By Jacob F. Kimball
Personal Injury Attorney
The Gasper Law Group, PLLC
An important question with any claim for personal injuries is who was at fault for the accident. Many times, there are multiple parties at fault for an accident, including the injured person. Just because an injured person is partially at fault does not necessarily mean that he or she cannot recover damages. In Colorado, the questions of apportioning fault and recovery are determined by the principles of contributory negligence and comparative fault.
Contributory Negligence (Plaintiff’s Negligence)
“Contributory negligence” refers to the negligence of the plaintiff in causing an accident. (“Plaintiff” means the person who makes a claim for personal injuries.) A plaintiff is contributorily negligent if his or her own negligence played a part in causing his or her own injuries. In Colorado, the plaintiff cannot recover any damages if the plaintiff’s fault is equal to or greater than the fault of the defendant (i.e., the person against whom the plaintiff is making a claim). On the other hand, if the plaintiff is at fault, but his or her fault is less than the defendant’s fault, then the plaintiff can still recover, but the jury is required to reduce plaintiff’s damages by the percentage of fault attributable to the plaintiff.
To illustrate by example, suppose Jack makes a right turn through an intersection in front of Jill, but Jill is speeding through the intersection and driving drunk, and the two vehicles crash, so Jack sues Jill. If the jury determines that Jack and Jill were each 50% at fault, then Jack cannot recover any damages. Likewise, if the jury determines that Jack’s fault was 60% and Jill’s fault was 40%, then Jack gets nothing. On the other hand, if the jury determines that Jack was only 25% at fault and Jill was 75% at fault for the accident, then Jack can still recover damages, but those damages must be reduced by 25%.
In the insurance claims process, contributory negligence is very important, and you may not even know that the insurance company is reducing its offer because it thinks you were partially at fault for the accident. Oftentimes, insurance adjusters will make their own determinations of fault that differ from the law enforcement’s investigation. For example, a police officer may issue a defendant a ticket for causing the accident, but the insurance adjuster will nevertheless blame the plaintiff for at least contributing to the accident. The insurance adjuster will then reduce any offer by the amount he or she believes you were negligent. At trial, you may need the help of an accident reconstruction expert to prove the defendant’s fault, because traffic citations are typically not admissible evidence in Colorado. For these reasons, an experienced personal injury attorney can help you by proving the accident was not your fault, or that the accident was mostly defendant’s fault.
Comparative Fault (Negligence of Two or More Defendants)
Generally, if more than one person caused another person’s injuries, Colorado’s Pro-Rata Liability Statute (C.R.S. § 13-21-111.5) provides that fault should be “apportioned” appropriately. (Exceptions apply, such as when two or more persons act “in concert” or conspire with one another.) Under the statute, “apportionment of fault” or “pro-rata liability” means that each person accused of playing a role in causing the plaintiff’s injuries is assigned a percentage of fault by the jury or judge. Consider, for example, a chain reaction motor vehicle accident involving more than two vehicles. It may be that two or three cars were following the plaintiff too closely right before the accident and all ran into each other and then into plaintiff. In that circumstance, two or more persons’ negligence caused plaintiff’s injuries, so the judge or jury will need to sort out how fault should be divided among them. Once fault is divided among defendants, they will typically be responsible for a share of plaintiff’s damages proportionate to their degree of fault.
Comparative negligence can also be a factor in slip and fall or premises liability cases. For example, suppose a plaintiff slips on a patch of ice in front of a store. The store’s maintenance company may be at fault for failing to remove the ice, while the store’s landlord may be at fault for not fixing a leaky gutter that led to the formation of the ice. In this circumstance, a jury may apportion fault among the two negligent parties, which will then determine what percentage of the plaintiff’s damages each party will be responsible to pay.
Contributory negligence and comparative fault will shape how much money you can expect to recover if you are injured in a motor vehicle accident. Insurance companies may base their decisions on what to pay you based on these principles without explaining their reasoning. The experienced attorneys at The Gasper Law Group can help you navigate the process and make the best arguments for your unique situation to get you the compensation you deserve.