Legal Principles & Case Law in Colorado: Duty of Care, Negligence & Comparative Negligence, Schemes and Mind Maps of Law

Download Legal Principles & Case Law in Colorado: Duty of Care, Negligence & Comparative Negligence and more Schemes and Mind Maps Law in PDF only on Docsity! CHAPTER 9 NEGLIGENCE — GENERAL CONCEPTS Introductory Note A. NEGLIGENCE AND DUTY OF CARE 9:1 Elements of Liability — No Negligence of the Plaintiff 9:2 Negligent Infliction of Emotional Distress — Elements of Liability 9:3 Negligent Misrepresentation Causing Physical Harm — Elements of Liability 9:4 Negligent Misrepresentation Causing Financial Loss in a Business Transaction — Elements of Liability 9:5 Negligent Misrepresentation Causing Financial Loss in a Business Transaction — Unreasonable Reliance — Defined 9:6 Negligence — Defined (Including Assumption of the Risk and Comparative Negligence Cases) 9:7 Negligence — Defined — Inherently Dangerous Activities 9:7A Ultrahazardous Activities Resulting in Strict Liability 9:8 Reasonable Care — Defined 9:9 Children — Standard of Care — Negligence (Including Comparative Negligence Cases) 9:10 Volunteer — Duty of Care 9:11 Sudden Emergency 9:12 Happening of Accident Not Presumptive Negligence 9:13 Looking But Failing to See as Negligence 9:14 Negligence Per Se — Violation of Statute or Ordinance 9:15 Conduct in Compliance with Statute or Ordinance and Justifiable Violation of Statute 9:16 Unknowing Violation of Statute or Ordinance 9:17 Res Ipsa Loquitur — Permissible Inference Arising from Rebuttable Presumption of Negligence B. CAUSATION Special Note 9:18 Cause When Only One Cause Is Alleged — Defined 9:19 Concurrent Causes (Excluding Designated Nonparty Fault Cases) 9:20 Cause — Concurrent Causes — Intervening Causes 9:21 Cause — Foreseeability Limitation 2 C. COMPARATIVE NEGLIGENCE AND COMPARATIVE FAULT Special Note 9:22 Elements of Liability — Comparative Negligence 9:23 Affirmative Defense — Comparative Negligence of the Plaintiff 9:24 Affirmative Defense — Negligence or Fault of Designated Nonparty 9:25 Negligence of Parents Not Imputable to Children 9:26 Comparative Negligence of Plaintiff — Single Defendant — No Designated Nonparty Involved 9:26A Special Verdict Questions — Mechanics for Submitting — Comparative Negligence of the Plaintiff — Single Defendant — No Designated Nonparty 9:26B Special Verdict Forms — Comparative Negligence of the Plaintiff — No Counterclaim — Single Defendant — No Designated Nonparty — Forms A and B 9:26C Special Verdict Questions — Mechanics for Submitting — Comparative Negligence of the Plaintiff — No Counterclaim — Single Defendant — No Designated Nonparty (Alternative to Instruction 9:26A) 9:26D Special Verdict Forms — Comparative Negligence of the Plaintiff — No Counterclaim — Single Defendant — No Designated Nonparty — Forms A and B (Alternative to Instruction 9:26B) 9:27 Comparative Negligence of the Plaintiff — Multiple Defendants — No Designated Nonparty Involved 9:27A Special Verdict Questions — Mechanics for Submitting — Comparative Negligence of the Plaintiff — Multiple Defendants — No Designated Nonparty 9:27B Special Verdict Forms — Comparative Negligence of the Plaintiff — Multiple Defendants — No Designated Nonparty — Forms A and B 9:27C Special Verdict Questions — Mechanics for Submitting — Comparative Negligence of the Plaintiff — Multiple Defendants — No Designated Nonparty (Alternative to Instruction 9:27A) 9:27D Special Verdict Forms — Comparative Negligence of the Plaintiff — Multiple Defendants — No Designated Nonparty — Forms A and B (Alternative to Instruction 9:27B) 9:28 Comparative Negligence of Plaintiff — Single Defendant or Multiple Defendants — Designated Nonparty or Nonparties Involved 9:28A Special Verdict Questions — Mechanics for Submitting — Comparative Negligence of the Plaintiff — Single Defendant or Multiple Defendants — Designated Nonparty or Nonparties Involved 9:28B Special Verdict Forms — Comparative Negligence of the Plaintiff — Single Defendant or Multiple Defendants — Designated Nonparty or Nonparties Involved — Forms A and B 5 there may be rare cases where “the evidence presents a jury question on whether the injured party was a person within the foreseeable zone of danger created by defendant’s negligence and thus was owed a duty by defendant.” Chutich v. Samuelson, 33 Colo. App. 195, 201, 518 P.2d 1363, 1367 (1973), aff’d in part, rev’d in part on other grounds, 187 Colo. 155, 529 P.2d 631 (1974). Nevertheless, if the court concludes that injury to a person in plaintiff’s situation was foreseeable as a matter of law, it is reversible error to submit the issue of foreseeability to the jury. Id.; see also Walcott v. Total Petroleum, Inc., 964 P.2d 609 (Colo. App. 1998) (risk that purchaser of gasoline would intentionally throw it on victim and set victim on fire was not reasonably foreseeable by operator of service station); Scharrel v. Wal-Mart Stores, Inc., 949 P.2d 89 (Colo. App. 1997); Cooley v. Paraho Dev. Corp., 851 P.2d 207 (Colo. App. 1992), aff’d on other grounds sub nom. Gen. Elec. Co. v. Niemet, 866 P.2d 1361 (Colo. 1994); Sewell v. Pub. Serv. Co. of Colo., 832 P.2d 994 (Colo. App. 1991). In those cases where foreseeability is a factual question for the jury to determine, Instruction 9:21 should be used. See generally P.W., 2016 CO 6, ¶ 24 n.7 (negligence cases address foreseeability twice, first as part of a duty inquiry, a legal issue, and second as the “touchstone of proximate cause,” a fact issue). Whether a party has assumed a duty not otherwise imposed by law is a mixed question of law and fact. Pressey v. Children’s Hosp. Colo. 2017 COA 28, ¶ 39. 5. For additional cases discussing the existence of a legal duty, see the Source and Authority to Instruction 9:1 under the subtopic “Existence and Scope of a Legal Duty.” The Economic Loss Rule 6. Generally, under Colorado law, in the absence of physical harm to a person or property, breach of a contractual duty does not give rise to a claim for negligence unless the facts supporting the negligence claim are different from the facts supporting the breach of contract claim. See, e.g., Grynberg v. Agri Tech, Inc., 10 P.3d 1267 (Colo. 2000) (distinguishing between tort and contract claims); Town of Alma v. AZCO Constr., Inc., 10 P.3d 1256 (Colo. 2000) (under economic loss rule, no tort action for negligence where only damages are for economic loss); Miller v. Bank of N.Y. Mellon, 2016 COA 95, ¶¶ 17-36, 379 P.3d 342 (borrower’s tort claims against lender were barred by the economic loss rule, and neither (1) a consent judgment to which borrower was not a party nor (2) the lender-borrower relationship gave rise to an independent duty sufficient to avoid application of the rule); Engeman Enters., LLC v. Tolin Mech. Sys. Co., 2013 COA 34, ¶ 9, 329 P.3d 364 (economic loss rule bars tort claims where there is no duty independent of contract); Stan Clauson Assocs., Inc. v. Coleman Bros. Constr., LLC, 2013 COA 7, ¶ 14, 297 P.3d 1042 (same); Casey v. Colo. Higher Educ. Ins. Benefits All. Tr., 2012 COA 134, ¶ 22, 310 P.3d 196 (economic loss rule bars tort claims only as between contracting parties); Former TCHR, LLC v. First Hand Mgmt. LLC, 2012 COA 129, ¶ 33, 317 P.3d 1226 (fraud and misrepresentation claims were dependent on contract duties and were, thus, barred by economic loss rule); Steward Software Co. v. Kopcho, 275 P.3d 702 (Colo. App. 2010) (economic loss rule applied equally to torts based on an underlying contract whether written or oral), rev’d on other grounds, 266 P.3d 1085 (Colo. 2011); Makoto USA, Inc. v. Russell, 250 P.3d 625 (Colo. App. 2009) (theft and fraud claims were dependent on contract duties and were barred by economic loss rule); U.S. Fire Ins. Co. v. Sonitrol Mgmt. Corp., 192 P.3d 543 (Colo. App. 2008) (contract established parties’ duties and economic loss rule precluded tort claim); Cissell Mfg. Co. v. Park, 36 P.3d 85 (Colo. App. 2001) (same); see also BRW, Inc. v. Dufficy & Sons, Inc., 99 P.3d 66 (Colo. 2004) (economic loss rule barred negligence claims by subcontractor against project engineer for negligent design and inspection 6 of public works project); A Good Time Rental, LLC v. First Am. Title Agency, Inc., 259 P.3d 534 (Colo. App. 2011) (economic loss rule barred claim that closing agent failed to exercise reasonable care in performing contract and claim that closing agent negligently misrepresented that it was performing obligation imposed by closing instructions); Parr v. Triple L & J Corp., 107 P.3d 1104 (Colo. App. 2004) (economic loss rule generally bars only economic damages); City of Westminster v. Centric-Jones Constructors, 100 P.3d 472 (Colo. App. 2003); Terrones v. Tapia, 967 P.2d 216 (Colo. App. 1998) (no cause of action in tort for negligent breach of contractual duty); Chellsen v. Pena, 857 P.2d 472 (Colo. App. 1992) (no cause of action in tort for negligent breach of contractual duty resulting in purely economic damages); Scott Co. of Cal. v. MK-Ferguson Co., 832 P.2d 1000 (Colo. App. 1991) (same), overruled on other grounds by Lewis v. Lewis, 189 P.3d 1134 (Colo. 2008); Centennial Square, Ltd. v. Resolution Tr. Co., 815 P.2d 1002 (Colo. App. 1991); Jardel Enters., Inc. v. Triconsultants, Inc., 770 P.2d 1301 (Colo. App. 1988) (applying economic loss rule which precludes recovery for negligence when duty breached is contractual and only economic losses are incurred). But see Tanktech, Inc. v. First Interstate Bank, 851 P.2d 174 (Colo. App. 1992) (if contract claim does not preclude negligence claim, relevant provisions of contract are admissible to establish appropriate standard of care to apply to alleged tortfeasor’s conduct), rev’d on other grounds, 864 P.2d 116 (Colo. 1993). The economic loss rule may apply to an entity that did not exist at the time a duty was contractually created under the interrelated contracts doctrine if that entity is a party to a contract that is sufficiently interrelated with the duty-creating contract or is a third- party beneficiary of the interrelated contract. S K Peightal Engineers, LTD v. Mid Valley Real Estate Sols. V, LLC, 2015 CO 7, ¶ 16, 342 P.3d 868. 7. However, the economic loss rule does not apply where the defendant owes the plaintiff a duty of care independent of any contractual duty. Van Rees v. Unleaded Software, Inc., 2016 CO 51, ¶ 15, 373 P.3d 603 (tort claims based on misrepresentations made before the formation of contracts, which allegedly induced plaintiff to enter into the contracts and therefore violated an independent duty in tort to refrain from such conduct, not barred by the economic loss rule); A.C. Excavating v. Yacht Club II Homeowners Ass’n, 114 P.3d 862 (Colo. 2005) (plaintiff homeowners association, third-party beneficiary of contract between general contractor and its subcontractors, not barred from enforcing negligence claims against defendant subcontractors, contracting parties, where law recognized duty of care that was independent of defendants’ contractual duties); Foster v. Bd. of Governors, 2014 COA 18, ¶ 28, 342 P.3d 497 (economic loss rule does not bar recovery where bailee’s duty to safely store stallion semen was separate from contractual duties); Rhino Fund, LLLP v. Hutchins, 215 P.3d 1186 (Colo. App. 2008) (economic loss rule did not bar claims based on independent tort duty to honor terms of escrow account and not to convert funds); URS Grp., Inc. v. Tetra Tech FW, Inc., 181 P.3d 380 (Colo. App. 2008) (claim based on misrepresentations made before contract executed not barred by economic loss rule); Andrews v. Picard, 199 P.3d 6 (Colo. App. 2007) (economic loss rule not applicable where there is duty of care independent of any contractual duty); Park Rise Homeowners Ass’n v. Res. Constr. Co., 155 P.3d 427 (Colo. App. 2006) (economic loss rule not a bar to homeowners’ negligence claim against builder because builder owed homeowner independent duty to use due care in constructing home). Thus, a tort claim for negligence is “not limited by privity of contract”; instead, foreseeability determines its scope. Forest City Stapleton Inc. v. Rogers, 2017 CO 23, ¶ 13, 393 P.3d 487. 7 8. A claim for negligent misrepresentation is barred by the “economic loss rule” where the duty allegedly breached is contained in or arises out of the contract. BRW, 99 P.3d at 75 (economic loss rule barred negligent misrepresentation claim by subcontractor against project engineer for misrepresentations allegedly made during the performance of the engineer’s contract); Top Rail Ranch Estates, LLC v. Walker, 2014 COA 9, ¶ 40, 327 P.3d 321 (tort claim for negligent misrepresentation barred where no independent duties found to exist); A Good Time Rental, 259 P.3d at 541 (economic loss rule barred claims that closing agent negligently misrepresented that it was performing a duty imposed by the closing instructions). But when the alleged misrepresentation occurs before the parties entered into their contract, the economic loss rule does not bar the negligent misrepresentation claim. Van Rees, 2016 CO 51, ¶¶ 14-19 (economic loss rule does not bar negligent misrepresentation claim where an independent duty of care prohibits contracting party from making negligent misrepresentations in inducing contractual arrangement); URS Grp., 181 P.3d at 391. Damages 9. No damage instructions have been prepared specifically for negligence cases because the instructions in Chapter 5, General Instructions Relating to Damages, and Chapter 6, Damages for Injuries to Persons or Property, are applicable to both negligence claims and to claims involving other kinds of tortious conduct. However, whenever punitive damages are claimed in a negligence case, Instruction 9:30 (defining willful and wanton conduct or willful and reckless disregard) should be used with Instruction 5:4 (exemplary or punitive damages). 10. For damage instructions and special verdict forms in actions against health care professionals or health care institutions, the instructions in subpart D of Part I of Chapter 15 should be used rather than the instructions in Part C of this chapter. 11. In actions for wrongful death, Instructions 10:3 and 10:4 should be used to instruct the jury on the applicable measure of damages. 10 Description of Legal Duty 13. As to the degree of specificity required in instructing the jury on the existence of a legal duty in a negligence action, see Woolsey v. Holiday Health Clubs & Fitness Ctrs., Inc., 820 P.2d 1201 (Colo. App. 1991) (plaintiff not entitled to instruction that health club had legal duty to supervise whirlpool area and to warn about risks and hazards associated with use of whirlpool where more generalized instructions indicating that health club had legal duty to act reasonably towards its members was given). Source and Authority 1. This instruction is supported by Bayly, Martin & Fay, Inc. v. Pete’s Satire, Inc., 739 P.2d 239 (Colo. 1987); Independent Lumber Co. v. Leatherwood, 102 Colo. 460, 79 P.2d 1052 (1938); Thompson v. Riveland, 714 P.2d 1338 (Colo. App. 1986) (proof of compensable harm or damages is a necessary element of liability); and Camacho v. Mennonite Board of Missions, 703 P.2d 598 (Colo. App. 1985). Also, in general support of this instruction, see the instructions approved in Folck v. Haser, 164 Colo. 11, 432 P.2d 245 (1967). The supreme court cited with approval an instruction based on this pattern instruction in Rains v. Barber, 2018 CO 61, ¶ 18, 420 P.3d 969. Existence and Scope of a Legal Duty 2. This element is discussed in the “Liability” section of the Introductory Note to this chapter. Many additional Colorado Supreme Court cases discuss the existence and scope of a legal duty. See N.M. v. Trujillo, 2017 CO 79, ¶ 24, 397 P.3d 370 (dog owner did not have a special relationship with pedestrians walking by his house and did not owe a duty to prevent dogs from frightening pedestrians); P.W. v. Children’s Hosp. Colo., 2016 CO 6, ¶ 25, 364 P.3d 891 (when a hospital admits a person into its custody who it knows is “actively suicidal” and is admitted for the purpose of preventing self-harm, the hospital assumes a duty to use reasonable care in preventing the patient from engaging in self-harm); Westin Operator, LLC v. Groh, 2015 CO 25, ¶ 51, 347 P.3d 606 (hotels have a duty to evict patrons in a reasonable manner); S K Peightal Eng’rs, LTD v. Mid Valley Real Estate Sols. V, LLC, 2015 CO 7, ¶¶ 24-26, 342 P.3d 868 (construction professionals do not have independent tort duty to commercial property owner who acquired defective house through deed in lieu of foreclosure when construction contract documents define the relevant duties of the construction professionals and contractors); Ryder v. Mitchell, 54 P.3d 885 (Colo. 2002) (child therapist owed no duty to mother of children with respect to letter sent by therapist to the children’s father and new therapist opining that mother was alienating children from father); HealthONE v. Rodriguez ex rel. Rodriguez, 50 P.3d 879 (Colo. 2002) (anesthesiologist owed duty of care to plaintiff with respect to drug inadvertently left on cart and subsequently given to plaintiff by another physician, even though there was no physician/patient relationship between anesthesiologist and plaintiff); Martinez v. Lewis, 969 P.2d 213 (Colo. 1998) (physician retained by insurer to conduct medical examination of insured owed no duty of care to insured to use reasonable care in preparing and making report to insurer regarding insured’s medical condition); Davenport v. Cmty. Corr. of the Pikes Peak Region, Inc., 962 P.2d 963 (Colo. 1998) (no duty of administrator of private halfway house to protect plaintiff from dangerous behavior of halfway-house resident); Trailside Townhome Ass’n v. Acierno, 880 P.2d 1197 (Colo. 1994) (duty of townhome association to townhome owners who make use of common areas in townhome complex); Bath Excavating & Constr. Co. v. Wills, 847 P.2d 1141 (Colo. 1993) (duty of excavation company to city employee injured 11 while attempting to plug leak in water line severed by excavation company); Greenberg v. Perkins, 845 P.2d 530 (Colo. 1993) (duty of physician retained by defendant in personal injury action to use due care in subjecting plaintiff to medical tests); Mile Hi Concrete, Inc. v. Matz, 842 P.2d 198 (Colo. 1992) (duty of concrete manufacturer to warn user of the dangers of continued exposure to wet concrete); Connes v. Molalla Transp. Sys., Inc., 831 P.2d 1316 (Colo. 1992) (no duty of employer of long-haul truck driver with criminal record to woman sexually assaulted by driver); Peterson v. Halsted, 829 P.2d 373 (Colo. 1992) (no duty of father who co-signed loan on automobile purchased by emancipated daughter to victims of collision that resulted from daughter’s driving automobile while intoxicated nearly three years after automobile was purchased); Casebolt v. Cowan, 829 P.2d 352 (Colo. 1992) (duty of employer under negligent entrustment theory to employee who was killed as a result of driving an automobile borrowed from employer when employee was intoxicated); Observatory Corp. v. Daly, 780 P.2d 462 (Colo. 1989) (duty of tavern owner to prevent injury to patrons); Perreira v. State, 768 P.2d 1198 (Colo. 1989) (duty of staff psychiatrist at mental health facility to victim assaulted by patient released by psychiatrist); Bittle v. Brunetti, 750 P.2d 49 (Colo. 1988) (no duty of commercial property owners to pedestrian injured on abutting public sidewalk); Univ. of Denver v. Whitlock, 744 P.2d 54 (Colo. 1987) (no duty on part of university to prevent student from being injured in trampoline accident at fraternity house); Taco Bell, Inc. v. Lannon, 744 P.2d 43 (Colo. 1987) (duty of fast food restaurant to protect patrons from criminal acts of unknown third parties). 