Negligence occurs in Colorado when a person fails to act in a way that a reasonably careful person would act in the same situation. When this lack of care causes a person to be injured, the victim may sue the negligent party for money damages.
Proving Negligence in Colorado
To prove negligence occurred, a person who is injured (the plaintiff) must prove:
- that the person being sued (the defendant) owed a duty of care to the plaintiff;
- that the defendant breached that duty of care;
- that the defendant’s breach was the cause of the injury; and
- that the plaintiff sustained injuries that can be quantified in monetary damages.
In determining whether a person breached a duty of care, the jury will consider:
- whether a reasonable person
- of ordinary prudence
- would have acted in the same way
- in the same circumstances.
Burden of Proof
In civil cases in Colorado, a plaintiff must prove his or her case by a “preponderance of the evidence.” A case is proven by a preponderance of the evidence if the plaintiff shows that a fact is more probable than not to have existed or to be true.
This is not as high a burden as the “beyond a reasonable doubt” standard that applies to criminal cases. If a jury believes the plaintiff by 51%, then the standard is met.
Negligence per se
Under Colorado law, negligence per se occurs when a person violates a legal rule or statute. If a person violates a law, it is presumed that he or she acted negligently. To prove a negligence per se case, a plaintiff must prove that:
- the defendant violated a statute, law, or regulation;
- the statute in question was created to prevent the same type of injury suffered by the plaintiff;
- the victim is part of the “class” of people who were meant to be protected by the law; and
- the defendant’s violation of the law was the cause of the victim’s injuries.
Modified Comparative Fault
Colorado uses a modified comparative fault / negligence rule when figuring out how damages are awarded and adjusted. Adjustments are made based on how much the plaintiff was at fault for his or her own injuries, if at all.
If a plaintiff is 20% at fault for his or her injuries, the damages awarded to him or her by a jury will be reduced by 20%.
However, if a plaintiff is 50% or more at fault for his or her injuries, that plaintiff is not entitled to recover at all. The jury makes the decision about who was at fault and by what percentage.
Damage Caps
Damage caps limit the amount of damages that can be awarded in certain cases. Certain “caps” apply to Colorado negligence cases.
There are caps in place in Colorado depending on the type of claim or type of damages:
- Medical Malpractice: $1,000,000 total damages of which no more than $300,000 may be for pain and suffering.
- Pain and Suffering: $250,000 plus inflation unless clear and convincing evidence exists, then it is up to $500,000 (plus inflation), and unless permanent physical impairment, in which case there is no cap.
- Dram Shop: $150,000 total recovery against a tavern or bar per person injured.
- Wrongful Death: Pain & Suffering limited to $250,000 or $500,000 plus inflation unless by medical negligence, then $300,000. No cap if the death was the result of a felonious killing.
- Punitive Damages: A punitive award may not exceed the actual damages awarded unless the court determines certain criteria are met, at which time it is not to exceed 3 times the actual damages awarded.
Below, our Colorado personal injury attorneys address frequently asked questions about negligence in personal injury lawsuits and the injuries you may have suffered:
- 1. What is “negligence” in Colorado?
- 2. What elements do I have to prove to show a person was negligent?
- 3. What is the burden of proof in negligence cases?
- 4. What is negligence per se?
- 5. What is “modified comparative fault?”
- 6. Are there “caps” on damages in Colorado negligence cases?
Also see our article on gross negligence in Colorado.
Negligence occurs in Colorado when a person fails to act with due care.
1. What is “negligence” in Colorado?
Negligence occurs in Colorado when a person fails to act in a way that a reasonably careful person would act in the same situation.
This is a question for a jury to decide, and the jury will consider whether certain “elements” were met in finding whether or not negligence occurred.
2. What elements do I have to prove to show a person was negligent?
To prove negligence occurred, a person who is injured (the plaintiff) must prove:
- that the person being sued (the defendant) owed a duty of care to the plaintiff;
- that the defendant breached that duty of care;
- that the defendant’s breach was the cause of the injury; and
- that the plaintiff sustained monetary damages from his or her injuries. 1
2.1 When does a duty of care exist?
The jury will consider certain factors when finding if a duty of care exists between the plaintiff and defendant:
- the risk involved in the defendant’s conduct;
- the foreseeability and likelihood of injury;
- the importance of guarding against the harm that occurred; and
- the consequences of placing the burden of care on the defendant. 2
Examples of common duties include:
- the duty to keep a dog penned up and from biting anyone;3
- the duty to drive safely to not cause injury;
- the duty to handle a firearm safely; or
- the duty to avoid any other action that could cause harm.
2.2 When does a person breach the duty of care?
In determining whether a person breached a duty of care, the jury will consider:
- whether a reasonable person
- of ordinary prudence
- would have acted in the same way
- in the same circumstances.
The “reasonable person” standard is important, as hindsight is meant to be avoided, and the circumstances of the injury are considered as a whole.
2.3 How do I prove the defendant caused my injuries?
Causation is the legal term for when a person is the cause of another person’s injuries. A person is the “proximate cause” of another person’s injuries when:
- “but for” the defendant’s actions,
- the harm would not have occurred. 4
Courts and juries will also consider whether the defendant’s actions or conduct were a “substantial factor” in causing the injury suffered by the plaintiff. 5
The defendant’s conduct does not have to be the only cause, but instead must have caused some part of the injuries the plaintiff suffered.
2.4 How do I prove damages in a Colorado negligence case?
To prove damages, a plaintiff must show that some injury occurred as the result of a defendant’s negligence. This can be proven by showing:
- medical bills;
- future medical costs;
- rehabilitation costs;
- pain and suffering damages;
- lost wages damages; and
- loss of consortium (companionship and sex with a spouse).
