Chapter 34 - § 34.8 • REMEDIES

• Jurisdiction: Colorado

§ 34.8 • REMEDIES

Injured plaintiffs may recover economic and noneconomic damages in misrepresentation actions. Most economic damages are available. However, the economic loss rule bars recovery for purely economic losses in strict products liability or in negligence cases.⁷⁵ "Economic loss is defined generally as damages other than physical harm to person or property."⁷⁶ Additionally, the plaintiff may not recover the value of the damage to the product itself under a products liability claim.⁷⁷ Colorado has adopted the reasoning of the U.S. Supreme Court, explaining that to allow a plaintiff to recover for the cost of the product "would eliminate the distinction between warranty and strict products liability."⁷⁸ There is one narrow exception to this rule: "where the damage is only to the product itself" the plaintiff may recover only in "situations where there was a failure to warn that the defect could cause injury or damage."⁷⁹

The damages available for strict liability misrepresentation are the same as those generally recoverable in products liability actions.⁸⁰ Compensatory damages may be recovered for medical expenses, pain and suffering, disfigurement, lost earnings, and impaired earning capacity. Noneconomic damages are capped by statute at $250,000 unless the court finds clear and convincing evidence to justify increasing that cap to an amount not to exceed $500,000,⁸¹ with both amounts being subject to statutory adjustment tied to the Consumer Price Index.⁸²

Subject to the requirements of applicable Colorado statutes, the trier of fact may also award exemplary damages to a products liability plaintiff.⁸³ The statute provides that the jury may award reasonable exemplary damages in a civil action where (1) damages are assessed by a jury for injury to a person or personal or real property and (2) the injury is attended by fraud, malice, or willful and wanton conduct.⁸⁴ Exemplary damages may only be awarded when the party asserting the claim proves beyond a reasonable doubt the commission of a wrong under the circumstances set forth in the punitive damages statute.⁸⁵ Generally, the amount of exemplary damages cannot exceed the amount of actual damages awarded to the injured party.⁸⁶ However, exemplary damages may be trebled if, while the action is pending, the defendant (1) continues or repeats the behavior that is the subject of the claim in a willful and wanton manner, or (2) acts in a willful and wanton manner that further aggravates the...