Chapter 9 - § 9.4 • DEFENSES
| Jurisdiction | Colorado |
§ 9.4.1—Comparative Negligence
It is unclear whether the plaintiff's negligence or assumption of the risk61 may be a defense to a breach of fiduciary duty claim.62 Colorado has codified the affirmative defense of comparative negligence, referred to in the statute as comparative fault.63 Under the statute, a plaintiff's negligence does not bar recovery in an action to recover damages for negligence64 resulting in death or in injury to person or property, provided the plaintiff's negligence was not as great as that of the person from whom recovery is sought.65 Interpreting the statute, the Colorado Supreme Court has ruled that "[a] plaintiff may . . . recover as long as the combined fault of all named tortfeasors, whether joined as defendants or designated as nonparties, is more than that attributable to the person for whose injury recovery is sought."66 Any damages allowed must be reduced in proportion to the amount of negligence attributable to the plaintiff; however, exemplary damages are not subject to reduction by the comparative fault statute because such damages are awarded based on the defendant's misconduct.67
Comparative negligence is applicable only where evidence is presented that would substantiate a finding that both parties are at fault.68 It is inapplicable where the defendant cannot or does not prove that the plaintiff was negligent.69 To the extent a breach of fiduciary duty claim is considered an intentional tort,70 the defense of comparative negligence would also be inapplicable.71
§ 9.4.2—Designation of a Nonparty at Fault
In civil liability cases, C.R.S. § 13-21-111.5 allows defendants to designate as a nonparty at fault an individual or entity "wholly or partially at fault" for the plaintiff's alleged damages.72 By designating another person or entity as a nonparty at fault, the defendant has the opportunity to allocate the damages among all responsible parties because the finder of fact will be required to apportion liability among the defendants and the nonparties at fault. An unidentified or unknown person may be designated as a nonparty pursuant to the statute.73 The designated nonparty may even be immune from suit.74 A nonparty at fault must be designated in a pleading that complies with C.R.S. § 13-21-111.5(3)(b).75 Specifically, the defendant must allege facts that establish the elements of negligence against the potential nonparty.76 A defendant wishing to designate a person or entity as a nonparty at fault must do so "within 90 days following commencement of the action unless the court determines that a longer period is necessary."77 If the nonparty is a licensed health care professional and the defendant alleges that the nonparty has committed professional negligence, then the designating defendant must comply with the certificate of review requirements set forth in C.R.S. § 13-20-602.78 In the case of non-health-care professionals, the reader would be well advised to determine whether the certificate of review requirement applies.79
Colorado provides a variety of pattern jury instructions and special verdict forms related to non-parties at fault, which vary depending on the number of defendants and the number of designated non-parties.80
§ 9.4.3—Pro Rata Liability
The pro rata liability statute81 may be applied in an action for breach of fiduciary duty.82 However, it is not applicable to breach of fiduciary duty claims against a court-appointed fiduciary in a probate matter.83
§ 9.4.4—Failure to File Certificate of Review
By statute,84 in an action for damages or indemnity based on the alleged professional negligence85 of a licensed professional, the plaintiff or the plaintiff's attorney,86 must file a certificate of review87 with the court within sixty days after the service of the complaint unless, for good cause shown, the court determines that a longer period is necessary.88 Failure to file a certificate of review will result in dismissal of the complaint.89
§ 9.4.5—Statute of Limitations
Regardless of the theory on which suit is brought, or against whom suit is brought, all civil actions for breach of trust or breach of fiduciary duty must be commenced within three years after the cause of action accrues.90 An action accrues on the date both the injury and its cause are known or should have been known in the exercise of reasonable diligence.91
§ 9.4.6—Shareholder Standing
Generally, shareholders lack standing to bring individual actions against a corporation and must sue in a derivative action. But a shareholder may have standing to bring an individual action where the shareholder has suffered an injury unique from other shareholders.92
§ 9.4.7—Governmental Immunity
A governmental entity or employee against which a claim for breach of fiduciary duty is alleged may assert governmental immunity as an affirmative defense.93 As a general rule, the Colorado Governmental Immunity Act (CGIA) grants public entities and employees immunity from claims for injury that lie in tort or could lie in tort, regardless of the type of action or the form of relief the claimant chooses.94 Public employees are immune from tort liability for injuries caused by the actions or omissions within the scope of their employment, unless their conduct was willful and wanton.95 The CGIA exempts only eight categories of governmental activity from such immunity.96 These eight waiver categories are not mutually exclusive. Rather, each waiver provides an alternative avenue for exposing a public entity to possible tort liability.97
The CGIA requires that a person claiming injury by a public entity or employee — whether or not by a willful and wanton act or omission — must file a written notice of the claim within 182 days after the date of the injury's discovery, regardless of whether the person then knew all of the elements of a claim or cause of action for the injury.98 The CGIA also expressly delineates the information that must be included in, the recipient of, and the delivery method for the required written notice.99 Compliance with the statute is a jurisdictional prerequisite to any action brought under the GIA, and failure to comply forever bars any action.100
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Notes:
[61] In Colorado, assumption of risk is treated as a form of comparative negligence, and as a result, is governed by the statute governing comparative negligence: "[a]ssumption of risk by a person shall be considered by the trier of fact in apportioning negligence pursuant to section 13-21-111." C.R.S. § 13-21-111.7. Cases both before and after the enactment of C.R.S. § 13-21-111.7 indicate that assumption of risk has essentially been subsumed under the doctrine of comparative negligence in Colorado. Kreuser, 560 P.2d at 108 ("the doctrine of assumption of risk should be treated under comparative negligence in the same manner as other negligent conduct by a plaintiff"); Harris, 810 P.2d at 233 (affirming the constitutionality of C.R.S. § 13-21-111.7 and citing with approval Brown's assessment that "assumption of risk should be treated under comparative negligence"). See also Hendrickson v. Doyle, 150 F. Supp. 3d 1233, 1242 (D. Colo. 2015) (Colorado no longer treats comparative negligence and assumption of the risk as separate issues).
The statutory definition of assumption of risk mimics the common law definitions of assumption of risk: "[a] person assumes the risk of injury or damage if he voluntarily or unreasonably exposes himself to injury or damage with knowledge or appreciation of the danger...
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