Chapter 32 - § 32.5 • REMEDIES

• Jurisdiction: Colorado

§ 32.5 • REMEDIES

Ordinarily, the remedy for premises liability is damages. An invitee, licensee, or trespasser may recover for damages as described by statute. A licensee may recover under all of the circumstances under which a trespasser could recover, and an invitee may recover under all of the circumstances under which a trespasser or a licensee could recover.¹⁷²

A plaintiff can assert a claim for economic damages (such as medical expenses and lost wages), physical impairment, and non-economic losses (including pain and suffering, inconvenience, emotional stress, and impairment of the quality of life suffered by the injured party).¹⁷³

The collateral source rule allows a plaintiff to seek full recovery from a tortfeasor in some circumstances even though an independent source has compensated the plaintiff in full or in part for the loss.¹⁷⁴ The rule has two components: (1) a post-verdict setoff rule, codified in C.R.S. § 13-21-111.6; and (2) a pre-verdict evidentiary component, precluding the admission of evidence about the plaintiff's receipt of collateral source compensation.¹⁷⁵ At common law, the collateral source rule provided that "compensation or indemnity received by an injured party from a collateral source, wholly independent of the wrongdoer and to which he has not contributed, will not diminish the damages otherwise recoverable from the wrongdoer."¹⁷⁶ The Colorado legislature has abrogated the common law collateral source rule except as to benefits received as a result of a contract. C.R.S. § 13-21-111.6 states:

In any action by any person or his legal representative to recover damages for a tort resulting in death or injury to person or property, the court, after the finder of fact has returned its verdict stating the amount of damages to be awarded, shall reduce the amount of the verdict by the amount by which such person . . . has been or will be wholly or partially indemnified or compensated for his loss by any other person, corporation, insurance company, or fund in relation to the injury, damage, or death sustained; except that the verdict shall not be reduced by the amount by which such person, his estate, or his personal representative has been or will be wholly or partially indemnified or compensated by a benefit paid as a result of a contract entered into and paid for by or on behalf of such person. The court shall enter judgment on such reduced amount.

(Emphasis added.) The italicized language is commonly referred to as "the contract exception to the collateral source statute."¹⁷⁷ "By including the contract exception, the General Assembly 'chose to allow a plaintiff to obtain the benefit of his contract, even if the award resulted in a double recovery.'"¹⁷⁸ The contract exception includes Medicaid benefits.¹⁷⁹ The contract exception also applies in cases involving the damages cap under Colorado's Health Care Availability Act, C.R.S. §§ 13-64-101 through -503.¹⁸⁰

Regarding the evidentiary component of the collateral source rule, the rule "excludes evidence of collateral source benefits because such evidence could lead the fact-finder to improperly reduce the plaintiff's damages award on the grounds that the plaintiff already recovered his loss from the collateral source."¹⁸¹ The collateral source rule prohibits the admission into evidence of amounts paid "even for the purpose of determining the reasonable value of medical services rendered."¹⁸²

In 1986, the Colorado legislature set the limitations on recovery for non-economic damages in civil actions other than medical malpractice at $250,000, unless the court finds "clear and convincing" evidence to increase the award (up to a maximum of $500,000 per person).¹⁸³ Based on a 1997 amendment, these totals are adjusted periodically for inflation.¹⁸⁴ The existence of these limitations and exceptions are not disclosed to the jury.¹⁸⁵

In addition, recovery...