3. The Colorado Court of Appeals has also discussed the scope and existence of a legal duty. See Lopez v. Trujillo, 2016 COA 53, ¶¶ 15-31, 399 P.3d 750 (homeowner who kept dog in a fenced yard did not owe duty to protect pedestrians on sidewalk adjacent from the yard from being frightened by homeowner’s dog, analyzing cases from multiple jurisdictions), aff’d sub nom. N.M. v. Trujillo, 2017 CO 79, 397 P.3d 370; Laughman v. Girtakovskis, 2015 COA 143, ¶ 14, 374 P.3d 504 (co-participants in a martial arts sparring activity, an inherently dangerous sport, do not owe each other a duty of ordinary care that would support a negligence claim where the conduct at issue was within the realm of conduct anticipated in the sport); Beasley v. Best Car Buys, LTD, 2015 COA 145, ¶ 14, 363 P.3d 777 (car vendor has no duty to inquire into a buyer’s driving history or to investigate the status of his license, particularly when that vendor has no reason to believe that the purchaser has dangerous driving habits); Bedee v. Am. Med. Response of Colo., 2015 COA 128, ¶ 30, 361 P.3d 1083 (ambulance driver owes passenger ordinary duty of care, not heightened duty for activity involving increased risk of injury, where ambulance was traveling at normal speeds in a nonemergency situation and the passenger was wearing a seat belt); Boulders at Escalante LLC v. Otten Johnson Robinson Neff & Ragonetti PC, 2015 COA 85, ¶ 58, 412 P.3d 751 (law firm owed developer client a duty to render competent advice on insurance coverage issue); In re Estate of Gattis, 2013 COA 145, ¶ 17, 318 P.3d 549 (home sellers have independent duty to disclose latent but known defects to home buyers); Collard v. Vista Paving Corp., 2012 COA 208, ¶ 61, 292 P.3d 1232 (When a road contractor finishes contracted work and then leaves the site in a dangerous condition as a result of that work, the contractor has an independent duty for a reasonable period of time either to eliminate the dangerous condition or warn of its existence; however, no such duty exists if the contractor has a good-faith reasonable belief that, after the contractor completed its work, another party would properly take the necessary measures to eliminate the danger or provide adequate warnings to foreseeable users.); Draper v. DeFrenchi-Gordineer, 282 P.3d 489 (Colo. 12 App. 2011) (negligent entrustment); J.C. v. Dungarvin Colo., LLC, 252 P.3d 41 (Colo. App. 2010) (providers of services to the developmentally disabled owe no affirmative duty to third parties to warn of dangerous tendencies unless the individual communicated a serious and credible threat against a specific person or a federal or state law or regulation imposes a duty of care under sections 13-21-117.5(4), (6), C.R.S.); Barfield v. Hall Realty, Inc., 232 P.3d 286 (Colo. App. 2010) (“transaction broker” has no duty to investigate property and cannot be liable for negligent misrepresentation without actual knowledge); Apodaca v. Allstate Ins. Co., 232 P.3d 253 (Colo. App. 2009) (insurance agent has no duty to insured beyond acting reasonably to procure the insurance requested by the insured or to notify the insured of the inability or failure to do so), aff’d on other grounds, 255 P.3d 1099 (Colo. 2011); Hamon Contractors, Inc. v. Carter & Burgess, Inc., 229 P.3d 282 (Colo. App. 2009) (because the alleged tortious conduct was nonfeasance and no special relationship existed, contractor had no duty to inform project administrator of design flaws during bidding process); W. Innovations, Inc., v. Sonitrol Corp., 187 P.3d 1155 (Colo. App. 2008) (no duty of security company to notify customer whose security alarm was not going off that security system of its neighbor, also a customer, was sounding an alarm); Montoya v. Connolly’s Towing, Inc., 216 P.3d 98 (Colo. App. 2008) (duty of tow yard to disclose to non-employee towing a car it stored that its premises safety rules were not uniformly enforced); Wark v. McClellan, 68 P.3d 574 (Colo. App. 2003) (no duty of parents, who were passengers with their children in a car driven by another, to protect children by protesting driver’s actions or intervening in driver’s control of vehicle); E. Meadows Co. v. Greeley Irrigation Co., 66 P.3d 214 (Colo. App. 2003) (discussing duty imposed by section 7- 42-108, C.R.S., on ditch owners to maintain ditches to prevent water from escaping and injuring property of others); Command Commc’ns, Inc. v. Fritz Cos., 36 P.3d 182 (Colo. App. 2001) (custom brokers had no duty continuously to research rulings on products similar to those imported by their customers); Cooper v. United States Ski Ass’n, 32 P.3d 502 (Colo. App. 2000) (ski company owed no duty to skier to supervise skiing instruction of ski club that used ski company facilities but was not associated with the ski company in any way), rev’d on other grounds, 48 P.3d 1229 (Colo. 2002); Lewis v. Emil Clayton Plumbing Co., 25 P.3d 1254 (Colo. App. 2000) (plumbing contractor, hired to replace water heater, had no duty to inspect or warn occupants of home of danger posed by defective gas stove); Weil v. First Nat’l Bank of Castle Rock, 983 P.2d 812 (Colo. App. 1999) (bank had no duty to inquire into customer’s authority to open checking account under unregistered trade name); Solano v. Goff, 985 P.2d 53 (Colo. App. 1999) (county sheriff had no duty to protect murder victim from inmate who escaped from county jail); Campbell v. Burt Toyota-Diahatsu, Inc., 983 P.2d 95 (Colo. App. 1998) (no duty of automobile repair shop to warn motorist of danger resulting from modification of seatbelt by motorist’s wife); Snow v. Birt, 968 P.2d 177 (Colo. App. 1998) (duty of grandparents to protect grandchild from being bitten by father’s dog); Molosz v. Hohertz, 957 P.2d 1049 (Colo. App. 1998) (no duty of landlords to protect neighbors from tenant’s harmful conduct even though landlords knew of tenant’s criminal record and violent propensities); Bailey v. Huggins Diagnostic & Rehab. Ctr., Inc., 952 P.2d 768 (Colo. App. 1997) (dentist, who allegedly made false representations in book and on television program regarding effect of “dental amalgams” on health of dental patients, had no duty to plaintiff as member of general public); Keith v. Valdez, 934 P.2d 897 (Colo. App. 1997) (duty of employer of intoxicated motorist, who was driving employer’s van without employer’s permission, to driver of another vehicle involved in a collision with employer’s van); Frisone v. Deane Auto. Ctr., Inc., 942 15 of driving an automobile while intoxicated could bring a wrongful death action against her husband’s employer who had loaned the automobile to the decedent. The court further ruled that evidence that the decedent’s employer knew or had reason to know that the decedent was likely to drive the automobile while intoxicated precluded the entry of summary judgment in favor the employer. Id. at 362. In so ruling, the court overruled Hilberg, 761 P.2d at 238, and Hasegawa v. Day, 684 P.2d 936 (Colo. App. 1983), to the extent that these cases held that an essential element of negligent entrustment was that the entrustor had the ability to control the entrustee or the entrustee’s use of the chattel supplied by the entrustor at the time the negligence of the entrustee resulted in injury. The court also held that an entrustee can recover for physical harm to himself or herself that results from a negligent entrustment, and that comparative negligence provides the appropriate framework for examining any negligence on the part of the entrustee, including the negligence of a borrower of an automobile who drives the automobile while intoxicated. Casebolt, 829 P.2d at 360-61. Other Colorado cases discuss the doctrine of negligent entrustment. See Ferrer, 2017 CO 14M, ¶¶ 19, 58 (holding that where an employer acknowledges vicarious liability for its employee’s negligence, a plaintiff’s direct negligence claims against the employer — such as negligent entrustment — are barred); Peterson, 829 P.2d at 377; Beasley, 2015 COA 145, ¶¶ 8-28; Draper, 282 P.3d at 498-99; Kahland, 155 P.3d at 493; Connes v. Molalla Transp. Sys., Inc., 817 P.2d 567 (Colo. App. 1991), aff’d on other grounds, 831 P.2d 1316 (Colo. 1992); Lahey v. Benjou, 759 P.2d 855 (Colo. App. 1988); Hilberg, 761 P.2d at 238-39; Butcher v. Cordova, 728 P.2d 388 (Colo. App. 1986); Hasegawa, 684 P.2d 936; see also Mid-Century Ins. Co. v. Heritage Drug, Ltd., 3 P.3d 461 (Colo. App. 1999) (claim for negligent entrustment not based on vicarious liability); Liebelt v. Bob Penkhus Volvo-Mazda, Inc., 961 P.2d 1147 (Colo. App. 1998) (automobile dealer did not negligently entrust vehicle to uninsured motorist); Payberg v. Harris, 931 P.2d 544 (Colo. App. 1996) (bailee cannot be held liable under negligent entrustment theory for returning bailed property to bailor). Legislative Duty 9. For a discussion as to when a negligence claim against a governmental entity can be predicated on a duty arising from a legislative enactment, see State v. Moldovan, 842 P.2d 220 (Colo. 1992); Board of County Commissioners v. Moreland, 764 P.2d 812 (Colo. 1988); Jefferson County School District R-1 v. Justus, 725 P.2d 767 (Colo. 1986); and Easton v. 1738 Partnership, 854 P.2d 1362 (Colo. App. 1993). See also § 24-10-106.5, C.R.S. (providing that the adoption of a policy or regulation to protect any person’s health or safety shall not give rise to a duty of care on the part of a public entity or public employee where none otherwise existed); Zapp v. Kukuris, 847 P.2d 150 (Colo. App. 1992) (duty of police officers to victim struck by stolen car during high speed police chase). Expert Testimony 10. Generally, where the defendant is held to a standard of care beyond the common knowledge and experience of ordinary persons, expert testimony is required to prove breach of a legal duty. Gerrity Oil & Gas Corp. v. Magness, 946 P.2d 913 (Colo. 1997); see also Dunn v. Am. Family Ins., 251 P.3d 1232 (Colo. App. 2010); Hice v. Lott, 223 P.3d 139 (Colo. App. 2009); Calvaresi v. Nat’l Dev. Co., 772 P.2d 640 (Colo. App. 1988). 16 Construction and Improvements to Real Property 11. In Hildebrand v. New Vista Homes II, LLC, 252 P.3d 1159 (Colo. App. 2010), the court held that a builder has a duty to use reasonable care and skill in constructing a home, and the failure to do so constitutes negligence. See also Cosmopolitan Homes, Inc. v. Weller, 663 P.2d 1041 (Colo. 1983) (a subsequent purchaser of a home foreseeably suffers personal injury as a result of a builder’s negligence and thus may state a claim for negligence against the builder). However, in S K Peightal Engineers, LTD, 2015 CO 7, ¶¶ 18-25, the court held that a commercial entity that acquires a home through a deed in lieu of foreclosure is not a “subsequent” purchaser or homeowner to whom an independent duty of care is owed under Cosmopolitan Homes, 663 P.2d at 1044-45. 12. For special pleading and other requirements and limitations in actions or arbitration proceedings against construction professionals “claiming damages, indemnity, or contribution in connection with alleged construction defects, resulting in property loss or damage,” see sections 13-20-801 through 13-20-808, C.R.S. (Construction Defect Action Reform Act or “CDARA”). With respect to claims based on negligence, see section 13-20-804, relating to the effect of “substantial compliance with an applicable building code or industry standard.” CDARA was originally enacted in 2001, but was amended in 2003 and 2007, with the amendments being applicable to actions filed on or after their effective dates. In May 2010, a new section addressing insurance coverage for construction defect claims was added. See § 13-20-808. 13. “An improvement to real property is commonly understood as ‘[a]n addition to real property, whether permanent or not; esp[ecially] one that increases its value or utility or that enhances its appearance.’” Barron v. Kerr-McGee Rocky Mtn. Corp., 181 P.3d 348, 350 (Colo. App. 2007) (quoting BLACK’S LAW DICTIONARY 773 (8th ed. 2004), and discussing workers’ compensation immunity for one contracting out work on “improvements”). Under particular facts involving a general contractor’s claims against two subcontractors who had worked on the final building in a multi-phase project, an improvement may be a discrete component of an entire project, such as one of multiple residential buildings constructed in a project. Shaw Constr., LLC v. United Builder Servs., Inc., 2012 COA 24, ¶ 38, 296 P.3d 145. The Committee takes no position regarding application of this case to a developer, builder, or other person responsible for the construction or development of a multi-family development as a whole. 14. A construction professional “can be liable for negligence if it fails to follow the recommendations of its independent contractors.” Hildebrand, 252 P.3d at 1165. 15. A construction professional’s employee may be personally liable for the construction professional’s negligent conduct if that employee “approved of, directed, actively participated in, or cooperated in” the conduct. Id. at 1166; accord Hoang v. Arbess, 80 P.3d 863 (Colo. App. 2003). 