Chapter 42 - § 42.5 • REMEDIES
| Jurisdiction | Colorado |
Remedies for the tort of trespass include actual damages reflecting diminution in value and/or costs of restoration and repair,68 consequential damages,69 nominal damages,70 equitable relief, and, in some cases, exemplary damages.
A trial court may fashion a remedy at law or in equity.71 In the case of a continuous trespass where the remedy at law is inadequate and further trespasses of the same kind are threatened, an injunction may be appropriate.72 For example, a trial court may force the sale of an encroaching structure through its equitable power.73 A trial court may also order that an encroaching structure be removed.74
A plaintiff is entitled to nominal damages for trespass even if he or she fails to present sufficient evidence of actual damages.75 Consequently, someone who intentionally enters land possessed by another may be liable for trespass, regardless of whether he or she caused harm to any legally protected interest of the landowner.76
Compensation for injury resulting from trespass may include diminution of market value;77 costs of restoration;78 loss of use of the property;79 and loss of enjoyment, annoyance, discomfort, and inconvenience to the occupant.80 Discomfort and annoyance for which damages may be recovered generally refer to distress arising out of physical discomfort, irritation, or inconvenience caused by odors, pests, noise, and the like.81 Plaintiffs in trespass actions generally may not be compensated for purely emotional distress.82
While market value before and after the injury is ordinarily the rule applied to measure damages to real property, repair or restoration cost may be more appropriate where the property has no market value, repairs have already been made, or the property is a recently acquired private residence and the plaintiff's interest is in having the property restored.83 However, where a plaintiff sold the relevant property before trial and it was apparent the property had a market value and the plaintiff would not repair or replace the damaged parts of the property, the plaintiff's only actual loss was the amount by which the market value of the property had diminished as a result of the defendants' actions.84 And, in an early case, the Colorado Supreme Court held that the measure of damages for injury to or destruction of a building is not simply the difference between the building's value before and after the injury.85 Because a property with no market value may nonetheless incur actual property damage due to trespass, it is for the jury to determine what damages will make good the loss.86
Exemplary damages may be awarded in trespass cases where a defendant's conduct is determined to be willful and wanton.87 For example, the evidence supported exemplary damages in Evans v. Colorado Ute Electric Ass'n, Inc., where a trespass and illegal use of the plaintiff's land continued after the defendant was advised of the trespass, because the defendant's action constituted a willful and wanton disregard of the plaintiff's rights.88 But exemplary damages were inappropriate in Rosenbaum v. Mathews, where the defendants believed they were entitled to a right of way for the small irrigation ditch they had constructed across the plaintiff's property and were, arguably, merely attempting to exercise what they believed were their legal rights.89
The exemplary damages 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.90 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.91 Generally, the amount of...
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