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

Your own insurance company owes a duty of good faith and fair dealing to you, its insured, because of your contract (the insurance policy) with the insurance company and because it is the law of Colorado. This is a "first party" contract.

The insurance company for the person or entity that  injured or damaged you (the liability insurer) does not owe a duty of good faith and fair dealing to you. The liability insurer owes a duty of good faith and fair dealing to its own insured, the person or entity that injured or damaged you. You are in a "third party" relationship with the liability insurer. So the liability insurer is not required to treat you fairly or to deal with you in good faith - which is why they usually don't.

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Q.  What is a wrongful death action?

A.  A wrongful death action is a lawsuit for damages filed by the spouse (not ex-spouse) and/or heirs of a deceased adult or by the parent(s) of a deceased unmarried adult who had no children or by the parent(s) of a deceased unmarried minor who had no children against the person or entity that wrongfully killed the deceased.

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Q.  If I am injured while skiing or at a ski resort, can I recover for my injuries and damages?

A.  Yes, depending upon the situation. You cannot recover if you are injured as a result of an "inherent risk" of skiing. An example of an inherent risk of skiing is that skis will slide on snow and you could lose your balance and fall down and get hurt. On the other hand, a skiier slamming into your back is not, by the express terms of the Colorado Ski Safety Act, an inherent risk of skiing - otherwise, skier collisions could arguably be considered an inherent risk of skiing.

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An automobile collision with a semi-truck and trailer, even at low speed, generates many times the injury producing forces that are generated in a similar car to car crash - because of the much greater mass (weight) of the semi-truck/trailer (Physics geeks: See Newton's Laws of Motion - especially the 2nd Law). The collision may not have caused signigicant visible damage to the car, but there is often damage under the surface: a bent frame or bent or broken bumper supports. The collision forces that are not absorbed by the vehicle are transferred to the vehicle occupant - who is instantly propelled by the force of the collision until stopped by the seat belt or interior of the car. This instant acceleration/deceleration of the body can, and usually does, cause injury - because the crash forces cause parts of the body, usually the spine, and especially the cervical spine (neck), to move in abnormal ways and beyond the usual ranges of movement.

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Most people don't know what a lawsuit looks like, and that may be a good thing. But for those curious to see what a lawsuit (the complaint)  actually looks like,  I decided to post an example here. It's a simple auto accident injury form complaint for Colorado District Court (The caption in this example form is different from an actual complaint caption; it has been simplified). Of course, this is just an illustrative  form and should not be used "as is" in any particular case. This complaint involves one Plaintiff and only two Defendants and only three claims for relief, so it's pretty simple. But don't let the simplicity fool you, seemingly simple cases can involve complex legal considerations that are not necessarily visible in the complaint. An attorney should still be retained to draft a complaint specifically tailored to the individual case.

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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.

 Fort Collins Injury Attorney Mac Hester

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