16. Negligence claims arising out of construction defects are not limited by contractual privity. Forest City Stapleton Inc. v. Rogers, 2017 CO 23, ¶ 13, 393 P.3d 487. Rather, foreseeability of harm defines the scope of tort liability. Id. 17 Imputed Negligence 17. The negligence or contributory negligence of a parent, as a parent, is not imputable to his or her children. Pub. Serv. Co. of Colo. v. Petty, 75 Colo. 454, 226 P. 297 (1924) (citing Denver City Tramway Co. v. Brown, 57 Colo. 484, 143 P. 364 (1914)); see also Paris ex rel. Paris v. Dance, 194 P.3d 404 (Colo. App. 2008); Fletcher v. Porter, 754 P.2d 788 (Colo. App. 1988). Similarly, in the absence of some other basis, such as master and servant, the contributory negligence of one parent or a spouse will not be imputed to the other parent so as to bar or reduce whatever claim the other parent may have for injuries to the child. See Phillips v. Denver City Tramway Co., 53 Colo. 458, 128 P. 460 (1912). Exculpatory Releases 18. Exculpatory releases executed by parents on behalf of minor children have been enforced in Colorado. Compare Hamill v. Cheley Colo. Camps, Inc., 262 P.3d 945 (Colo. App. 2011) (enforcing release of minor’s claims for negligence signed by mother because release adequately disclosed extent of potential injuries, was clear and unambiguous, and was fairly entered into by mother), with Wycoff v. Grace Cmty. Church of Assemblies of God, 251 P.3d 1260, 1264 (Colo. App. 2010) (declining to enforce release because decision was not voluntary and informed but noting that “parents have a fundamental right to make decisions on behalf of their children, including deciding whether the children should participate in risky activities” (citing § 13-22-107(1)(a)(I)-(V), C.R.S.)). Statutory Defenses 19. For the circumstances in which a person may not be entitled to recover damages sustained while engaged in the commission of, or during immediate flight from, an act constituting a felony, see section 13-80-119, C.R.S. (formerly section 13-80-129, C.R.S.); and Molnar v. Law, 776 P.2d 1156 (Colo. App. 1989). Other statutes create defenses to negligence claims or limit potential liability for negligence or the amount of recoverable damages. See, e.g., § 11-58-107, C.R.S. (issuer or public employee of issuer for information or omission in annual report concerning a nonrated public security); § 12-47-801, C.R.S. (sale, service, or provision of alcoholic beverages to an intoxicated person) (the constitutionality of the predecessor to former 12-47-801 was upheld in Charlton v. Kimata, 815 P.2d 946 (Colo. 1991), and the statute was interpreted in Build It & They Will Drink, Inc. v. Strauch, 253 P.3d 302 (Colo. 2011), and Rojas v. Engineered Plastic Designs, Inc., 68 P.3d 591 (Colo. App. 2003)); § 13-21-108, C.R.S. (immunizing various providers of emergency assistance); § 13-21-108.1, C.R.S. (persons involved in providing emergency assistance using automated external defibrillators); § 13-21- 108.2, C.R.S. (providers rendering emergency assistance to person injured while engaged in competitive sports); § 13-21-108.3, C.R.S. (architects, professional engineers, professional land surveyors, and building code officials rendering assistance during declared disaster emergency); § 13-21-108.5, C.R.S. (persons rendering assistance relating to discharges of hazardous materials); § 13-21-108.7, C.R.S. (persons rendering emergency assistance through the administration of an opiate antagonist); § 13-21-113(1), C.R.S. (suppliers donating food to nonprofit organizations for use of poor persons); § 13-21-113.3, C.R.S. (fire departments and other persons or entities donating equipment); § 13-21-115.5, C.R.S. (volunteers, including physicians, acting for a nonprofit organization or corporation or a hospital) (“Volunteer Services Act” was interpreted in Rieger v. Wat Buddhawararam of Denver, Inc., 2013 COA 156, ¶¶ 14-37, 338 P.3d 404); § 13-21-115.6, C.R.S. (liability of school crossing guards limited to willful and wanton conduct when acting within official functions and duties); § 13-21-116(2)(b), C.R.S. 20 9:2 NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS — ELEMENTS OF LIABILITY For the plaintiff, (name), to recover from the defendant, (name), on (his) (her) claim of negligent infliction of emotional distress, you must find all the following have been proved by a preponderance of the evidence: 1. The defendant was negligent; 2. The defendant’s negligence created an unreasonable risk of physical harm to the plaintiff; 3. The defendant’s negligence caused the plaintiff to be put in fear for (his) (her) own safety and such fear was shown by physical consequences or long continued emotional disturbance, rather than only momentary fright, shock, or other similar and immediate emotional distress; and 4. The plaintiff’s fear caused (him) (her) (injuries) (damages) (losses). If you find that any one or more of these (number) statements has not been proved, then your verdict must be for the defendant. On the other hand, if you find that all of these (number) statements have been proved, (then your verdict must be for the plaintiff) (then you must consider the defendant’s affirmative defense(s) of [insert any affirmative defense that would be a complete defense to plaintiff’s claim]). If you find that (this affirmative defense has) (any one or more of these affirmative defenses have) been proved by a preponderance of the evidence, then your verdict must be for the defendant. However, if you find that (this affirmative defense has not) (none of these affirmative defenses have) been proved, then your verdict must be for the plaintiff. Notes on Use 1. This instruction should be used when the plaintiff is claiming damages for fear of his or her own safety and for the consequential damages (physical and mental) caused by such fright, rather than damages resulting from an “impact” caused by the defendant’s negligence. When the plaintiff is claiming damages for intentional infliction of emotional distress by extreme and outrageous conduct, see Chapter 23, and for assault, see Part A of Chapter 20. 2. Omit any numbered paragraphs, the facts of which are not in dispute. 3. Use whichever parenthesized words are most appropriate and omit the last two paragraphs if the defendant has put no affirmative defense in issue or there is insufficient evidence to support any defense. 21 4. Whenever the defense of contributory negligence has been properly raised, the numbered paragraphs of this instruction should be substituted for the numbered paragraphs in Instruction 9:22 and that Instruction should then be used in accord with its Notes on Use. 5. Whenever this instruction is given, the appropriate instruction or instructions relating to causation must also be given, see Instructions 9:18 to 9:21, as well as other appropriate instructions defining the terms used in this instruction, e.g., Instruction 9:6 (defining “negligence”). 6. This instruction should not be used when liability has been admitted, see Instruction 2:4, or when the court has directed a verdict as to liability, see Instruction 2:6. 7. Though mitigation of damages is an affirmative defense, see Instruction 5:2, only rarely, if ever, when established will it be a complete defense. For this reason, mitigation should not be identified as an affirmative defense in the concluding paragraphs of this instruction. Instead, if supported by sufficient evidence, Instruction 5:2 should be given along with the actual damages instruction appropriate to the claim and the evidence in the case. Source and Authority 1. This instruction is supported by Towns v. Anderson, 195 Colo. 517, 579 P.2d 1163 (1978); Wark v. McClellan, 68 P.3d 574 (Colo. App. 2003) (to establish prima facie case of negligent infliction of emotional distress, plaintiff must first show that defendant was negligent); Slovek v. Board of County Commissioners, 697 P.2d 781 (Colo. App. 1984) (though physical impact is not required, to recover damages for negligent infliction of emotional distress, plaintiff must have been subjected to a risk of bodily harm from such negligence), aff’d, 723 P.2d 1309 (Colo. 1986); and Mathews v. Lomas & Nettleton Co., 754 P.2d 791 (Colo. App. 1988) (proof of risk of bodily harm required). See also Webster v. Boone, 992 P.2d 1183 (Colo. App. 1999) (no recovery for emotional distress on negligence claim in the absence of fraud, malice or other willful and wanton conduct or the creation of an unreasonable risk of bodily harm); Colwell v. Mentzer Invs., Inc., 973 P.2d 631 (Colo. App. 1998) (no recovery unless plaintiff subjected to unreasonable risk of bodily harm); Scharrel v. Wal-Mart Stores, Inc., 949 P.2d 89 (Colo. App. 1997); Card v. Blakeslee, 937 P.2d 846 (Colo. App. 1996) (to recover on claim of negligent infliction of emotional distress, plaintiff must be subject to a direct threat of harm or an unreasonable risk of bodily injury); Kimelman v. City of Colo. Springs, 775 P.2d 51 (Colo. App. 1988) (no recovery for emotional distress caused by negligent handling of a dead body when plaintiff not personally subjected to a risk of physical harm). But see Montoya v. Bebensee, 761 P.2d 285 (Colo. App. 1988) (reversing the trial court’s dismissal of a claim for negligent infliction of emotional distress without discussing the requirement that the plaintiff have been subjected to a risk of physical harm). 2. A parent who is not personally subjected to an unreasonable risk of physical harm may not recover for emotional distress caused by witnessing the negligent infliction of physical harm on the parent’s child. Millican v. Wolfe, 701 P.2d 107 (Colo. App. 1985); see also Hale v. Morris, 725 P.2d 26 (Colo. App. 1986) (same, and, in addition, harm that child suffered did not occur in the parent’s presence). 22 3. The firing of an employee because of a disability in violation of the Colorado Anti- Discrimination Act, § 24-34-402, C.R.S., is not sufficient, in and of itself, to support a claim for negligent infliction of emotional distress. Bigby v. Big 3 Supply Co., 937 P.2d 794 (Colo. App. 1996). 4. A claim of negligent infliction of emotional distress describes an independent tort injury suffered by the plaintiff directly; it is not derivative of a third person’s personal injury claim. Draper v. DeFrenchi-Gordineer, 282 P.3d 489 (Colo. App. 2011) (husband suffering emotional distress after witnessing automobile accident in which wife was injured was able to maintain claim of negligent infliction of emotional distress against driver who caused the accident notwithstanding wife’s settlement of her personal injury claim against driver). 25 9:4 NEGLIGENT MISREPRESENTATION CAUSING FINANCIAL LOSS IN A BUSINESS TRANSACTION — ELEMENTS OF LIABILITY For the plaintiff, (name), to recover from the defendant, (name), on (his) (her) claim of negligent misrepresentation, you must find all of the following have been proved by a preponderance of the evidence: 1. The defendant gave false information to the plaintiff; 2. The defendant gave such information to the plaintiff in the course of (the defendant’s [business] [profession] [employment]) (a transaction in which the defendant had a financial interest); 3. The defendant gave the information to the plaintiff for the (guidance) (use) of the plaintiff in a business transaction; 4. The defendant was negligent in obtaining or communicating the information; 5. The defendant gave the information with the intent or knowing that (the plaintiff) (a limited group of persons of which the plaintiff was a member) would (act) (or) (decide not to act) in reliance on the information; 6. The plaintiff relied on the information supplied by the defendant; and 7. This reliance on the information supplied by the defendant caused damage to the plaintiff. If you find that any one or more of these (number) statements has not been proved, then your verdict must be for the defendant. On the other hand, if you find that all of these (number) statements have been proved, (then your verdict must be for the plaintiff) (then you must consider the defendant’s affirmative defense(s) of [insert any affirmative defense that would be a complete defense to plaintiff’s claim]). If you find that (this affirmative defense has) (any one or more of these affirmative defenses have) been proved by a preponderance of the evidence, then your verdict must be for the defendant. However, if you find that (this affirmative defense has not) (none of these affirmative defenses have) been proved, then your verdict must be for the plaintiff. Notes on Use 1. This instruction rather than Instruction 19:1 should be used when the plaintiff’s claim is that, while the defendant may have had an honest belief in the truth of what the defendant represented, the defendant was negligent in arriving at such belief or was negligent in the manner 26 in which the defendant communicated it, thus creating a false impression of the true facts in the mind of the plaintiff. When the negligently given false information results in physical harm to the plaintiff’s person or property, rather than causing a financial loss to the plaintiff in a business transaction, Instruction 9:3 should be used rather than this instruction. In several respects, the tort covered by this instruction is more akin to the tort of “fraud” or intentional deceit (Instruction 19:1) than it is to the tort of negligent misrepresentation resulting in physical harm (Instruction 9:3). See RESTATEMENT (SECOND) OF TORTS § 311 cmts. a–c (1965); RESTATEMENT (SECOND) OF TORTS § 552 cmt. a (1977). 2. Omit any numbered paragraphs, the facts of which are not in dispute. 3. Use whichever parenthesized words are most appropriate and omit the last two paragraphs if the defendant has put no affirmative defense in issue or there is insufficient evidence to support any defense. 4. In cases where the defendant did not give the information directly to the plaintiff, the first three numbered paragraphs of this instruction must be appropriately modified. 5. Whenever the defense of contributory negligence has been properly raised in the form of unreasonable reliance or in any other form, the beginning unnumbered paragraph as well as the numbered paragraphs of this instruction should be substituted for the beginning unnumbered and numbered paragraphs in Instruction 9:22 and that Instruction should then be used in accord with its Notes on Use. For the definition of the claimed negligence of the defendant, Instruction 9:6 should be used. For the definition of the claimed contributory negligence of the plaintiff, Instruction 9:5 should be used if that claimed negligence is in the form of unreasonable reliance. If the claimed contributory negligence is in any other form, Instruction 9:6 should be used to define the negligence of both parties. 6. Though mitigation of damages is an affirmative defense, see Instruction 5:2, only rarely, if ever, when established will it be a complete defense. For this reason, mitigation should not be identified as an affirmative defense in the concluding paragraphs of this instruction. Instead, if supported by sufficient evidence, Instruction 5:2 should be given along with the actual damages instruction appropriate to the claim and the evidence in the case. 7. This instruction, appropriately modified, may also be used in cases in which it is claimed the defendant was under a public duty to give information and did so negligently. RESTATEMENT (SECOND) OF TORTS § 552(3) (1977). 8. This instruction should not be used when liability has been admitted, see Instruction 2:4, or when the court has directed a verdict as to liability, see Instruction 2:6. Source and Authority 1. This instruction is supported by First National Bank in Lamar v. Collins, 44 Colo. App. 228, 616 P.2d 154 (1980) (applying RESTATEMENT (SECOND) OF TORTS § 552 (1977)); Robinson v. Poudre Valley Federal Credit Union, 654 P.2d 861 (Colo. App. 1982); and Fitzgerald v. Edelen, 623 P.2d 418 (Colo. App. 1980). See also Van Winkle v. Transamerica 27 Title Ins. Co., 697 P.2d 784 (Colo. App. 1984) (no liability for negligent failure to disclose in absence of duty to disclose); W. PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS §107, at 745-48 (5th ed. 1984); 2 F. HARPER ET AL., HARPER, JAMES, AND GRAY ON TORTS § 7.6 (3rd ed. 2006). The decisions of the court of appeals in Collins and Fitzgerald were cited by analogy with approval by the supreme court in Bloskas v. Murray, 646 P.2d 907 (Colo. 1982). Later cases also provide support. See Keller v. A.O. Smith Harvestore Prods., Inc., 819 P.2d 69 (Colo. 1991); Hildebrand v. New Vista Homes II, LLC, 252 P.3d 1159 (Colo. App. 2010) (affirming judgment on negligent misrepresentation claim against builder and its principal arising from misrepresentation that basement was suitable as a finished living space without a structural floor); Mullen v. Allstate Ins. Co., 232 P.3d 168 (Colo. App. 2009) (affirming summary judgment on claim for negligent misrepresentation by omission because insurer was not obligated to provide information about other types of coverage); Platt v. Aspenwood Condo. Ass’n, Inc., 214 P.3d 1060 (Colo. App. 2009) (allegations of misrepresentations of status of homeowners vote sufficient to withstand motion to dismiss); Fluid Tech., Inc. v. CVJ Axles, Inc., 964 P.2d 614 (Colo. App. 1998) (allegation that information was provided in course of defendant’s business was sufficient to withstand motion to dismiss); Messler v. Phillips, 867 P.2d 128 (Colo. App. 1993); Burman v. Richmond Homes Ltd., 821 P.2d 913 (Colo. App. 1991); Ebrahimi v. E.F. Hutton & Co., 794 P.2d 1015 (Colo. App. 1989) (distinguishing between the tort of negligent misrepresentation and tort of deceit). 2. A claim for negligent misrepresentation can be based only on misrepresentation of an existing fact. Branscum v. Am. Cmty. Mut. Ins. Co., 984 P.2d 675, 680 (Colo. App. 1999) (claim for negligent misrepresentation “cannot be based solely on the nonperformance of a promise to do something at a future time” (citing High Country Movin’, Inc. v. U.S. W. Direct Co., 839 P.2d 469 (Colo. App. 1992))); see also Colo. Pool Sys., Inc. v. Scottsdale Ins. Co., 2012 COA 178, ¶ 72, 317 P.3d 1262 (while expressions of opinion cannot support a negligent misrepresentation claim, liability for negligent misrepresentation may arise when a statement of opinion involves mixed statements of law and fact); Colo. Coffee Bean, LLC v. Peaberry Coffee, Inc., 251 P.3d 9 (Colo. App. 2010); Bedard v. Martin, 100 P.3d 584 (Colo. App. 2004). 3. A claim for negligent misrepresentation can be based on false information that the defendant gave the plaintiff for use in a business transaction between the plaintiff and the defendant. See, e.g., Keller, 819 P.2d at 72 (contracting party’s negligent misrepresentation of material facts prior to execution of agreement may provide basis for independent tort claim); Collins, 44 Colo. App. at 230, 616 P.2d at 155-56 (allegations that plaintiff relied on negligent misrepresentations of representative of defendant in entering into contract with the defendant stated claim for negligent misrepresentation in a business transaction). Manufacturer’s Liability 4. For a discussion of a manufacturer’s liability to a buyer for negligent misrepresentations made during the course of a sale of its product, see Keller, 819 P.2d at 72-74 (clause in integrated sales agreement that specifically disclaimed reliance on representations made prior to agreement’s execution did not preclude finding that buyer relied on such representations). Accord A.O. Smith Harvestore Prods., Inc. v. Kallsen, 817 P.2d 1038 (Colo. 1991). 