Colorado Injury Lawyer & Attorney : Mac Hester : Personal Injury, Auto Accident, Medical Malpractice : Serving Denver, Colorado Springs, Aurora

Most attorneys and judges don't understand negligence per se. They treat it the same as negligence; i.e., at trial, they talk about the "reasonable person" and the "reasonable care" standard of liability with no differentiation between negligence and negligence per se. But the reasonable person/reasonable care standard does not apply to many negligence per se claims. Why?

Because the standard of care in a negligence per se claim based on a statute is the standard of care contained in the statute. And, the standard of care is often not the reasonable person standard.

Take, for example, C.R.S. 42-4-702 (left turn statute): "The driver of a vehicle intending to turn left within an intersection...shall yield the right-of-way to any vehicle approaching from the opposite direction which is within the intersection...."

The left turn statute does not contain a standard of reasonable care.

Consider, on the other hand, C.R.S. 42-4-1402 (careless driving statute): "Any person who drives any motor vehicle, bicycle, or motorized bicycle in a careless and imprudent manner, without due regard for the width, grade, curves, corners, traffic, and use of the streets and highways and all other attendant circumstances, is guilty of careless driving."

The careless driving statute does contain a standard of reasonable care.

So how should you present (or exclude) evidence and law on a negligence per se claim that doesn't have a reasonable care standard?

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Negligence claims in Colorado require the four elements that were drilled into your skull during Torts class in law school: (1) Duty; (2) Breach of duty; (3) Causation; and (4) Damage.

The standard of care is the usual reasonable person standard; i.e., a person is required is exercise the degree of care or skill that a reasonable person would have exercised in the same or similar circumstances.

Colorado is a comparative negligence state. The plaintiff cannot recover if his/her percentage of fault is greater than or equal to the defendant's. At trial, the jury is required to assign percentages of fault. With one plaintiff and one defendant, it's a 50/50 rule. A 50/50 verdict is a defense verdict. Fortunately, that outcome can be explained to the jury.

Pro Rata liability: By statute, a defendant is liable only for his/her percentage of fault, and the plaintiff cannot recover damages commensurate with his/her percentage of fault.

Non-Parties at Fault: The defendant can designate persons or entities who are not parties to the action but who may share some percentage of fault.

The plaintiff's percentage of fault is compared with the total of the defendants' fault. For example, if the plaintiff is 30% at fault, Defendant A is 50% at fault, Defendant B is 10% at fault, and Non-Party is 10% at fault and the verdict is for the plaintiff in the amount of $100,000, then Defendant A is liable for $50,000, Defendant B is liable for $10,000, and Non-Party is not legally liable because the Non-Party was not a party to the action and did not have his/her day in court. The plaintiff recovers $60,000.

NOTE: (1) There is "pure" comparative fault in Product Liability claims. (2) The Colorado legislature preempted all common law claims for "premises liability" with the enactment of the "Premises Liability" statute - which made an action under the statute  the exclusive remedy for injuries caused by conditions or activities upon land. The inartfully drafted statute and the subsequent cases attempting to interpret and apply the statute have created confusion and chaos regarding negligence claims and defenses when persons are injured on premises. This will be addressed in a subsequent "Premises Liability " article.

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