With the help of an experienced attorney, you will present evidence to the jury to prove your claim and to be awarded money damages.
3. What is the burden of proof in negligence cases?
In most civil cases in Colorado, including negligence cases, a plaintiff must prove his or her case by a “preponderance of the evidence.” A case is proven by a preponderance of the evidence if the plaintiff shows a fact is more probable than not to have existed or to be true.6
This is not as high a burden as the “beyond a reasonable doubt” standard that applies to criminal cases. If a jury believes the plaintiff by 51%, the standard is met.
4. What is negligence per se?
Negligence per se occurs when a person violates a law. If a person violates a Colorado law, it is presumed that he or she acted negligently. To prove a negligence per se case, a plaintiff must prove that:
- the defendant violated a statute, law, or regulation;
- the statute in question was created to prevent the same type of injury suffered by the plaintiff;
- the victim is part of the “class” of people who were meant to be protected by the law; and
- the defendant’s violation of the law was the cause of the victim’s injuries.7
If a person is found to have committed negligence per se, the plaintiff must still prove:
- the injury was caused by the defendant’s actions; and
- the amount of damages the plaintiff suffered.
5. What is “modified comparative fault?”
Colorado uses a modified comparative fault rule when figuring out how damages are awarded and adjusted. Adjustments are made based on how much the plaintiff was at fault for his or her own injuries, if at all.8
If a plaintiff is 20% at fault for his injuries, the damages awarded to him by a jury will be reduced by 20%.
However, if a plaintiff is 50% or more at fault for his or her injuries, that plaintiff is not entitled to recover at all. The jury makes the decision about who was at fault and by what percentage.
5.1 What are some examples of how this works?
Some examples can help demonstrate how the modified comparative fault rule works in real life:
Example 1: James is rear-ended by Clancy, who was speeding and on his cell phone. The jury determines Clancy was 100% at fault. James is entitled to keep the entire amount the jury awards in damages.
Example 2: Jose and Francois are both speeding while driving next to one another on the highway. Francois then crosses into the next lane without checking his blind spot, hitting Jose and causing him serious injuries. The jury determines that Jose is 10% at fault (for speeding) and Francois is 90% at fault. If Jose is awarded $100,000 in damages, the award will be reduced by 10%. He will end up with $90,000 instead.
Example 3: Anna is driving through an intersection on a two-lane road and begins to change lanes without signaling. Claire is approaching the same intersection, which has a stop sign, but she runs the stop sign without even slowing, thinking she can just be in the right lane and avoid being hit. However, the two vehicles crash because Claire ran the stop sign and Anna changed lanes without signaling. Claire sues Anna for damages. The jury finds Anna to be 30% at fault (for changing lanes without signaling) and Claire to be 70% at fault (for running the stop sign). Claire is not allowed to recover any amount of her damages under the rule because she is 50% or more at fault.
6. Are there “caps” on damages in Colorado negligence cases?
Certain “caps” apply to Colorado negligence cases. Damage caps limit the amount of damages that can be awarded in certain cases.
There are caps in place in Colorado depending on the type of claim or type of damages:
- Medical Malpractice: $1,000,000 total damages, of which no more than $300,000 may be for pain and suffering.
- Pain and Suffering: $250,000 plus inflation, unless clear and convincing evidence, then up to $500,000 (plus inflation), and unless permanent physical impairment, in which case there is no cap.
- Dram Shop: $150,000 total recovery against a tavern or bar per person injured.
- Wrongful Death: Pain & Suffering limited to $250,000 or $500,000, plus inflation, unless by medical negligence, then $300,000. No cap if the death was as the result of a felonious killing.
- Punitive Damages: A punitive award may not exceed the actual damages awarded unless the court determines certain criteria are met, then they are not to exceed 3 times the actual damages awarded.
Call us for help…
For questions about negligence cases in Colorado or to confidentially discuss your case with one of our skilled Colorado personal injury attorneys, do not hesitate to contact us.
We represent clients in and around Denver, Colorado Springs, Aurora, Fort Collins, Lakewood, and several nearby cities.
Legal References:
- Lopez v. Trujillo, 399 P.3d 750 (Ct. App. Div. 1 2016). (To prove a prima facie negligence claim, the plaintiff must prove: (1) the defendant owed a legal duty of care; (2) the defendant breached that duty; (3) the plaintiff was injured; and (4) the defendant’s breach caused that injury. citing Vigil v. Franklin, 103 P.3d 322, 325 (Colo.2004). Of these elements, duty is the threshold element.)
- Id. (citing Taco Bell, Inc. v. Lannon, 744 P.2d 43, 46 (Colo. 1987)).
- Snow v. Birt, 968 P.2d 177, 179 (Colo. App. 1998) (concluding that the defendants owed a common law duty of care to protect guests in their home from a dog).
- Reigel v. Sava Senior Care L.L.C., 292 P.3d 977 (Colo. App. Div. 1 2011).
- N. Colo. Med. Ctr. v. Comm. on Anticompetitive Conduct, 1996-1 Trade Cases P 71, 368 (Sup. Ct. of Colo. En Banc 1996).
- City of Littleton v. Industrial Claim Appeals Office, 370 P.3d 157 (Sup. Ct. Colo. 2016). (Proof “by a preponderance of the evidence” demands only that the evidence must “preponderate over, or outweigh, evidence to the contrary.”)
- Woods v. Delgar Ltd., 226 P.3d 1178 (Colo. Ct. App. Div. VI 2009). (Negligence per se is a common law doctrine that rests on the principle that a legislative enactment can prescribe the standard of conduct of a reasonable person, such that violation of the enactment constitutes negligence.)
- CRS 13-21-111 (Negligence cases–comparative negligence as a measure of damages).