30 9:5 NEGLIGENT MISREPRESENTATION CAUSING FINANCIAL LOSS IN A BUSINESS TRANSACTION — UNREASONABLE RELIANCE — DEFINED One is negligent in relying on information given by another when a reasonable person in the same or similar circumstances would not have so relied. Notes on Use 1. This instruction, rather than Instruction 9:6, should be used in conjunction with Instruction 9:4 for the definition of the plaintiff’s negligence when the affirmative defense of contributory negligence in the form of unreasonable reliance on the part of the plaintiff has been properly raised. See Note 5 of the Notes on Use to Instruction 9:4. 2. There is authority for the proposition that if the plaintiff has access to information that would have led to the discovery of the facts and that information was equally available to both parties, then plaintiff’s reliance is not justified or reasonable as a matter of law. See Bedard v. Martin, 100 P.3d 584 (Colo. App. 2004); Balkind v. Telluride Mtn. Title Co., 8 P.3d 581 (Colo. App. 2000); see also M.D.C./Wood, Inc. v. Mortimer, 866 P.2d 1380 (Colo. 1994). However, for a different test, see the cases and authorities cited in the Source and Authority to Instructions 19:8 to 19:10 (justifiable reliance). Source and Authority This instruction is supported by Robinson v. Poudre Valley Federal Credit Union, 654 P.2d 861 (Colo. App. 1982); and RESTATEMENT (SECOND) OF TORTS § 552A (1977). 31 9:6 NEGLIGENCE — DEFINED (INCLUDING ASSUMPTION OF THE RISK AND COMPARATIVE NEGLIGENCE CASES) Negligence means a failure to do an act which a reasonably careful person would do, or the doing of an act which a reasonably careful person would not do, under the same or similar circumstances to protect (oneself or) others from (bodily injury) (death) (property damage) (insert any other appropriate description, e.g., “financial loss”). (Negligence may also mean assumption of risk. A person assumes the risk of injury or damage if the person voluntarily or unreasonably exposes [himself] [herself] to such injury or damage with knowledge or appreciation of the danger and risk involved.) Notes on Use 1. Use whichever parenthesized phrases in the first paragraph are appropriate. In particular, whenever the defense of contributory negligence has been raised and is being submitted to the jury under the appropriate comparative negligence instructions, see Instructions 9:22–9:26, the parenthesized words “oneself or” should be used. 2. In Colorado, assumption of risk is a form of contributory negligence. For this reason, a separate instruction on the defense of assumption of risk should not be given in a case governed by the comparative negligence statute, § 13-21-111, C.R.S. See, e.g., Brown v. Kreuser, 38 Colo. App. 554, 560 P.2d 105 (1977). “Instructions on [contributory negligence and on] determining [the] comparative negligence percentages of the plaintiff and [the] defendant [Instructions 9:22–9:27] sufficiently cover the conduct heretofore classed as assumption of risk in Colorado. . . .” Id. at 558, 560 P.2d at 108; see also Loup-Miller v. Brauer & Assocs.–Rocky Mtn., Inc., 40 Colo. App. 67, 572 P.2d 845 (1977); Stefanich v. Martinez, 39 Colo. App. 500, 570 P.2d 554 (1977), aff’d on other grounds, 195 Colo. 341, 577 P.2d 1099 (1978). The parenthesized second paragraph of this instruction should be given only in comparative negligence cases governed by section 13-21-111, in which there is sufficient evidence to support it. See, e.g., Laughman v. Girtakovskis, 2015 COA 143, ¶ 25, 374 P.3d 504 (“the assumption of risk statute applies when the jury is required to apportion negligence”); Vititoe v. Rocky Mountain Pavement Maint., Inc., 2015 COA 82, ¶¶ 70-75, 412 P.3d 767 (evidence that plaintiff motorcyclist voluntarily accelerated toward truck in front of him moments before colliding with rear end of truck supported instruction containing assumption of risk language); Winkler v. Rocky Mtn. Conference of United Methodist Church, 923 P.2d 152 (Colo. App. 1995) (insufficient evidence of assumption of risk or fault on part of plaintiff to warrant comparative negligence instruction); Carter v. Lovelace, 844 P.2d 1288 (Colo. App. 1992) (distinguishing assumption of risk as a form of contributory negligence and concluding that evidence was insufficient to support instruction on assumption of risk). 3. In a professional malpractice case, when the claimed contributory negligence of a plaintiff relates only to the plaintiff’s failure, as a patient or a client, to do what a reasonable patient or client would or would not do with regard to the services being rendered by defendant, Instruction 15:6 or Instruction 15:24, whichever is appropriate, should be used for the definition of contributory negligence rather than this instruction. When a hospital admits a person into its 32 custody who the hospital knows is actively suicidal, and when the admission is for the purpose of preventing that person’s self-destructive behavior, the hospital assumes a duty to use reasonable care in preventing the patient from engaging in such behavior, and this duty subsumes any fault attributable to the plaintiff for harm suffered as a result of those self-destructive acts. In such circumstances, the defenses of comparative negligence or assumption of risk of the patient are inapplicable. See P.W. v. Children’s Hosp. Colo., 2016 CO 6, ¶ 25, 364 P.3d 891. 4. This instruction should not be used where the standard of care required of a person is greater than that normally required in a negligence case. See, e.g., Instruction 9:7. For cases involving children, see Instruction 9:9. 5. In automobile accident cases, the failure to comply with the mandatory seat belt law is admissible to mitigate “pain and suffering” damages. See Instruction 5:3 as to the effect of an injured party’s failure to wear a safety belt in an automobile accident case. However, an injured party’s failure to have worn an available seat belt does not constitute negligence. Fischer v. Moore, 183 Colo. 392, 517 P.2d 458 (1973) (events occurring before the effective date of the Comparative Negligence Statute, § 13-21-111); Churning v. Staples, 628 P.2d 180 (Colo. App. 1981) (events occurring after the adoption of the Comparative Negligence Statute). Similarly, the failure to wear a helmet while riding a motorcycle does not constitute negligence. Dare v. Sobule, 674 P.2d 960 (Colo. 1984); Lawrence v. Taylor, 8 P.3d 607 (Colo. App. 2000). If the jury learns that a motorcyclist was not wearing a helmet, a limiting instruction may be required. Vititoe, 2015 COA 82, ¶ 19. Source and Authority 1. This instruction is supported by Lyons v. Nasby, 770 P.2d 1250 (Colo. 1989); Matt Skorey Packard Co. v. Canino, 142 Colo. 411, 350 P.2d 1069 (1960); Maercklein v. Smith, 129 Colo. 72, 266 P.2d 1095 (1954); Hogue v. Colo. & S. Ry., 110 Colo. 552, 136 P.2d 276 (1943); Bedee v. Am. Med. Response of Colo., 2015 COA 128, ¶ 24, 361 P.3d 1083; Vititoe, 2015 COA 82, ¶¶ 61, 70; Winkler v. Shaffer, 2015 COA 63, ¶ 16, 356 P.3d 63; and Lombard v. Colo. Outdoor Educ. Ctr., Inc., 266 P.3d 412 (Colo. App. 2011). See also RESTATEMENT (SECOND) OF TORTS §§ 282-84 (1965); W. PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS § 32 (5th ed. 1984). 2. Contributory negligence has also been defined in similar terms by the Colorado courts in Burr v. Green Brothers Sheet Metal, Inc., 159 Colo. 25, 409 P.2d 511 (1966); King Soopers, Inc. v. Mitchell, 140 Colo. 119, 342 P.2d 1006 (1959); Peterson v. Kessler, 135 Colo. 102, 308 P.2d 610 (1957); Wilson v. Hill, 103 Colo. 409, 86 P.2d 1084 (1939); Colorado & S. Ry. v. Honaker, 92 Colo. 239, 19 P.2d 759 (1933); Blackman v. Rifkin, 759 P.2d 54 (Colo. App. 1988); Lannon v. Taco Bell, Inc., 708 P.2d 1370, 1372 (Colo. App. 1985) (“A party has a duty to refrain from acts or omissions to act which may contribute to the totality of acts which cause injury to him.”), aff’d on other grounds, 744 P.2d 43 (Colo. 1987); and Fay v. Kroblin Refrigerated Xpress, Inc., 644 P.2d 68 (Colo. App. 1981). See also RESTATEMENT (SECOND) OF TORTS § 464 (1965); PROSSER AND KEETON ON THE LAW OF TORTS, supra, at § 65. 3. The term comparative negligence has been defined as “a failure to do an act that a reasonably careful person would do, or the doing of an act that a reasonably careful person 35 P.2d 1251 (Colo. 1987); see also W. Stock Ctr., Inc., 195 Colo. at 378-79, 578 P.2d at 1050-51. However, where reasonable minds could disagree as to the degree of risk associated with the activity at issue, as determined by the level of the activity’s dangerousness and the public’s ability to recognize and guard against the risks, it may be proper to instruct the jury on the reasonable person standard and leave for the jury to decide what degree of care a reasonable person would have used under the circumstances. Imperial Distribution Servs., Inc., 741 P.2d at 1256. The better practice may be to instruct the jury, in addition to the traditional reasonable care instruction, that the degree of care that constitutes reasonable care in a particular case increases in proportion to the degree of risk associated with the particular activity. Id. at n.7 (citing Blueflame Gas, Inc., 679 P.2d 587-88. 6. Because not all inherently dangerous activities give rise to a heightened duty of care, distinctions among different kinds of inherently dangerous activities may be necessary. Compare Federal Ins. Co. v. Public Serv. Co., 194 Colo. 107, 570 P.2d 239 (1977) (imposing strict liability on electrical transmission utility because of inherently dangerous properties of electrical energy), with Huddleston v. Union Rural Elec. Ass’n, 841 P.2d 282 (Colo. 1992) (transporting persons in single-engine plane over mountains may be “inherently dangerous” activity for purposes of imposing vicarious liability on employer of independent contractor; no mention of heightened duty of care). Where the vicarious liability of an employer for its independent contractor’s ultrahazardous activities is at issue, see Note on Use 4 to Instruction 9:7A; where the vicarious liability of an employer for its independent contractor’s inherently dangerous activities is at issue, see Huddleston, 841 P.2d at 287. 7. Certain activities are so inherently dangerous as to be deemed ultrahazardous or abnormally dangerous, resulting in the imposition of strict liability for damages caused by such activities. See Bennett, 969 P.2d at 764 (distinguishing ultrahazardous from inherently dangerous activities); W. Stock Ctr., Inc., 195 Colo. at 379, 578 P.2d at 1050 (same). In such cases, Instruction 9:7A should be given instead of this Instruction 9:7. Source and Authority 1. This instruction is supported by Federal Insurance Co., 194 Colo. at 111, 570 P.2d at 241-42; Blankette v. Public Serv. Co. of Colorado, 90 Colo. 456, 10 P.2d 327 (1932); Denver Consolidated Electric Co. v. Lawrence, 31 Colo. 301, 73 P. 39 (1903); and Denver Consolidated Electric Co. v. Simpson, 21 Colo. 371, 41 P. 499 (1895). See also Smith v. Home Light & Power Co., 734 P.2d 1051 (Colo. 1987) (for purposes of strict liability in tort for a defective product, electricity is not a “product” that has been “sold” or put “in the stream of commerce,” at least not until it reaches the point where it has been made available for use by the consumer); Kedar v. Pub. Serv. Co. of Colo., 709 P.2d 15 (Colo. App. 1985) (citing this instruction with approval). 2. It is for the court to determine whether a particular activity is “inherently dangerous” and consequently within the scope of this instruction. Imperial Distribution Servs., Inc., 741 P.2d at 1254; Pizza v. Wolf Creek Ski Dev. Corp., 711 P.2d 671 (Colo. 1985). But see Huddleston v. Union Rural Elec. Ass’n, 841 P.2d 282 (Colo. 1992) (whether transporting persons in single-engine plane over mountains was an “inherently dangerous” activity for purposes of imposing vicarious liability on employer of independent contractor was a factual 36 question for jury to determine). For discussions of the factors to be considered in determining whether an activity is subject to the higher standard required by this instruction, see Imperial Distribution Servs., Inc., 741 P.2d at 1255-56; Minto v. Sprague, 124 P.3d 881 (Colo. App. 2005); and Mannhard v. Clear Creek Skiing Corp., 682 P.2d 64 (Colo. App. 1983). See also W. Stock Ctr., Inc., 195 Colo. at 378-79, 578 P.2d at 1050; Trinity Universal Ins. Co. v. Streza, 8 P.3d 613 (Colo. App. 2000) (in negligence action arising out of explosion of propane heater, where alleged tortfeasor was not engaged in business of supplying propane gas, trial court did not err in refusing to instruct jury on elements of inherently dangerous activities); Walcott v. Total Petroleum, Inc., 964 P.2d 609 (Colo. App. 1998) (dispensing gasoline at a service station not an ultrahazardous activity); Melton v. Larrabee, 832 P.2d 1069 (Colo. App. 1992) (installation of heat-tape around water pipe was not an “inherently dangerous” activity). 3. The duty of a ski lift operator to exercise the highest degree of care commensurate with lift’s practical operation was not preempted or abrogated by the enactment of either the Colorado Passenger Tramway Act, §§ 25-5-701 to -720, C.R.S., or the Colorado Ski Safety Act of 1979, §§ 33-44-101 to -114, C.R.S. Bayer v. Crested Butte Mtn. Resort, Inc., 960 P.2d 70 (Colo. 1998). 4. Ambulance driver owes passenger ordinary duty of care, not the duty to exercise the highest degree of care, when the ambulance is traveling at normal speeds in a nonemergency situation, and the passenger was wearing a seat belt. Bedee v. Am. Med. Response of Colo., 2015 COA 128, ¶ 30, 361 P.3d 1083. 37 9:7A ULTRAHAZARDOUS ACTIVITIES RESULTING IN STRICT LIABILITY For the plaintiff, (name), to recover from the defendant (name), on (his) (her) (its) claim of ultrahazardous activity liability, you must find that both of the following have been proved by a preponderance of the evidence: 1. The plaintiff has (injuries) (damages) (losses); 2. The defendant’s (insert description of ultrahazardous activity) was a cause of plaintiff’s (injuries) (damages) (losses). If you find that any one or more of these (number) statements has not been proved, then your verdict must be for the defendant. On the other hand, if you find that all of these (number) statements have been proved, (then your verdict must be for the plaintiff) (then you must consider the defendant’s affirmative defense(s) of [insert any affirmative defense that would be a complete defense to plaintiff’s claim]). If you find that (this affirmative defense has) (any one or more of these affirmative defenses have) been proved by a preponderance of the evidence, then your verdict must be for the defendant. However, if you find that (this affirmative defense has not) (none of these affirmative defenses have) been proved, then your verdict must be for the plaintiff. Notes on Use 1. This instruction should be used when, because of the uniquely inherently dangerous nature of the activity, strict liability is imposed for damages caused by such activities. See Garden of the Gods Village, Inc. v. Hellman, 133 Colo. 286, 294 P.2d 597 (1956) (imposing strict liability for property damage caused by blasting activities); Cass Co.-Contractors v. Colton, 130 Colo. 593, 279 P.2d 415 (1955) (same); cf. Garnet Ditch & Reservoir Co. v. Sampson, 48 Colo. 285, 110 P. 79 (1910) (imposing strict liability under statute for destruction of cattle caused by impounding water in a reservoir). But see Liber v. Flor, 160 Colo. 7, 415 P.2d 332 (1966) (refusing to apply rule of absolute liability for storage of dynamite). 2. Such uniquely inherently dangerous activities are often referred to as ultrahazardous or abnormally dangerous activities. Bennett v. Greeley Gas Co., 969 P.2d 754 (Colo. App. 1998) (distinguishing ultrahazardous from inherently dangerous activities). 3. The question whether an activity is ultrahazardous is question of law for the court. RESTATEMENT (SECOND) OF TORTS § 520 cmt. l (1977). Factors to be considered in whether an activity is ultrahazardous include whether: (1) the activity poses a high degree of risk of harm to a person, land, or chattels; (2) it is likely that the resulting harm will be great; (3) the risk cannot be eliminated by exercising reasonable care; (4) the activity is not a matter of common usage; (5) 40 9:9 CHILDREN — STANDARD OF CARE — NEGLIGENCE (INCLUDING COMPARATIVE NEGLIGENCE CASES) (A child under the age of seven at the time of an occurrence is incapable of negligence.) A child (seven years of age or older at the time of an occurrence) is under a duty to use that degree of care which children of similar age, experience and intelligence would ordinarily use under the same or similar circumstances to protect (themselves) (others) from (bodily injury) (death) (property damage). Notes on Use 1. When there is no dispute that the child was under seven years, only the first parenthesized paragraph should be used. When there is no dispute that the child was over the age of seven, only the second paragraph should be used, deleting the first parenthetical phrase referring to age. Where there is a dispute as to whether the child was under or over the age of seven, both paragraphs should be used. The other parenthetical words should be used as are appropriate to the issues in dispute and the evidence in the case. The alternative “others” or “themselves” is to be used depending on whether the minor party is alleged to have been negligent or contributorily negligent. If the minor party is alleged to have been both, then the instruction should read “themselves and others.” 