Chapter 9 - § 9.3 • COMPARATIVE NEGLIGENCE AND ASSUMPTION OF THE RISK

• Jurisdiction: Colorado

§ 9.3 • COMPARATIVE NEGLIGENCE AND ASSUMPTION OF THE RISK

C.R.S. § 13-21-111 provides that in an appropriate case, the fact finder may consider the plaintiff's negligence in assessing liability. Where C.R.S. § 13-21-111 applies, the percentage of fault assessed to the plaintiff reduces the plaintiff's damages proportionately.³⁵⁹ If the plaintiff's proportion of negligence is equal to or greater than the defendant's, the plaintiff may not recover.³⁶⁰ Assumption of the risk, a species of comparative negligence, occurs when a homeowner voluntarily or unreasonably exposes himself or herself to injury or damage with knowledge or appreciation of the danger and risk involved.³⁶¹ A purchaser cannot be found to have assumed the risk of a latent, i.e., concealed and not discoverable through reasonable inspection, structural defect.³⁶² In an unpublished decision, the Colorado Court of Appeals upheld a jury verdict apportioning 70 percent of the fault to the homeowner for alleged construction defects where the homeowner was on-site every day during construction, attempted to repair many of the alleged defects himself, directed that work be performed a certain way, testified incorrectly about a work stoppage, and fired the contractor's subcontractors and hired his own to make certain repairs.³⁶³

Construction professionals sometimes assert a comparative negligence defense based on a property owner's failure to perform regular and adequate maintenance; property owners often respond that the maintenance and care instructions they were provided were inadequate or incomplete, or what has been characterized as required maintenance is, instead, a construction defect.³⁶⁴ One example of this dispute claim might be a property owner's alleged failure to maintain sealant or caulk in a joint or space between dissimilar building materials, such as between a window and surrounding stucco. If the space was constructed inadequately to securely hold the sealant so that the fenestration is watertight, no amount of maintenance can solve the problem. For discussion of the differences between comparative negligence and a failure to mitigate, see Sandgrund & Seidman, "Unique Construction Defect Damages Mitigation Issues," 44 Colo. Law. 33 (Jan. 2015).

One California case held it proper to admit evidence that lots adjoining the plaintiff-homeowner's lot also had "slid, creeped or moved" to establish that the movement of the plaintiff-homeowner's lot was "due to causes other than plaintiff's...