PART 2 DAMAGES FOR DEATH BY NEGLIGENCE
| Jurisdiction | Colorado |
Law reviews: For article, "Calculating Net Pecuniary Loss Under Colorado Wrongful Death Law", see 24 Colo. Law. 1257 (1995); for article, "The Colorado Wrongful Death Act", see 40 Colo. Law. 63 (May 2011).
■ 13-21-201. Damages for death. (1) When any person dies from any injury resulting from or occasioned by the negligence, unskillfulness, or criminal intent of any officer, agent, servant, or employee while running, conducting, or managing any locomotive, car, or train of cars, or of any driver of any coach or other conveyance operated for the purpose of carrying either freight or passengers for hire while in charge of the same as a driver, and when any passenger dies from an injury resulting from or occasioned by any defect or insufficiency in any railroad or any part thereof, or in any locomotive or car, or other conveyance operated for the purpose of carrying either freight or passengers for hire, the corporation or individuals in whose employ any such officer, agent, servant, employee, master, pilot, engineer, or driver is at the time such injury is committed, or who owns any such railroad, locomotive, car, or other conveyance operated for the purpose of carrying either freight or passengers for hire at the time any such injury is received, and resulting from or occasioned by the defect or insufficiency above described shall forfeit and pay for every person and passenger so injured the sum of not exceeding ten thousand dollars and not less than three thousand dollars, which may be sued for and recovered:
(a) In the first year after such death:
(I) By the spouse of the deceased;
(II) Upon the written election of the spouse, by the spouse and the heir or heirs of the deceased;
(III) Upon the written election of the spouse, by the heir or heirs of the deceased; or
(IV) If there is no spouse, by the heir or heirs of the deceased or the designated beneficiary, if there is one designated pursuant to article 22 of title 15, C.R.S., with the right to bring an action pursuant to this section, and if there is no designated beneficiary, by the heir or heirs of the deceased;
(b)(I) In the second year after such death:
(A) By the spouse of the deceased;
(B) By the heir or heirs of the deceased;
(C) By the spouse and the heir or heirs of the deceased; or
(D) By the designated beneficiary of the deceased, if there is one designated pursuant to article 22 of title 15, C.R.S., with the right to bring an action pursuant to this section, and the heir or heirs of the deceased.
(II) However, if the heir or heirs of the deceased commence an action under the provisions of sub-subparagraph (B) of subparagraph (I) of this paragraph (b), the spouse or the designated beneficiary of the deceased, if there is one designated pursuant to article 22 of title 15, C.R.S., with the right to bring an action pursuant to this section, upon motion filed within ninety days after service of written notice of the commencement of the action upon the spouse or designated beneficiary, shall be allowed to join the action as a party plaintiff.
(c)(I) If the deceased is an unmarried minor without descendants or an unmarried adult without descendants and without a designated beneficiary pursuant to article 22 of title 15, C.R.S., by the father or mother who may join in the suit. Except as provided in subparagraphs (II) and (III) of this paragraph (c), the father and mother shall have an equal interest in the judgment, or if either of them is dead, then the surviving parent shall have an exclusive interest in the judgment.
(II) For cases in which the father and mother are divorced, separated, or living apart, a motion may be filed by either the father or the mother prior to trial requesting the court to apportion fairly any judgment awarded in the case. Where such a motion is filed, the court shall conduct a post-judgment hearing at which the father and the mother shall have the opportunity to be heard and to produce evidence regarding each parent's relationship with the deceased child.
(III) On conclusion of the post-judgment hearing conducted pursuant to subparagraph (II) of this paragraph (c), the court shall fairly determine the percentage of the judgment to be awarded to each parent. In making such a determination, the court shall consider each parent's relationship with the deceased, including custody, control, support, parental responsibility, and any other factors the court deems pertinent. The court's determination of the percentage of the judgment awarded to each parent shall not be disturbed absent an abuse of discretion.
(d) For purposes of this section, "father or mother" means a natural parent of the deceased or a parent of the deceased by adoption. "Father or mother" does not include a person whose parental rights concerning the deceased were terminated pursuant to the provisions of title 19, C.R.S.
(2) In suits instituted under this section, it is competent for the defendant for his defense to show that the defect or insufficiency named in this section was not a negligent defect or insufficiency. The judgment obtained in an action under this section shall be owned by such persons as are heirs at law of the deceased under the statutes of descent and distribution and shall be divided among such heirs at law in the same manner as real estate is divided according to said statute of descent and distribution.