2. While a child under the age of seven is incapable, as a matter of law, of being contributorily negligent, see Benallo v. Bare, 162 Colo. 22, 427 P.2d 323 (1967), and Fletcher v. Porter, 754 P.2d 788 (Colo. App. 1988), a child seven years of age or more is capable of being negligent under this instruction. LeCoq v. Klemme, 28 Colo. App. 590, 476 P.2d 280 (1970). Also, although a child may be negligent or contributorily negligent under the common- law standard of care stated in this instruction, a child under the age of ten, because he cannot be found guilty of criminal conduct under the provisions of section 18-1-801, C.R.S., may not be found negligent or contributorily negligent under the doctrine of negligence per se (Instruction 9:14). Calkins v. Albi, 163 Colo. 370, 431 P.2d 17 (1967). 3. The usual standard of care required of children as set out in this instruction does not apply to a minor operating a motor vehicle. See Instruction 11:5 (duty of care of minor operating motor vehicle). Source and Authority This instruction is supported by Roberts v. Fisher, 169 Colo. 288, 455 P.2d 871 (1969) (age); Krause v. Watson Brothers Transportation Co., 119 Colo. 73, 200 P.2d 387 (1948) (age); Lakeside Park Co. v. Wein, 111 Colo. 322, 141 P.2d 171 (1943) (age and intelligence); Simkins v. Dowis, 100 Colo. 355, 67 P.2d 627 (1937) (age and intelligence); Colorado Utilities Corp. v. Casady, 89 Colo. 156, 300 P. 601 (1931) (age); RESTATEMENT (SECOND) OF TORTS §§ 283A, 464 (1965); and W. PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS § 32, at 179-82 (5th ed. 1984). 41 9:10 VOLUNTEER — DUTY OF CARE One who voluntarily assumes the care of an (injured) (ill) person is under a duty to act as a reasonably careful person would under the same or similar circumstances. Notes on Use 1. Use whichever parenthesized word is more appropriate. 2. In appropriate cases this instruction may be modified to state the general rule concerning the duty of a volunteer who assumes a duty of affirmative action. See Leppke v. Segura, 632 P.2d 1057 (Colo. App. 1981) (one who does an affirmative act has a duty to use due care to avoid creating, as a result of such act, an unreasonable risk of foreseeable damage or injury to foreseeable persons (applying RESTATEMENT (SECOND) OF TORTS § 302 cmt. a (1965) (citing § 320))). 3. This instruction either should not be given, or, if given, should be appropriately modified in cases in which a statutory immunity from liability for ordinary negligence may be applicable. See, e.g., § 13-21-116(2), C.R.S. (acts or omissions of gratuitous volunteers); § 13- 21-108, C.R.S. (“Good Samaritan” statute); § 13-21-114, C.R.S. (immunity of persons and organizations engaged in mine rescue or recovery work). Source and Authority This instruction is supported by RESTATEMENT (SECOND) OF TORTS §§ 324, 324A (1965). See also St. Luke’s Hospital v. Indus. Comm’n, 142 Colo. 28, 349 P.2d 995 (1960) (dictum). 42 9:11 SUDDEN EMERGENCY Instruction Deleted Note In Bedor v. Johnson, 2013 CO 4, ¶ 2, 292 P.3d 924, the Colorado Supreme Court held that trial courts should no longer give the sudden emergency instruction in negligence cases because the instruction’s potential to mislead the jury greatly outweighs its minimal utility. 45 9:14 NEGLIGENCE PER SE — VIOLATION OF STATUTE OR ORDINANCE At the time of the occurrence in question in this case, the following (statute[s]) (ordinance[s]) of the [name of municipal corporation], State of Colorado (was) (were) in effect: (Insert quotation of applicable statute[s] or ordinance[s]). A violation of (this) (these) (statute[s]) (ordinance[s]) constitutes negligence. If you find such a violation, you may only consider it if you also find that it was a cause of the claimed (injuries) (damages) (losses). Notes on Use 1. Use whichever parenthesized words are appropriate. See Easton v. 1738 P’ship, 854 P.2d 1362 (Colo. App. 1993). 2. One or more appropriate instructions on cause should also be given with this instruction. See Part D of this chapter. 3. This instruction should not be given unless (1) one of the purposes of the statute or ordinance was to protect against the type of injuries or losses the plaintiff sustained, and (2) the plaintiff was a member of the group of persons the statute or ordinance was intended to protect. See Scott v. Matlack, Inc., 39 P.3d 1160 (Colo. 2002); Davenport v. Cmty. Corr. of the Pikes Peak Region, Inc., 962 P.2d 963 (Colo. 1998); Lyons v. Nasby, 770 P.2d 1250, 1257 (Colo. 1989); Dickinson v. Lincoln Bldg. Corp., 2015 COA 170M, ¶ 54, 378 P.3d 797 (building code section applicable to design and construction of exit doors was not enacted to protect against injuries potentially incurred when attempting to open a locked exit door); Lawson v. Stow, 2014 COA 26, ¶¶ 43, 47, 327 P.3d 340 (the false reporting statute, § 18-8-111(1)(b), C.R.S., cannot serve as the basis for negligence per se claim); Smit v. Anderson, 72 P.3d 369 (Colo. App. 2002) (building code not designed to protect person injured while assisting owner in building house); Trinity Universal Ins. Co. v. Streza, 8 P.3d 613 (Colo. App. 2000) (fuel products statute not applicable to incidental use of propane heater by contractor); Liebelt v. Bob Penkhus Volvo-Mazda, Inc., 961 P.2d 1147 (Colo. App. 1998) (automobile dealer was not negligent per se by violating “dealer plate law”); Jacque v. Pub. Serv. Co. of Colo., 890 P.2d 138 (Colo. App. 1994); Martin v. Minnard, 862 P.2d 1014 (Colo. App. 1993); Deacon v. Am. Plant Food Corp., 782 P.2d 861 (Colo. App. 1989), rev’d on other grounds sub nom. Stone’s Farm Supply, Inc. v. Deacon, 805 P.2d 1109 (Colo. 1991); Comfort v. Rocky Mtn. Consultants, Inc., 773 P.2d 615 (Colo. App. 1989); Russo v. Birrenkott, 770 P.2d 1335 (Colo. App. 1988); see also Leake v. Cain, 720 P.2d 152 (Colo. 1986); Dunbar v. Olivieri, 97 Colo. 381, 50 P.2d 64 (1935), overruled on other grounds by Mile High Fence Co. v. Radovich, 175 Colo. 537, 489 P.2d 308 (1971); Crespin v. Largo Corp., 698 P.2d 826 (Colo. App. 1984), aff’d, 727 P.2d 1098 (Colo. 1986); Bartley v. Floyd, 695 P.2d 781 (Colo. App. 1984), aff’d, 727 P.2d 1109 (Colo. 1986) (plaintiff within class of persons intended to be protected); Aetna Cas. & Surety Co. v. Crissy Fowler Lumber Co., 687 P.2d 514 (Colo. App. 1984); Phillips v. Monarch 46 Recreation Corp., 668 P.2d 982 (Colo. App. 1983); Iverson v. Solsbery, 641 P.2d 314 (Colo. App. 1982); Hamilton v. Gravinsky, 28 Colo. App. 408, 474 P.2d 185 (1970), aff’d, 174 Colo. 206, 483 P.2d 385 (1971); RESTATEMENT (SECOND) OF TORTS § 286 (1965); W. PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS § 36, at 222-27 (5th ed. 1984). 4. This instruction does not apply when the ordinance or statute is construed as only imposing an obligation for the benefit of the public at large, rather than for individuals, as members of the public. Bittle v. Brunetti, 712 P.2d 1112, 1113 (Colo. App. 1985) (ordinance requiring abutting landowner to remove snow from a public walk “is penal only and cannot serve as a basis of civil liability for one injured on the walk”), aff’d, 750 P.2d 49 (Colo. 1988) (unless legislative body expressly makes property owners civilly liable for a violation, intended purpose will be understood to benefit primarily the municipality); accord Foster v. Redd, 128 P.3d 316 (Colo. App. 2005); see also Dunlap v. Colo. Springs Cablevision, Inc., 799 P.2d 416 (Colo. App. 1990) (if the exclusive purpose of a legislative enactment is to secure rights or privileges to the public at large, not citizens in their individual capacity, no basis exists for a claim of negligence per se), rev’d on other grounds, 829 P.2d 1286 (Colo. 1992). 5. Nor should this instruction be given unless there is sufficient evidence that the conduct was in violation of the relevant statute or ordinance as construed by the court, and that such violation was a proximate cause of the damages being claimed. Orth v. Bauer, 163 Colo. 136, 429 P.2d 279 (1967); Parrish v. Smith, 102 Colo. 250, 78 P.2d 629 (1938); see Beasley v. Best Car Buys, LTD, 2015 COA 145, ¶ 32, 363 P.3d 777; Harless v. Geyer, 849 P.2d 904 (Colo. App. 1992); Kepley v. Kim, 843 P.2d 133 (Colo. App. 1992); Comfort v. Rocky Mtn. Consultants, Inc., 773 P.2d 615 (Colo. App. 1989) (proof of violation required); Hilberg v. F.W. Woolworth Co., 761 P.2d 236 (Colo. App. 1988), overruled on other grounds by Casebolt v. Cowan, 829 P.2d 352 (Colo. 1992); Sanchez v. Staats, 34 Colo. App. 243, 526 P.2d 672 (1974), aff’d, 189 Colo. 228, 539 P.2d 1233 (1975); see also Lego v. Schmidt, 805 P.2d 1119 (Colo. App. 1990) (no evidence that defendants, who were passengers in vehicle which struck pedestrian, violated ordinance or statute or that “their use of vehicle was a proximate cause of pedestrian’s injuries”). 6. If necessary, the court should give additional instructions defining the terms used in the statute or ordinance. 7. Because a child under the age of ten cannot be found guilty of criminal conduct under the provisions of section 18-1-801, C.R.S., this instruction is not applicable to such children. Calkins v. Albi, 163 Colo. 370, 431 P.2d 17 (1967). Source and Authority 1. This instruction is supported by Largo Corp. v. Crespin, 727 P.2d 1098 (Colo. 1986); Palmer v. A.H. Robins Co., Inc., 684 P.2d 187 (Colo. 1984) (statute); Kirk v. Himes, 170 Colo. 378, 461 P.2d 444 (1969) (statute); Reed v. Barlow, 153 Colo. 451, 386 P.2d 979 (1963) (ordinance violation involving contributory negligence of plaintiff); Lambotte v. Payton, 147 Colo. 207, 363 P.2d 167 (1961); La Garde v. Aeverman, 144 Colo. 465, 356 P.2d 971 (1960); Ankeny v. Talbot, 126 Colo. 313, 250 P.2d 1019 (1952); Barsch v. Hammond, 110 Colo. 441, 135 P.2d 519 (1943) (statute); and Hertz Driv-Ur-Self Sys., Inc. v. Hendrickson, 109 Colo. 1, 47 121 P.2d 483 (1942) (statute). See also City & County of Denver v. DeLong, 190 Colo. 219, 545 P.2d 154 (1976); Nutting v. N. Energy, Inc., 874 P.2d 482 (Colo. App. 1994); Schneider v. Midtown Motor Co., 854 P.2d 1322 (Colo. App. 1992) (trial court erred in granting summary judgment for automobile dealer where material issues of fact remained on issue of whether violation of statute prohibiting automobile owner from allowing unlicensed driver to drive constituted negligence per se). 2. The doctrine of negligence per se does not apply unless the statute or ordinance prescribes or proscribes specific conduct. Sego v. Mains, 41 Colo. App. 1, 578 P.2d 1069 (1978). It does not apply, for example, to a statutorily authorized discretionary act. Bauer v. Sw. Denver Mental Health Ctr., Inc., 701 P.2d 114 (Colo. App. 1985). Neither does the doctrine apply when the defendant was unaware he or she was engaged in the conduct that constituted the violation. Singleton v. Collins, 40 Colo. App. 340, 574 P.2d 882 (1978). In situations in which a statute or ordinance does not contain an absolute prohibition of the conduct in question, but instead uses language implying that a violation of the statute or ordinance must be based upon volitional conduct, it may be appropriate to modify this instruction to include additional language requiring the jury to consider whether the alleged violation was undertaken with the level of negligence, knowledge, or intent required by the statute or ordinance. Novak v. Craven, 195 P.3d 1115 (Colo. App. 2008). 3. If a statutory standard of care is a codification of common-law negligence, the negligence per se instruction has no practical effect when given alongside a common-law negligence instruction. In such cases, the court need not give both a common-law negligence instruction and a negligence per se instruction. Winkler v. Shaffer, 2015 COA 63, ¶ 18, 356 P.3d 1020; Silva v. Wilcox, 223 P.3d 127 (Colo. App. 2009); see Fishman v. Kotts, 179 P.3d 232 (Colo. App. 2007); RESTATEMENT (THIRD) OF TORTS: LIABILITY FOR PHYSICAL HARM § 14 cmt. e (2005). 4. In cases subject to the Colorado Premises Liability Act, § 13-21-115, C.R.S., a plaintiff may not assert a claim of negligence per se against a landowner to recover for damages caused on the premises. The premises liability statute establishes a comprehensive and exclusive legislative scheme for premises liability claims. However, certain statutes or ordinances may be relevant to establish the standard of reasonable care, and violation of that statute or ordinance may be evidence of a failure to exercise reasonable care for purposes of establishing a premises liability claim. Lombard v. Colo. Outdoor Educ. Ctr., Inc., 187 P.3d 565 (Colo. 2008). 5. In addition to state statutes and municipal ordinances, this instruction, appropriately modified, also may be applicable to violations of applicable federal regulations. Compare Hageman v. TSI, Inc., 786 P.2d 452 (Colo. App. 1989), with Scott v. Matlack, Inc., 39 P.3d 1160 (Colo. 2002) (violation of regulatory standards issued pursuant to the Occupational Safety and Health Act, 29 U.S.C. §§ 651 to -678, does not constitute negligence per se but admission of regulations are some, albeit non-conclusive, evidence of the standard of care in the relevant industry), and Canape v. Petersen, 897 P.2d 762 (Colo. 1995) (same). 6. For a discussion of the possible impact of the Colorado Governmental Immunity Act on the application of the negligence per se doctrine, see State v. Moldovan, 842 P.2d 220 (Colo. 1992). 50 9:16 UNKNOWING VIOLATION OF STATUTE OR ORDINANCE It is not a defense to a claimed act of negligence that a person was unaware that his or her conduct constituted a violation of a (statute) (ordinance). Notes on Use 1. Use whichever parenthesized words are appropriate. 2. This instruction does not apply and should not be given in a case where the person allegedly violating the statute was unaware and reasonably could not be aware of the fact that he or she was engaging in the conduct which constituted the violation, for example, a person whose tail lights on the car the person was driving suddenly went out while the person was driving on a highway at night. See also Singleton v. Collins, 40 Colo. App. 340, 574 P.2d 882 (1978) (landlady not held liable under the doctrine of negligence per se when unaware condition on the premises, created by builder, was in violation of ordinance, and governmental inspection had indicated building was in compliance). 3. This instruction is intended only to cover the situation where the person was aware he or she was engaging in the conduct, but was unaware of a statute or ordinance making such conduct unlawful. 4. In appropriate cases, this instruction should be given with Instruction 9:14 (violation of statute or ordinance). 5. For exceptions to the rule stated in this instruction, see section 18-1-504(2), C.R.S. Source and Authority This instruction is supported by section 18-1-504(2), and RESTATEMENT (SECOND) OF TORTS § 290 cmt. o (1965). 51 9:17 RES IPSA LOQUITUR — PERMISSIBLE INFERENCE ARISING FROM REBUTTABLE PRESUMPTION OF NEGLIGENCE In deciding whether or not the defendant, (name), was negligent, you may, but are not required to, draw an inference that the defendant was negligent if you find that: 1. The plaintiff, (name), had (injuries) (damages) (losses) caused by the (insert appropriate description of instrumentality); and 2. Such (injuries) (damages) (losses) would not have occurred unless someone was negligent in (insert one or more appropriate descriptions, e.g., “using,” “handling,” “operating,” “manufacturing,” “repairing,” “maintaining,” etc.) the (insert appropriate description of instrumentality); and 3. At the time and in the way such negligence probably occurred, it was more likely that the negligence of the defendant (or someone for whom the defendant was legally responsible), rather than the negligence of anyone else, caused the plaintiff’s (injuries) (damages) (losses). If you draw this inference, you may consider it along with all the other evidence in the case in deciding whether or not the defendant was negligent. Notes on Use 1. To demonstrate the applicability of res ipsa loquitur, a plaintiff must introduce evidence that, when viewed in the light most favorable to the plaintiff, establishes each of three elements by a preponderance of the evidence: (1) the event is of the kind that ordinarily does not occur in the absence of negligence; (2) responsible causes other than the defendant’s negligence are sufficiently eliminated; and (3) the presumed negligence is within the scope of the defendant’s duty to the plaintiff. Chapman v. Harner, 2014 CO 78, ¶ 5, 339 P.3d 519; Kendrick v. Pippin, 252 P.3d 1052 (Colo. 2011). 