ASSUMPTION OF RISK
Assumption of risk is an affirmative defense that will reduce but not bar recovery in a products liability action. Colo. Rev. Stat. Ann. §13-21-111.7 .
CAPS ON NONECONOMIC DAMAGES
Noneconomic damages in civil actions other than medical malpractice may not exceed $250,000 unless a larger award (not to exceed $500k) is justified by clear and convincing evidence. Derivative noneconomic damages must also be justified by clear and convincing evidence, and may not exceed $250,000. Colo. Rev. Stat. Ann. §13-21-102.5 .
Colo. Rev. Stat. Ann. §13-21-102.5 will be amended effective 7/1/04 to add a section pertaining to breach of contract actions. Pursuant to the new amendment, noneconomic damages for breach of contract will only be allowed (A) if specifically authorized in the contract, or (B) in first party claims against an insurer, where clear and convincing evidence shows a willful and wanton breach of contract by insurer. S.B. 04-115, 64th Gen. Assemb., 2d. Reg. Sess. (Colo. 2004) .
COLLATERAL SOURCE RULE
In civil actions arising from personal injury, death, or property damage, after the verdict has been returned, the court shall reduce it by the amount the person has been or will be wholly or partially indemnified or compensated for his loss by any other person, corporation, insurance company, or fund. An exception is made where the benefit is paid as a result of a contract entered into and paid for by or on behalf of such person. Colo. Rev. Stat. Ann. §13-21-111.6 .
Pure comparative fault applies to the reduction of damages in all product liability actions, including breach of express and implied warranty. Colo. Rev. Stat. Ann. §§13-21-406(1) .
Ordinary contributory negligence, consisting of failure to exercise due care to discover a defect or to guard against its possible existence, is not a defense to strict liability that will bar recovery. Union Supply Co. v. Pust, 583 P.2d 276 (Colo. 1978) .
The negligence of multiple defendants will be combined when compared against the plaintiff's negligence. Damages may be recovered from multiple defendants found liable unless the plaintiff was 50 percent or more at fault. Mountain Mobile Mix, Inc v. Gifford, 660 P.2d 883 (Colo. 1983) .
As long as plaintiff alleges physical injury to person or property, recovery is allowed under strict liability for such injuries even when the only damages sustained are to the defective product itself. However, plaintiff may not recover for commercial or business losses. Hiigel v. General Motors Corp., 544 P.2d 983 (Colo.1975) .
JOINT & SEVERAL LIABILITY
Colorado has abolished the common law doctrine of joint and several liability and in an action brought as a result of a death or an injury to person or property, defendants are only liable for their proportional share. Colo. Rev. Stat. Ann. §13-21-111.5 .
Plaintiffs and defendants may designate nonparties as being wholly or partially at fault to have a court consider their percentage of negligence or fault in apportioning ultimate liability. Barton v. Adams Rental, 938 P.2d 532 (Colo. 1995) .
A designated non-party who is found at fault is not liable for the judgment amount apportioned to it. Similarly, the designated non-party is not bound by the determination of liability or the amount of damages in a subsequent action against it. Harvey v. Farmers Ins. Exch., 938 P.2d 34 (Colo. Ct. App. 1998) .
Exemplary damages are awarded only pursuant to statute, and the elements must be established beyond a reasonable doubt. They are statutory allowed in all civil actions in which damages are assessed by a jury for a wrong done to the person or to personal or real property, and the injury complained of is attended by circumstances of fraud, malice, or willful and wanton conduct. Exemplary damages must be reasonable, and may not exceed actual damages. However, exemplary damages may be increased up to three times actual damages if the defendant continues to misbehave during the course of the trial. Colo. Rev. Stat. Ann. §§13-25-127(2) and 13-21-102 .
Exemplary damages are not allowed under the survival statute or in wrongful death actions. They are also not allowed after the death of person against whom damages are claimed. Mangus v. Miller, 535 P.2d 219 (Colo. 1975) ; Colo. Rev. Stat. Ann. §13-20-101 .
RIGHT TO CONTRIBUTION
Colorado has adopted their version of the Uniform Contribution Among Tortfeasors Act. The Colorado's statute uses relative degrees of fault in determining pro rata shares and a provision was added which regards public contracting for construction. Colo. Rev. Stat. Ann. §§13-50.5-101 to 106 .
Under product liability, the defendant has the right to seek contribution from a joint tortfeasor for the excess amount the defendant paid in relation to its share of liability for the plaintiff's injuries. Thus, a defendant's right of contribution from joint tortfeasors is not abrogated by the abolishment of joint and several liability. Brochner v. Western Ins. Co., 724 P.2d 1293 (Colo. 1986) .
No strict liability action for product liability shall be commenced against a seller unless the seller is also a manufacturer. However, when jurisdiction cannot be obtained over the manufacturer, the principal distributor or seller over whom jurisdiction can be obtained is deemed the manufacturer and may be subject to strict product liability as such. Colo. Rev. Stat. Ann. §13-21-402.
A product liability action may not be commenced or maintained against a manufacturer or seller if the product was misused in a manner which could not reasonably be expected, and that misuse was a cause of the injury, property damage, or death. Colo. Rev. Stat. Ann. §13-21-402.5 .
There is a rebuttable presumption that the product was not defective and the manufacturer or seller was not negligent if prior to sale, the product conformed to the state of the art, or any applicable code, standard, or regulation promulgated by the U.S., this State, or any agency thereof. Noncompliance with any such standard creates a rebuttable presumption that the product was defective or negligently manufactured. Colo. Rev. Stat. Ann. §13-21-403 .
Plaintiff's recovery will be barred if misuse of a product is determined to be the sole cause of damages. States v. R.D. Werner Co., 799 P.2d 427 (Colo. Ct. App. 1990) .
STATUTES OF LIMITATION
Action against manufacturer or seller of product must be brought within two years, except in the cases of hidden defects, prolonged exposure to hazardous material, misrepresentation, or fraudulent concealment. Colo. Rev. Stat. Ann. §13-80-106 .
STATUTES OF REPOSE
Ten years after a product is first sold for consumption, there is a rebuttable presumption that the product was not defective, the manufacturer and seller were not negligent, and that all warnings and instructions were adequate. Colo. Rev. Stat. Ann. §13-21-403 .
There are no exclusive Products Liability statutes under this category.