Source: G.L. § 877. G.S. § 1030. L. 07: p. 296, § 1. R.S. 08: § 2056. C.L. § 6302. CSA: C. 50, § 1. L. 51: p. 338, § 1. CRS 53: § 41-1-1. C.R.S. 1963: § 41-1-1. L. 88: (1)(a), (1)(b), and (1)(c) R&RE and (2) amended, pp. 603, 604, §§ 1, 2, effective July 1. L. 2000: (1)(c) amended and (1)(d) added, p. 169, § 1, effective July 1. L. 2009: (1) amended, (HB 09-1260), ch. 107, p. 441, § 6, effective July 1.
Cross references: For determination of death, see § 12-240-140.
I. General Consideration.
A. In General.
B. Damages.
II. Who May Recover.
III. Defenses.
A. In General.
B. Negligence Required.
C. Contributory Negligence.
Law reviews. For article, "Double Recovery for Wrongful Death by Public Carrier?", see 28 Dicta 131 (1951). For comment on McEntyre v. Jones, appearing below, see 31 Dicta 198 (1954). For article, "Damages for Death -- Limited or Unlimited", see 34 Dicta 32 (1957). For article, "In Defense of the Colorado Guest Statute", see 35 Dicta 174 (1958). For note, "Notes and Comments: What is a Life Worth?", see 34 Dicta 41 (1957). For article, "One Year Review of Torts", see 38 Dicta 93 (1961). For note, "Wrongful Death in Colorado", see 33 Rocky Mt. L. Rev. 393 (1961). For comment on Clint v. Stolworthy appearing below, see 33 Rocky Mt. L. Rev. 443 (1961). For note, "Personal Injury Damages in Colorado", see 35 U. Colo. L. Rev. 332 (1963). For comment on Herbertson v. Russell appearing below, see 35 U. Colo. L. Rev. 463 (1963). For comment, "Preconception Torts", see 48 U. Colo. L. Rev. 621 (1977). For case note, "Wrongful Death Recovery in Colorado -- A Reward for a Timely Demise", see 49 U. Colo. L. Rev. 431 (1978). For article, "Measures of Economic Loss in the Wrongful Death of a Child", see 14 Colo. Law. 392 (1985). For case note, "The Fetus as a Person in Wrongful Death Actions", 57 U. Colo. L. Rev. 895 (1986). For article, "Sitting Pretty in Probate: What Sandstead Means for Probate Jurisdiction", see 48 Colo. Law. 50 (Jan. 2019).
The statute is constitutional. Mollie Gibson Consol. Mining & Milling Co. v. Sharp, 5 Colo. App. 321, 38 P. 850 (1894).
All the provisions of the act are clearly expressed in the title. Mollie Gibson Consol. Mining & Milling Co. v. Sharp, 23 Colo. 259, 47 P. 266 (1894).
Purpose of the wrongful death statute is to compensate those who sustain pecuniary injury by the loss of the life of a spouse or parent. Niven v. Falkenburg, 553 F. Supp. 1021 (D. Colo. 1983).
This section largely extends the right of recovery for injuries resulting in the death of the injured party against the surviving wrongdoer, and specifically makes it applicable to transportation companies, and designates the persons who are entitled to bring suits, and who may reap the benefits of the recovery. It does not in terms cause the action against the wrongdoer to survive, for it is silent on the subject. Letson v. Brown, 11 Colo. App. 11, 52 P. 287 (1898).
This section creates a new cause of action. Denver & R. G. R. R. v. Frederic, 57 Colo. 90, 140 P. 463 (1914); Lindsay v. Chicago, B & Q. R. R., 226 F. 23 (7th Cir. 1915); Taylor v. Welle, 143 Colo. 37, 352 P.2d 106 (1960).
Right of action does not depend on whether injured person could have recovered. That the right of action under this section does not depend upon whether the injured person, if death had not ensued, could have recovered for personal injury, is one of the essential characteristics which distinguishes it from §§ 13-21-202 and 13-21-203, where the right exists only on the theory that the person injured would have had a cause of action had he not been killed. Denver & R. G. R. R. v. Frederic, 57 Colo. 90, 140 P. 463 (1914).
Such action did not exist at common law. No right of action for damages resulting from death through wrongful act or negligence was given by the common law, and such right exists only by virtue of this section. Martin v. Cuellar, 131 Colo. 117, 279 P.2d 843 (1955).
Wrongful death recovery did not exist at common law, but is purely a creature of statute. Niven v. Falkenburg, 553 F. Supp. 1021 (D. Colo. 1983); Hale v. Morris, 725 P.2d 26 (Colo. App. 1986).
This section must be strictly construed. Martin v. Cuellar, 131 Colo. 117, 279 P.2d 843 (1955); Estate of Kronemeyer v. Meinig, 948 P.2d 119 (Colo. App. 1997).
The judiciary should adhere to its previous constructions of this act. Where the general assembly has repeatedly reenacted this article which has received settled judicial construction, there can be no doubt that the legislative intent was that such...
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