2. Formerly, when the trial court determined that res ipsa loquitur applied, the jury was instructed to consider the presumption of negligence together with all other evidence in the case in deciding whether or not the defendant was negligent. In Chapman, 2014 CO 78, ¶¶ 25-26, however, the Supreme Court held that, under Rule 301, the res ipsa loquitur doctrine shifts only the burden of going forward with evidence to rebut the presumed fact of negligence. The doctrine does not shift the burden of proof, which remains on the plaintiff throughout the case. 3. If the plaintiff presents sufficient evidence for a jury to find in favor of the plaintiff on the elements of res ipsa loquitur, then the burden shifts to the defendant to produce legally sufficient evidence rebutting the presumption. Chapman, 2014 CO 78, ¶ 25. If the defendant fails to produce legally sufficient evidence rebutting the presumption, Chapman does not state the procedure to be followed. Krueger v. Ary, 205 P.3d 1150 (Colo. 2009), addressing the rebuttable presumption of undue influence in will contests, sets forth in detail the general procedure for applying a rebuttable presumption. Although Krueger was distinguished in 52 Chapman, 2014 CO 78, ¶ 15, on the effect of applying res ipsa loquitur, Krueger nonetheless may provide guidance about the procedure when the defendant fails to rebut the presumption of negligence created by res ipsa loquitur. Krueger states that “if the opponent does not meet her burden [of going forward], the presumption establishes the presumed facts as a matter of law.” 205 P.3d at 1156. In that event, see Instruction 2:6 (instructing jury on remaining issues where trial court has directed a verdict on negligence against the defendant). 4. If the defendant meets the burden of going forward by producing sufficient evidence to rebut the presumption of negligence, then “the presumption is destroyed and only a permissible inference of negligence remains. The jury may consider this inference alongside the other evidence in determining whether the plaintiff satisfied his burden to prove that the defendant was negligent, but it is not required to do so, and the trial court has discretion to determine whether or not to instruct the jury on the remaining permissible inference.” Chapman, 2014 CO 78, ¶ 25. If the court decides to instruct on the remaining permissible inference, this instruction, rather than Instruction 3:5 (permissible inference arising from rebuttable presumption), should be used. However, the supreme court “disfavor[s] instructions emphasizing specific evidence.” Krueger, 205 P.3d at 1157. “A trial court does not abuse its discretion in failing to instruct the jury on a permissible inference unless the omission caused substantial prejudice to the requesting party.” Id. When the permissible inference arises, an instruction should be given if “justified by strong underlying policy considerations.” Id. 5. As an example of policy considerations that would support giving a permissible inference instruction, the court in Krueger cited the presumption that evidence destroyed by a civil litigant would have been unfavorable to the destroying party. Id. “A trial court may give this permissible inference instruction as long as it furthers two underlying rationales.” Id. “The instruction should be both punitive and remedial; it should deter the parties from destroying evidence, and restore the prejudiced party to the position she would have been in had the evidence not been destroyed.” Id. 6. This instruction should not be given if the circumstances of the case “‘do not suggest or indicate superior knowledge or opportunity for explanation on the part of the party charged or if the plaintiff . . . has equal or superior means of information.’” Shutt v. Kaufman’s, Inc., 165 Colo. 175, 179-80, 438 P.2d 501, 503 (1968) (quoting Yellow Cab Co. v. Hodgson, 91 Colo. 365, 373, 14 P.2d 1081, 1084 (1932)). 7. If the doctrine of res ipsa loquitur applies, it is reversible error for the court to instruct the jury that the mere happening of an accident does not give rise to a presumption of negligence (Instruction 9:12). Trione v. Mike Wallen Standard, Inc., 902 P.2d 454 (Colo. App. 1995); see also Kitto v. Gilbert, 39 Colo. App. 374, 570 P.2d 544 (1977). 8. The doctrine of res ipsa loquitur may apply in cases involving more than one defendant and in cases where the defendant may not have had “exclusive” control in a literal sense. Branco E. Co. v. Leffler, 173 Colo. 428, 482 P.2d 364 (1971); see also Ochoa v. Vered, 212 P.3d 963 (Colo. App. 2009); Auxier v. Auxier, 843 P.2d 93 (Colo. App. 1992), overruled on other grounds by Scott v. Matlack, Inc., 39 P.3d 1160 (Colo. 2002). On the question of what constitutes sufficient proof on the issue of “exclusive” control, compare Leffler, 482 P.2d 364, with Hilzer v. MacDonald, 169 Colo. 230, 454 P.2d 928 (1969); see also Holmes v. Gamble, 55 Co. v. Salida Gas Serv. Co., 793 P.2d 602 (Colo. App. 1989); Mudd, 40 Colo. App. at 77, 574 P.2d at 100; Kitto, 39 Colo. App. at 379-80, 570 P.2d 548; Majors v. J.C. Penney Co., Inc., 31 Colo. App. 568, 506 P.2d 399 (1972) (error to instruct on res ipsa loquitur where accident was one that could have occurred in the absence of any negligence on the defendant’s part and, further, could have been caused by plaintiff’s voluntary act, negligence or otherwise); Oil Bldg. Corp. v. Hermann, 29 Colo. App. 564, 488 P.2d 1126 (1971); Smith v. Curran, 28 Colo. App. 358, 472 P.2d 769 (1970); see also Krueger, 205 P.3d 1154-56 (procedure for applying rebuttable presumption of undue influence in will contest). 56 B. CAUSATION Special Note The Committee has intentionally eliminated the use of the word “proximate” when instructing the jury on causation issues because the concept of proximate cause is adequately included in the instructions in this Part B and because the word “proximate” tends to be confusing to the jury. 57 9:18 CAUSE WHEN ONLY ONE CAUSE IS ALLEGED — DEFINED The word “cause” as used in these instructions means an act or failure to act which in natural and probable sequence produced the claimed injury. It is a cause without which the claimed injury would not have happened. Notes on Use 1. Depending on the evidence in the particular case, when concurrent or succeeding causes are involved, additional instructions should be given with, or in lieu of, this instruction. See Instructions 9:19 and 9:20. 2. This instruction is not necessary and should not be given when Instruction 9:20 (intervening causes) is given. Reaves v. Horton, 33 Colo. App. 186, 518 P.2d 1380 (1973), aff’d in part, rev’d in part on other grounds, 186 Colo. 149, 526 P.2d 304 (1974). 3. This instruction applies a “but for” causation test, which cannot be satisfied based solely on evidence that the defendant’s conduct substantially increased the risk to the plaintiff. Reigel v. SavaSeniorCare L.L.C., 292 P.3d 977 (Colo. App. 2011) (disapproving instruction that stated, “If you find that [defendant’s] negligence increased the risk of [plaintiff’s] death or deprived [plaintiff] of some significant chance to avoid death, you may also find that [defendant’s] negligence was a cause of [plaintiff’s] death,” and declining to follow Sharp v. Kaiser Foundation Health Plan of Colorado, 710 P.2d 1153 (Colo. App. 1985), aff’d, 741 P.2d 714 (Colo. 1987)). Source and Authority 1. This instruction is supported by Kaiser Foundation Health Plan of Colorado v. Sharp, 741 P.2d 714 (Colo. 1987); Hook v. Lakeside Park Co., 142 Colo. 277, 351 P.2d 261 (1960); Stout v. Denver Park & Amusement Co., 87 Colo. 294, 287 P. 650 (1930); Colorado Springs & Interurban Railway v. Allen, 55 Colo. 391, 135 P. 790 (1913); Smith v. State Compensation Insurance Fund, 749 P.2d 462 (Colo. App. 1987); and Colorado Coal & Iron Co. v. Lamb, 6 Colo. App. 255, 40 P. 251 (1895). See also Reigel, 292 P.3d at 988 (approving Instruction 9:18 language as a correct statement of Colorado law); RESTATEMENT (SECOND) OF TORTS §§ 431-33 (1965). 2. As to the sufficiency of evidence on the issue of cause, see Gibbons v. Ludlow, 2013 CO 49, ¶ 2, 304 P.3d 239 (evidence insufficient to establish cause of economic damages beyond mere possibility or speculation); Lyons v. Nasby, 770 P.2d 1250 (Colo. 1989) (evidence of proximate cause sufficient); Kaiser Foundation Health Plan, 741 P.2d at 719 (cause need not be proved with absolute certainty, nor need defendant’s conduct be proved the only cause); Bayly, Martin & Fay, Inc. v. Pete’s Satire, Inc., 739 P.2d 239 (Colo. 1987) (proof of cause when insurance agent negligently fails to obtain requested insurance coverage); and Reigel, 292 P.3d at 988 (plaintiff must establish causation beyond mere possibility or speculation). For the general test for determining the sufficiency of evidence, see Gossard v. Watson, 122 Colo. 271, 221 P.2d 353 (1950). 60 applicable and the theory or theories to which it would not. Kerby v. Flamingo Club, Inc., 35 Colo. App. 127, 532 P.2d 975 (1974). 4. In civil actions in which the negligence or fault of a designated nonparty has been properly put in issue under sections 13-21-111.5(2) and (3)(b), C.R.S., as a cause, in whole or in part, of the plaintiff’s claimed damages, this instruction should be used rather than Instruction 9:19. In addition, in those cases, Instruction 9:24 (negligence or fault of designated nonparty) should also be given. Source and Authority 1. This instruction is supported by the authorities cited in Source and Authority to Instruction 9:19. Additional cases support the second paragraph of this instruction. See Moore v. Standard Paint & Glass Co., 145 Colo. 151, 358 P.2d 33 (1960) (acts of others and act of God concurring with defendant’s negligence); Barlow v. N. Sterling Irrigation Dist., 85 Colo. 488, 277 P. 469 (1929) (concurring act of God); Ryan Gulch Reservoir Co. v. Swartz, 83 Colo. 225, 263 P. 728 (1928) (same); Bradley v. Guess, 797 P.2d 749 (Colo. App. 1989), rev’d on other grounds sub nom. Seaward Constr. Co. v. Bradley, 817 P.2d 971 (Colo. 1991). 2. “‘An intervening act of a human being . . . which is a normal response to the stimulus of a situation created by [the actor’s] negligent conduct, is not a superseding cause of harm to another which the actor’s conduct is a substantial factor in bringing about.’” Calkins v. Albi, 163 Colo. 370, 377, 431 P.2d 17, 20 (1967) (quoting RESTATEMENT (SECOND) OF TORTS § 443 (1965)); see also Webb v. Dessert Seed Co., 718 P.2d 1057 (Colo. 1986) (the precise manner in which the injuries were caused need not have been foreseeable). 3. Cases supporting the third parenthesized paragraph include Farmers Mutual Insurance Co. v. Chief Industries, Inc., 170 P.3d 832 (Colo. App. 2007) (defendant who seeks to assert defense of intervening cause must request optional instruction language from the third parenthesized paragraph or the issue of intervening cause is deemed to be waived); and Smith v. State Compensation Insurance Fund, 749 P.2d 462 (Colo. App. 1987) (subsequent motorcycle accident an independent, intervening cause because not a foreseeable consequence of the defendant’s claimed negligence). 4. In Webb, 718 P.2d at 1063-64, the court adopted the test that is set forth in the RESTATEMENT (SECOND) OF TORTS § 442B (1965), for determining the existence of an intervening cause. Accord Groh v. Westin Operator, LLC, 2013 COA 39, ¶ 49, 352 P.3d 472, aff’d, 2015 CO 25, 347 P.3d 606; Scharrel v. Wal-Mart Stores, Inc., 949 P.2d 89 (Colo. App. 1997); Voight v. Colo. Mtn. Club, 819 P.2d 1088 (Colo. App. 1991). Intervening cause principles apply in situations in which the defendant’s negligence is alleged to have caused the plaintiff’s decedent to commit suicide. In such cases, the test set forth in the RESTATEMENT (SECOND) OF TORTS § 455 (1965), is relevant in determining causation. Moore v. W. Forge Corp., 192 P.3d 427 (Colo. App. 2007). 5. In a medical malpractice case, treatment by subsequent providers that constitutes ordinary negligence is not an intervening cause. Danko v. Conyers, 2018 COA 14, ¶ 63. But 61 misconduct by a later provider that is extraordinary constitutes an intervening cause. Id. at ¶ 31 (citing RESTATEMENT (SECOND) OF TORTS § 457 cmt. d (1979)). 6. As to the sufficiency of evidence on the issue of cause, see Kaiser Foundation Health Plan of Colorado v. Sharp, 741 P.2d 714 (Colo. 1987) (cause need not be proved with absolute certainty, nor need defendant’s conduct be proved the only cause). See also Gossard v. Watson, 122 Colo. 271, 221 P.2d 353 (1950). 62 9:21 CAUSE — FORESEEABILITY LIMITATION The negligence, if any, of the defendant, (name), is not a cause of any (injuries) (damages) (losses) to the plaintiff, (name), unless injury to a person in the plaintiff’s situation was a reasonably foreseeable result of that negligence. The specific injury need not have been foreseeable. It is enough if a reasonably careful person, under the same or similar circumstances, would have anticipated that injury to a person in the plaintiff’s situation might result from the defendant’s conduct. Notes on Use 1. This instruction is not applicable to unique or extensive unforeseeable injuries the plaintiff may have sustained because of some physical or mental peculiarity of the plaintiff, as long as some physical impact with the plaintiff was foreseeable. For example, a negligent driver who collides with another’s car cannot avoid liability for all the other person’s damages even though, because of personal peculiarities, the plaintiff’s injuries or damages may be greatly in excess of what a reasonable person might expect a typical plaintiff to sustain. See W. PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS § 43, at 291-92 (5th ed. 1984); see also Instruction 6:7 (“thin skull” doctrine). 2. This instruction should be used “only when the evidence presents a jury question on whether the injured party was a person within the foreseeable zone of danger created by defendant’s negligence and thus was owed a duty by defendant.” Chutich v. Samuelson, 33 Colo. App. 195, 201, 518 P.2d 1363, 1367 (1973), aff’d in part, rev’d in part on other grounds, 187 Colo. 155, 529 P.2d 631 (1974); see also Walcott v. Total Petroleum, Inc., 964 P.2d 609 (Colo. App. 1998) (risk that purchaser of gasoline would intentionally throw it on victim and set victim on fire was not reasonably foreseeable by operator of service station); Scharrel v. Wal- Mart Stores, Inc., 949 P.2d 89 (Colo. App. 1997); Cooley v. Paraho Dev. Corp., 851 P.2d 207 (Colo. App. 1992), aff’d on other grounds sub nom. Gen. Elec. Co. v. Niemet, 866 P.2d 1361 (Colo. 1994); Sewell v. Pub. Serv. Co. of Colo., 832 P.2d 994 (Colo. App. 1991). Source and Authority 1. This instruction is supported by Aikens v. George W. Clayton Trust Commission, 132 Colo. 374, 288 P.2d 349 (1955) (defendants could not reasonably foresee the accident); Stout v. Denver Park & Amusement Co., 87 Colo. 294, 287 P. 650 (1930) (intervening cause could not reasonably have been anticipated); and Town of Lyons v. Watt, 43 Colo. 238, 95 P. 949 (1908) (same). See also Webb v. Dessert Seed Co., 718 P.2d 1057 (Colo. 1986) (the precise manner in which the injuries were caused need not have been foreseeable); Smith v. State Comp. Ins. Fund, 749 P.2d 462 (Colo. App. 1987) (subsequent motorcycle accident not foreseeable); Wesley v. United Servs. Auto. Ass’n, 694 P.2d 855 (Colo. App. 1984) (quoting this instruction with approval). 2. The fact that it may not have been foreseeable that an injury to the plaintiff as a particular individual person might result from the defendant’s conduct does not necessarily absolve the defendant from liability. It is sufficient if the plaintiff was within a group of 65 9:22 ELEMENTS OF LIABILITY — COMPARATIVE NEGLIGENCE For the plaintiff, (name), to recover from the defendant, (name), on (his) (her) claim of negligence, you must find that all of the following have been proved by a preponderance of the evidence: 1. The plaintiff had (injuries) (damages) (losses); 2. The defendant was negligent; and 3. The defendant’s negligence was a cause of the plaintiff’s (injuries) (damages) (losses). If you find that any one or more of these (number) statements has not been proved, then your foreperson shall complete only Special Verdict Form A, and all jurors shall sign it. On the other hand, if you find that all of these (number) statements have been proved, then your foreperson shall complete only Special Verdict Form B and he or she and all jurors shall sign it. Notes on Use 1. Omit any numbered paragraphs, the facts of which are not in dispute. 2. Whenever this instruction is given, Instruction 9:23 and Instruction 9:26, 9:27, or 9:28, together with the corresponding special verdict forms, must also be given. 3. The comparative negligence statute, § 13-21-111, C.R.S., applies “in any action by any person or his legal representative to recover damages for negligence resulting in death or in injury to person or property” in which the comparative negligence of the plaintiff has been raised as a defense and there is evidence that would support a finding that both the plaintiff and the defendant were negligent and that such negligence caused the plaintiff’s injuries. DeBose v. Bear Valley Church of Christ, 890 P.2d 214 (Colo. App. 1994), rev’d on other grounds, 928 P.2d 1315 (Colo. 1996); see also Reid v. Berkowitz, 2013 COA 110M, ¶ 52, 315 P.3d 185. When such evidence is lacking, comparative negligence instructions should not be given. Kildahl v. Tagge, 942 P.2d 1283 (Colo. App. 1997); Morgan v. Bd. of Water Works of Pueblo, 837 P.2d 300 (Colo. App. 1992); Powell v. City of Ouray, 32 Colo. App. 44, 507 P.2d 1101 (1973). 4. In a comparative negligence case, if the court directs a finding or verdict of negligence against one or more of the parties, the court must also instruct the jury as to the conduct on which the finding is based as well as any other conduct the jury could reasonably find constituted negligence, in order to permit the jury to make a proper comparison of such negligence with any negligence of other parties the jury may find. Ricklin v. Smith, 670 P.2d 1239 (Colo. App. 1983). Also in such cases, the applicable “mechanics for submitting” instruction and special verdict forms, see Instructions 9:26A-9:28D, must be appropriately modified. 66 5. To the extent one or more forms of contributory negligence may be a partial defense to a product liability claim based on negligence, the “comparative fault” statute applies rather than the comparative negligence statute. § 13-21-406(4), C.R.S. 6. Comparative negligence is a defense to willful and wanton negligence. White v. Hansen, 837 P.2d 1229 (Colo. 1992); G.E.C. Minerals, Inc. v. Harrison W. Corp., 781 P.2d 115 (Colo. App. 1989). It is not, however, a defense to an intentional tort. Carman v. Heber, 43 Colo. App. 5, 601 P.2d 646 (1979); see also Finnigan v. Sandoval, 43 Colo. App. 219, 600 P.2d 123 (1979). 7. Generally, when there is evidence of negligence on the part of both the plaintiff and the defendant, the jury is responsible for deciding their comparative negligence. Gordon v. Benson, 925 P.2d 775 (Colo. 1996) (trial court must instruct on comparative negligence when evidence would support finding that both parties were at fault); Holmes v. Gamble, 655 P.2d 405 (Colo. 1982); Reid, 2013 COA 110M, ¶ 57 (comparative negligence instruction required where plaintiff, a veteran construction worker, worked on a dimly lit construction site, fell over debris, broke through stair railing, and landed three stories below, stating that “[a] plaintiff must be cognizant of the physical conditions and surroundings present when he or she acts or fails to act”); Wark v. McClellan, 68 P.3d 574 (Colo. App. 2003) (comparative negligence instruction proper where plaintiffs and their children were injured in accident while passengers in an automobile driven by someone that plaintiffs knew or should have known was intoxicated, however, comparative negligence instruction based on theory that plaintiffs should have interfered with driver was not warranted); Carlson v. Ferris, 58 P.3d 1055 (Colo. App. 2002) (failure to fully use safety belt system not a proper consideration in determining comparative negligence), aff’d on other grounds, 85 P.3d 504 (Colo. 2003), and overruled on other grounds by Trattler v. Citron, 182 P.3d 674 (Colo. 2008); Sheron v. Lutheran Med. Ctr., 18 P.3d 796 (Colo. App. 2000) (patient who committed suicide after being discharged from hospital could be found comparatively negligent in wrongful death action against health care providers); Bennett v. Greeley Gas Co., 969 P.2d 754 (Colo. App. 1998) (trial court erred in not submitting issue of comparative negligence to jury); Voight v. Colo. Mtn. Club, 819 P.2d 1088 (Colo. App. 1991) (trial court erred in setting aside jury verdict and determining as a matter of law that plaintiff was as negligent as defendant). But see Huntoon v. TCI Cablevision of Colo., Inc., 969 P.2d 681 (Colo. 1998) (trial court acted properly in refusing to submit issue of comparative negligence to jury). 8. “[A] plaintiff’s comparative fault should not be reduced based on the number of defendants liable for damages.” Ferrer v. Okbamicael, 2017 CO 14M, ¶ 38, 390 P.3d 836, 846- 47. For example, “[i]n a motor vehicle accident, comparative fault as it applies to the plaintiff should end with the parties to the accident. A plaintiff’s comparative negligence remains the same, regardless of whether the remaining fault can be allocated in part to the employer based on negligent entrustment.” Id. (alteration in original) (quoting Gant v. L.U. Transp., Inc., 770 N.E.2d 1155, 1159 (Ill. App. Ct. 2002)). “Thus, if a plaintiff is fifty percent at fault in an accident, her comparative negligence should not be diminished simply because the portion of fault for which she is not responsible may be attributed to two defendants instead of one.” Id. 9. An employer who acknowledges vicarious liability for an employee’s negligence is strictly liable for the employee’s negligence “regardless of the ‘percentage of fault’ as between 67 the party whose negligence directly caused the injury and the one whose liability for negligence is derivative.” Ferrer, 2017 CO 14M, ¶ 37, 390 P.3d at 846 (citation omitted). The employer is “responsible for all the fault attributed to the negligent employee, but only the fault attributed to the negligent employee as compared to the other parties to the accident.” Id. (citation omitted). 10. If a hospital admits a person into its custody who the hospital knows is actively suicidal for the purpose of preventing that person’s self-destructive behavior, the hospital assumes a duty to use reasonable care in preventing the patient from engaging in self-harm, and the patient is not comparatively negligent for engaging in self-harm. P.W. v. Children’s Hosp. Colo., 2016 CO 6, ¶ 25, 364 P.3d 891. A defendant may not raise a defense of comparative negligence as a matter of law if, under the circumstances, the plaintiff “did all he was legally required to do,” and had no duty to do more. Ringsby Truck Lines, Inc. v. Bradfield, 193 Colo. 151, 154, 563 P.2d 939, 942 (1977). 11. Punitive damages are not subject to reduction on the basis of assigned fault under comparative negligence and pro rata liability statutes. Lira v. Davis, 832 P.2d 240 (Colo. 1992). 12. In cases under the Federal Employers Liability Act, 45 U.S.C.A. §§ 51 to -60, a special verdict dealing with comparative negligence is not required by statute or necessity, though a special verdict or interrogatories accompanying a general verdict may be used. If used, the forms should be specifically prepared to conform to the applicable federal law. Felder v. Union Pac. R.R., 660 P.2d 911 (Colo. App. 1982). 13. Notwithstanding the provisions of the comparative negligence statute, § 13-21-111, and the proportionate liability statute, § 13-21-111.5, C.R.S., the assumption of inherent risks by a spectator of a professional baseball game may be a complete defense against liability in an action for injuries by a spectator against an owner of a professional baseball team or stadium. See § 13-21-120, C.R.S. Whenever, in light of the evidence in the case, this complete defense might be applicable, an instruction based on the provisions of section 13-21-120 should be given if supported by sufficient evidence. And, if the defense of comparative negligence might be applicable to a claim of negligence not covered by this complete defense, then the instruction covering this defense and the instructions covering the defense of comparative negligence must be worded so as to avoid confusing the jury. 14. To be effective as a defense, any negligence on the plaintiff’s part must have been a proximate cause of his injuries or losses. Roberts v. Fisher, 169 Colo. 288, 455 P.2d 871 (1969); Matt Skorey Packard Co. v. Canino, 142 Colo. 411, 350 P.2d 1069 (1960). 15. The principles of comparative negligence apply as a defense to a claim for damages under the Drug Dealer Liability Act, §§ 13-21-801 to -813, C.R.S., from a defendant who made illegal drugs available to an illegal user when the use of such drugs caused damages to the plaintiff. See § 13-21-806(1), C.R.S. Under section 13-21-806(2), however, that defense must be established by clear and convincing evidence. In such cases, this instruction and related comparative negligence instructions, appropriately modified as necessary, may be used. 16. A defendant who is negligent per se is not precluded from raising comparative negligence as a defense. Lyons v. Nasby, 770 P. 2d 1250 (Colo. 1989); accord McCall v. 70 9:24 AFFIRMATIVE DEFENSE — NEGLIGENCE OR FAULT OF DESIGNATED NONPARTY The affirmative defense of the (negligence) (or) (fault) of the nonparty, (insert name or other appropriate description), is proved if you find all of the following: 1. (insert name or other appropriate description of the nonparty) was (negligent) (or) (at fault); and 2. The (negligence) (or) (fault) of (insert name or other appropriate description of the nonparty) was a cause of the plaintiff’s claimed (injuries) (damages) (losses). Notes on Use 1. This instruction must be given whenever Instruction 9:28 or Instruction 9:29 is given and either instruction includes references to a nonparty properly identified or designated under section 13-21-111.5(3)(b), C.R.S. The negligence or fault of a nonparty cannot be considered unless the nonparty has been properly designated by the defendant in a pleading that complies with the requirements of section 13-21-111.5(3). Thompson v. Colorado & E. R.R., 852 P.2d 1328 (Colo. App. 1993). Nonparties need not have been engaged in the same kind of tortious conduct as the defendant in order to be properly designated. Moody v. A.G. Edwards & Sons, Inc., 847 P.2d 215 (Colo. App. 1992). Generally, a person or entity designated under section 13- 21-111.5, must have owed a duty recognized by law to the injured party. Miller v. Byrne, 916 P.2d 566 (Colo. App. 1995). 2. If a defendant properly identifies a nonparty under section 13-21-111.5(3)(b), and the plaintiff does not bring that nonparty into the lawsuit, the defendant bears the burden of proving the nonparty’s negligence and causation. The defendant’s failure to give proper statutory notice of the nonparty does not preclude a defendant, however, from contending at trial that the defendant was not negligent or that the plaintiff’s damages were not caused, actually or proximately, by the defendant’s negligence. Redden v. SCI Colo. Funeral Servs., Inc., 38 P.3d 75 (Colo. 2001); see also Danko v. Conyers, 2018 COA 14, ¶ 21. In these circumstances the name or other identification of any nonparty whose conduct may be involved will not appear on the verdict form for an allocation of negligence or fault, and this instruction should not be given. See Thompson, 852 P.2d at 1330. 3. Whenever this instruction is given, numbered paragraph 2 of Instruction 3:1 (defining preponderance of evidence) must be retained in that instruction when it is given. 4. Use whichever parenthesized words are appropriate. When the parenthesized word “fault” is used, another instruction defining what that term means in the context of the case must be given. 5. Even when a defendant is vicariously liable for the acts or omissions of another defendant or designated nonparty at fault under the nondelegable-duty doctrine, the jury should be instructed to determine the respective shares of fault of the vicariously liable defendant and 71 any other defendants and/or nonparties at fault. However, in entering judgment, the court should aggregate the fault of the vicariously liable defendant and any other defendants and/or nonparties at fault for whom the defendant is vicariously liable. Reid v. Berkowitz, 2013 COA 110M, ¶ 39, 315 P.3d 185; see also Kidwell v. K-Mart Corp., 942 P.2d 1280 (Colo. App. 1996) (while property owner was entitled to designate independent maintenance contractor as nonparty at fault, because of property owner’s nondelegable duty of care, plaintiff would be entitled to instruction on remand that negligence of contractor must be imputed to property owner). In Colorado, liability may be imputed under various legal theories, including respondeat superior, see Chapter 8 (Liability Based on Agency and Respondeat Superior), the inherently dangerous activity doctrine, see Huddleston v. Union Rural Elec. Ass’n, 841 P.2d 282 (Colo. 1992); Instruction 9:7 (inherently dangerous activities), and the nondelegable or independent duty doctrine, see Springer v. City & Cty. of Denver, 13 P.3d 794 (Colo. 2000). 6. A defendant is not entitled to a nonparty at fault instruction identifying a nonparty who, if brought into the action, would be liable only vicariously for the negligence or fault of another. Just In Case Bus. Lighthouse, LLC v. Murray, 2013 COA 112M, 383 P.3d 1, rev’d in part on other grounds, 2016 CO 47M, 374 P.3d 443; see also Ochoa v. Vered, 212 P.3d 963 (Colo. App. 2009) (physician, to whom liability for a surgical nurse’s negligence was imputed under the “captain of the ship” doctrine, is not a joint tortfeasor and cannot apportion some of the plaintiff’s damages to the nurse). Source and Authority This instruction is supported by section 13-21-111.5(1), (2), and (3)(b). See also Union Pac. R.R. v. Martin, 209 P.3d 185, 189 n.3 (Colo. 2009). 72 9:25 NEGLIGENCE OF PARENTS NOT IMPUTABLE TO CHILDREN The negligence, if any, of a parent, as a parent, cannot be charged to his or her child. Notes on Use This instruction does not apply and should not be given or should not be given without being appropriately modified when there is sufficient evidence of another relationship on the basis of which the parent’s negligence may be imputable to the child, for example, joint venture. See Instructions in Chapter 8 and in Chapter 11, Part C. Source and Authority 1. This instruction is supported by Public Service Co. of Colorado v. Petty, 75 Colo. 454, 226 P. 297 (1924) (citing Denver City Tramway Co. v. Brown, 57 Colo. 484, 143 P. 364 (1914)). See also Francis v. Dahl, 107 P.3d 1171 (Colo. App. 2005); Fletcher v. Porter, 754 P.2d 788 (Colo. App. 1988). 2. However, the fact that a parent’s negligence cannot be imputed to his or her child does not preclude a defendant from designating a child-plaintiff’s parent as a nonparty at fault under section 13-21-111.5, C.R.S. Paris ex rel. Paris v. Dance, 194 P.3d 404 (Colo. App. 2008) (defendant may designate minor plaintiff’s parent as nonparty at fault notwithstanding parental immunity). 75 9:26A SPECIAL VERDICT QUESTIONS — MECHANICS FOR SUBMITTING — COMPARATIVE NEGLIGENCE OF THE PLAINTIFF — SINGLE DEFENDANT — NO DESIGNATED NONPARTY You are instructed to answer the following questions. You must all agree on your answers to each question for which an answer is required. 1. Did the plaintiff, (name), have (injuries) (damages) (losses)? 2. Was the defendant, (name), negligent? 3. Was the defendant’s negligence, if any, a cause of any of the (injuries) (damages) (losses) claimed by the plaintiff? If your answer to any one or more of the above three questions is “no,” then your foreperson shall complete only Special Verdict Form A and all jurors shall sign it. On the other hand, if your answer to all three questions is “yes,” then you shall answer these questions as well as the following questions on Special Verdict Form B and all jurors shall sign it. 4. Was the plaintiff, (name), negligent? 5. Was the plaintiff’s negligence, if any, a cause of (his) (her) own claimed (injuries) (damages) (losses)? 6. State your answers to the following questions relating to the plaintiff’s damages that were caused by the negligence of the defendant, whether the damages were also caused by the negligence, if any, of the plaintiff (or anyone else). a. What is the total amount of plaintiff’s damages, if any, for noneconomic losses or injuries (, excluding any damages for [physical impairment] [or] [disfigurement])? Noneconomic losses or injuries are those losses or injuries described in numbered paragraph 1 of Instruction (insert number of the applicable Instruction on damages). You should answer “0” if you determine there were none. b. What is the total amount of plaintiff’s damages, if any, for economic losses (, excluding any damages for [physical impairment] [or] [disfigurement])? Economic losses are those losses described in numbered paragraph 2 of Instruction (insert number of applicable Instruction on damages). You should answer “0” if you determine there were none. (c. What is the total amount of plaintiff’s damages, if any, for [physical impairment] [or] [disfigurement]? You should answer “0” if you determine there were none.) If your answer to all five questions 1, 2, 3, 4, and 5 is “yes,” then you shall also answer the following question 7 on Special Verdict Form B. 76 7. Taking as 100 percent the combined negligence of the defendant and the plaintiff that caused the plaintiff’s (injuries) (damages) (losses), what percentage of the negligence was the defendant’s and what percentage was the plaintiff’s? Notes on Use 1. Instructions 6:1 (personal injuries) and 9:22 should be used with this instruction. The Notes on Use to Instructions 4:4 (verdict form), 6:1, and 9:22 are applicable to this instruction, along with the Special Note to Part C of this Chapter 9. 2. The parenthesized language in the first sentences of paragraphs 6a, 6b, and 6c of this instruction should only be given if there is sufficient evidence from which it can be inferred with a reasonable degree of probability that physical impairment or disfigurement has been sustained. 3. Omit the parenthesized clause in numbered question 6 unless some evidence of negligent conduct on the part of a person other than the plaintiff or the defendant has been brought into the case. 4. Whenever this instruction is given, the two verdict forms set out in Instruction 9:26B must also be used. 5. Insert any other questions which may be necessary to resolve properly any other claims of the plaintiff or affirmative defenses of the defendant. 6. If, in a district court case, the parties have stipulated to a verdict or finding by some stated majority pursuant to C.R.C.P. 48, this instruction should be modified accordingly. Source and Authority This instruction is supported by the authorities cited in the Notes on Use to Instruction 9:22. 77 9:26B SPECIAL VERDICT FORMS — COMPARATIVE NEGLIGENCE OF THE PLAINTIFF — NO COUNTERCLAIM — SINGLE DEFENDANT — NO DESIGNATED NONPARTY — FORMS A AND B Form A: IN THE _______ COURT IN AND FOR THE COUNTY OF _______, STATE OF COLORADO Civil Action No. _______ _________________________ ) Plaintiff, ) ) v. ) SPECIAL VERDICT ) FORM A _________________________ ) Defendant. ) DO NOT ANSWER THIS SPECIAL VERDICT FORM A IF YOUR FOREPERSON HAS COMPLETED AND ALL JURORS HAVE SIGNED SPECIAL VERDICT FORM B. We, the jury, present our Answers to Questions submitted by the Court, to which we have all agreed: 1. Did the plaintiff, (name), have (injuries) (damages) (losses)? (Yes or No) ANSWER: _______ 2. Was the defendant, (name), negligent? (Yes or No) ANSWER: _______ 3. Was the defendant’s negligence, if any, a cause of any of the (injuries) (damages) (losses) claimed by the plaintiff? (Yes or No) ANSWER: _______ We, the jury, having answered one or more of the above three questions “no,” find the issues for the defendant, (name). 80 MUST TOTAL: 100% Signatures of all jurors: ______________________________ ______________________________ Foreperson ______________________________ ______________________________ ______________________________ ______________________________ Notes on Use 1. See Notes on Use to Instruction 9:26A and Special Note to Part C of this Chapter 9. Source and Authority This instruction is supported by the authorities cited in the Notes on Use to Instruction 9:22. 81 9:26C SPECIAL VERDICT QUESTIONS — MECHANICS FOR SUBMITTING — COMPARATIVE NEGLIGENCE OF THE PLAINTIFF — NO COUNTERCLAIM — SINGLE DEFENDANT — NO DESIGNATED NONPARTY (ALTERNATIVE TO INSTRUCTION 9:26A) You are instructed to answer the following questions. You must all agree on your answers to each question for which an answer is required. 1. Did the plaintiff, (name), have (injuries) (damages) (losses)? 2. Was the defendant, (name), negligent? 3. Was the defendant’s negligence, if any, a cause of any of the (injuries) (damages) (losses) claimed by the plaintiff? If your answer to any one or more of the above three questions is “no,” then your foreperson shall complete only Special Verdict Form A and all jurors shall sign it. On the other hand, if your answer to all three questions is “yes,” then you shall answer these questions as well as the following questions on Special Verdict Form B and all jurors shall sign it. 4. Was the plaintiff, (name), negligent? 5. Was the plaintiff’s negligence, if any, a cause of (his) (her) own claimed (injuries) (damages) (losses)? If your answer to all five questions 1, 2, 3, 4, and 5 is “yes,” then you shall also answer the following question 6 on Special Verdict Form B. Otherwise skip question 6 and go on to question 7. 6. Taking as 100 percent the combined negligence of the defendant and the plaintiff that caused the plaintiff’s (injuries) (damages) (losses), what percentage of the negligence was the defendant’s and what percentage was the plaintiff’s? If you determine that the negligence of the plaintiff was equal to or greater than the negligence of the defendant, i.e., 50% or more, then skip question 7. 7. State your answers to the following questions relating to the plaintiff’s damages that were caused by the negligence of the defendant, whether the damages were also caused by the negligence, if any, of the plaintiff (or anyone else). a. What is the total amount of plaintiff’s damages, if any, for noneconomic losses or injuries (, excluding any damages for [physical impairment] [or] [disfigurement])? Noneconomic losses or injuries are those losses or injuries described in numbered paragraph 1 of Instruction (insert number of the applicable Instruction on damages). You should answer “0” if you determine there were none. 82 b. What is the total amount of plaintiff’s damages, if any, for economic losses (, excluding any damages for [physical impairment] [or] [disfigurement])? Economic losses are those losses described in numbered paragraph 2 of Instruction (insert number of applicable Instruction on damages). You should answer “0” if you determine there were none. (c. What is the total amount of plaintiff’s damages, if any, for [physical impairment] [or] [disfigurement]? You should answer “0” if you determine there were none.) Notes on Use See the Notes on Use to Instructions 9:26 and 9:26A, and the Special Note to Part C of this Chapter 9. Source and Authority This instruction is supported by the authorities cited in the Notes on Use to Instruction 9:26. 85 ANSWER: _______ 5. Was the plaintiff’s negligence, if any, a cause of (his) (her) own claimed (injuries) (damages) (losses)? (Yes or No) ANSWER: _______ Answer the following question 6 only if your answer to all five questions 1, 2, 3, 4, and 5 is “yes.” Otherwise, skip question 6 and go on to question 7. 6. Taking as 100 percent the combined negligence of the defendant and the plaintiff that caused the plaintiff’s (injuries) (damages) (losses), what percentage of the negligence was the defendant’s and what percentage was the plaintiff’s? ANSWER: Percentage charged to defendant, (name): _______% Percentage charged to plaintiff, (name): _______% MUST TOTAL: 100% Answer the following question 7 only if you have determined that the negligence of the plaintiff was less than that of the defendant, i.e., under 50%. 7. State your answers to the following questions relating to the plaintiff’s damages that were caused by the negligence of the defendant, whether the damages were also caused by the negligence, if any, of the plaintiff (or anyone else). a. What is the total amount of plaintiff’s damages, if any, for noneconomic losses or injuries (, excluding any damages for [physical impairment] [or] [disfigurement])? Noneconomic losses or injuries are those losses or injuries described in numbered paragraph 1 of Instruction (insert number of the applicable Instruction on damages). You should answer “0” if you determine there were none. ANSWER: _______ b. What is the total amount of plaintiff’s damages, if any, for economic losses (, excluding any damages for [physical impairment] [or] [disfigurement])? Economic losses are those losses described in numbered paragraph 2 of Instruction (insert number of applicable Instruction on damages). You should answer “0” if you determine there were none. ANSWER: _______ 86 (c. What is the total amount of plaintiff’s damages, if any, for [physical impairment] [or] [disfigurement]? You should answer “0” if you determine there were none.) ANSWER: _______ Signatures of all jurors: ______________________________ ______________________________ Foreperson ______________________________ ______________________________ ______________________________ ______________________________ Notes on Use See the Notes on Use to Instructions 9:26 and 9:26A, and the Special Note to Part C of this Chapter 9. Source and Authority This instruction is supported by the authorities cited in the Notes on Use to Instruction 9:26. 87 9:27 COMPARATIVE NEGLIGENCE OF THE PLAINTIFF — MULTIPLE DEFENDANTS — NO DESIGNATED NONPARTY INVOLVED If you find the plaintiff, (name), was damaged and that the plaintiff’s damages were caused by the negligence of the plaintiff and one or more of the defendants, (names), or that the plaintiff’s damages were caused by more than one of the defendants, then you must determine to what extent the negligent conduct of each contributed to the damages of the plaintiff, expressed as a percentage of 100 percent. If you find that the plaintiff and one or more of the defendants were negligent and that the negligence of the plaintiff was equal to or greater than the combined negligence of all the defendants, then the plaintiff will not be allowed to recover. If you find that the plaintiff and one or more of the defendants were negligent and that the negligence of any one defendant or the combined negligence of more than one of the defendants was greater than the negligence of the plaintiff, then the plaintiff will be allowed to recover as against each of the defendants found negligent. If the plaintiff is allowed to recover, the total damages you award will be reduced by the Court by the percentage of the plaintiff’s negligence. Notes on Use The Notes on Use to Instructions 9:22 and 9:23 are generally applicable to this instruction. See also Special Note to Part C of this Chapter 9. Source and Authority 1. This instruction is supported by Mountain Mobile Mix, Inc. v. Gifford, 660 P.2d 883 (Colo. 1983) (negligence of multiple defendants is to be combined and compared with negligence of plaintiff); and sections 13-21-111 and 13-21-111.5, C.R.S. 2. As to the rights of joint tortfeasors, as between themselves, see the Uniform Contribution Among Tortfeasors Act, §§ 13-50.5-101 to -106, C.R.S. See also Graber v. Westaway, 809 P.2d 1126 (Colo. App. 1991) (a party held liable for damages in prior tort litigation is not precluded from bringing action for contribution against joint tortfeasor who was not joined or designated in prior action). 90 9:27B SPECIAL VERDICT FORMS — COMPARATIVE NEGLIGENCE OF THE PLAINTIFF — MULTIPLE DEFENDANTS — NO DESIGNATED NONPARTY — FORMS A AND B Form A: IN THE _______ COURT IN AND FOR THE COUNTY OF _______, STATE OF COLORADO Civil Action No. _______ _________________________ ) Plaintiff, ) ) v. ) SPECIAL VERDICT ) FORM A _________________________ ) Defendant. ) DO NOT ANSWER THIS SPECIAL VERDICT FORM A IF YOUR FOREPERSON HAS COMPLETED SPECIAL VERDICT FORM B AND ALL JURORS HAVE SIGNED IT. We, the jury, present our Answers to Questions submitted by the Court, to which we have all agreed: 1. Did the plaintiff, (name), have (injuries) (damages) (losses)? (Yes or No) ANSWER: _______ 2. Was the defendant, (name of first defendant), negligent? (Yes or No) ANSWER: _______ 3. Was the negligence, if any, of the defendant, (name of first defendant), a cause of any of the (injuries) (damages) (losses) claimed by the plaintiff? (Yes or No) ANSWER: _______ 4. Was the defendant, (name of second defendant), negligent? (Yes or No) ANSWER: _______ 91 5. Was the negligence, if any, of the defendant, (name of second defendant), a cause of any of the (injuries) (damages) (losses) claimed by the plaintiff? (Yes or No) ANSWER: _______ We, the jury, find for the defendants and award no damages to the plaintiff, (name). Signatures of all jurors: ______________________________ ______________________________ Foreperson ______________________________ ______________________________ ______________________________ ______________________________ Form B: IN THE _______ COURT IN AND FOR THE COUNTY OF _______, STATE OF COLORADO Civil Action No. _______ _________________________ ) Plaintiff, ) ) v. ) SPECIAL VERDICT ) FORM B _________________________ ) Defendant. ) DO NOT ANSWER THIS SPECIAL VERDICT FORM B IF YOUR FOREPERSON HAS COMPLETED SPECIAL VERDICT FORM A AND ALL JURORS HAVE SIGNED IT. We, the jury, present our Answers to Questions submitted by the Court, to which we have all agreed: 1. Did the plaintiff, (name), have (injuries) (damages) (losses)? (Yes or No) ANSWER: _______ 2. Was the defendant, (name of first defendant), negligent? (Yes or No) 92 ANSWER: _______ 3. Was the negligence, if any, of the defendant, (name of first defendant), a cause of any of the (injuries) (damages) (losses) claimed by the plaintiff? (Yes or No) ANSWER: _______ 4. Was the defendant, (name of second defendant), negligent? (Yes or No) ANSWER: _______ 5. Was the negligence, if any, of the defendant, (name of second defendant), a cause of any of the (injuries) (damages) (losses) claimed by the plaintiff? (Yes or No) ANSWER: _______ If you find that the plaintiff did have (injuries) (damages) (losses) and you further find that one or more of the defendants was negligent and that such negligence was a cause of any of the plaintiff’s (injuries) (damages) (losses), then answer the following questions: 6. Was the plaintiff, (name), negligent? (Yes or No) ANSWER: _______ 7. Was the negligence, if any, of the plaintiff a cause of (his) (her) own claimed (injuries) (damages) (losses)? (Yes or No) ANSWER: _______ 8. State your answers to the following questions relating to the plaintiff’s damages that were caused by the negligence of one or more of the defendants, whether the damages were also caused by the negligence, if any, of the plaintiff (or anyone else). a. What is the total amount of the plaintiff’s damages, if any, for noneconomic losses or injuries (, excluding any damages for [physical impairment] [or] [disfigurement])? Noneconomic losses or injuries are those losses or injuries described in numbered paragraph 1 of Instruction (insert number of the applicable Instruction on damages). You should answer “0” if you determine there were none. ANSWER: $_______ b. What is the total amount of the plaintiff’s damages, if any, for economic losses (, excluding any damages for [physical impairment] [or] [disfigurement])? Economic losses are those losses described in numbered paragraph 2 of Instruction (insert 95 9. State your answers to the following questions relating to the plaintiff’s damages that were caused by the negligence of one or more of the defendants, whether the damages were also caused by the negligence, if any, of the plaintiff (or anyone else). a. What is the total amount of plaintiff’s damages, if any, for noneconomic losses or injuries (, excluding any damages for [physical impairment] [or] [disfigurement])? Noneconomic losses or injuries are those losses or injuries described in numbered paragraph 1 of Instruction (insert number of the applicable Instruction on damages). You should answer “0” if you determine there were none. b. What is the total amount of plaintiff’s damages, if any, for economic losses (, excluding any damages for [physical impairment] [or] [disfigurement])? Economic losses are those losses described in numbered paragraph 2 of Instruction (insert number of applicable Instruction on damages). You should answer “0” if you determine there were none. (c. What is the total amount of plaintiff’s damages, if any, for [physical impairment] [or] [disfigurement]? You should answer “0” if you determine there were none.) Notes on Use 1. Instruction 6:1 (personal injuries) should be used with this instruction. The Notes on Use to Instructions 4:4 (verdict form), 6:1, 9:22, and 9:23 are also applicable to this instruction. See also Special Note to Part C of this Chapter. 2. Whenever this instruction is given, the verdict forms in Instruction 9:27D must also be given. 3. Omit the parenthesized clause in numbered question 9 unless some evidence of negligent conduct on the part of a person other than the plaintiff or the defendants has been brought into the case. 4. If a claim of liability against one defendant is based only upon that defendant’s vicarious liability for the negligence of another (e.g., an employer-employee relationship), this instruction must be appropriately modified. 5. Insert any other questions that may be necessary to resolve properly any other claims of the plaintiff or affirmative defenses of any of the defendants. 6. If, in a district court case, the parties have stipulated to a verdict or finding by some stated majority pursuant to C.R.C.P. 48, this instruction should be modified accordingly. Source and Authority This instruction is supported by the authorities cited in the Notes on Use to Instruction 9:22. 96 9:27D SPECIAL VERDICT FORMS — COMPARATIVE NEGLIGENCE OF THE PLAINTIFF — MULTIPLE DEFENDANTS — NO DESIGNATED NONPARTY — FORMS A AND B (ALTERNATIVE TO INSTRUCTION 9:27B) Form A: IN THE _______ COURT IN AND FOR THE COUNTY OF _______, STATE OF COLORADO Civil Action No. _______ _________________________ ) Plaintiff, ) ) v. ) SPECIAL VERDICT ) FORM A _________________________ ) Defendant. ) DO NOT ANSWER THIS SPECIAL VERDICT FORM A IF YOUR FOREPERSON HAS COMPLETED SPECIAL VERDICT FORM B AND ALL JURORS HAVE SIGNED IT. We, the jury, present our Answers to Questions submitted by the Court, to which we have all agreed: 1. Did the plaintiff, (name), have (injuries) (damages) (losses)? (Yes or No) ANSWER: _______ 2. Was the defendant, (name of first defendant), negligent? (Yes or No) ANSWER: _______ 3. Was the negligence, if any, of the defendant, (name of first defendant), a cause of any of the (injuries) (damages) (losses) claimed by the plaintiff? (Yes or No) ANSWER: _______ 4. Was the defendant, (name of second defendant), negligent? (Yes or No) ANSWER: _______ 5. Was the negligence, if any, of the defendant, (name of second defendant), a cause of any of the (injuries) (damages) (losses) claimed by the plaintiff? (Yes or No) 97 ANSWER: _______ We, the jury, find for the defendants and award no damages to the plaintiff, (name). Signatures of all jurors: ______________________________ ______________________________ Foreperson ______________________________ ______________________________ ______________________________ ______________________________ Form B: IN THE _______ COURT IN AND FOR THE COUNTY OF _______, STATE OF COLORADO Civil Action No. _______ _________________________ ) Plaintiff, ) ) v. ) SPECIAL VERDICT ) FORM B _________________________ ) Defendant. ) DO NOT ANSWER THIS SPECIAL VERDICT FORM B IF YOUR FOREPERSON HAS COMPLETED SPECIAL VERDICT FORM A AND ALL JURORS HAVE SIGNED IT. We, the jury, present our Answers to Questions submitted by the Court, to which we have all agreed: 1. Did the plaintiff, (name), have (injuries) (damages) (losses)? (Yes or No) ANSWER: _______ 2. Was the defendant, (name of first defendant), negligent? (Yes or No) ANSWER: _______