In most personal injury claims in Colorado, the claimant, or plaintiff, must typically show fault on the part of the defendant. On the other hand, the defendant can use any fault of the plaintiff to defend against personal injury claims. This defense in many states is known as comparative fault or comparative negligence.
At Hagen Nares PLLC, our personal injury attorneys in Colorado understand comparative fault and how to proactively counter this type of defense. It is critical to address it because if the defendant successfully uses it, it could mean the value of any compensation you recover is reduced or you could be denied compensation altogether. To help make sure this does not happen and to learn more about your legal options, contact us at 720-772-8513 today to schedule a Free Consultation.
What Constitutes Comparative Fault in Colorado?
Colorado is a modified comparative fault state. Comparative fault, or comparative negligence, is a partial defense available in personal injury cases. Where both parties are at fault in an accident, comparative negligence allocates responsibility (usually on a percentage basis) and then limits the damages the plaintiff can recover accordingly. However, if the plaintiff is deemed to be 50% or more at fault, the modified comparative fault rule bars a plaintiff from recovering damages altogether.
An example is a jaywalking pedestrian struck by a driver looking at their mobile phone. In this situation, the court or a jury could find that both parties' negligence contributed to the accident – 20% on the part of the pedestrian and 80% on the part of the driver. If the pedestrian is awarded $50,000 in damages, their damages recovered are reduced by 20% to $40,000. In the same example, if the court or a jury found the plaintiff to be 50% or more at fault, the plaintiff would recover $0.
Most states use comparative fault in personal injury cases, rather than contributory negligence. Where contributory negligence applies, a plaintiff is barred from recovering any damages if they contributed to the accident, even if that contribution is very minor.
States apply comparative negligence in different ways by using either the pure comparative fault, modified comparative fault, or slight/gross rule.
Pure Comparative Fault
In states where the pure comparative fault rule applies, a plaintiff receives some damages, even if the accident was mainly their fault. So, if an accident was 99% the plaintiff's fault, they could still recover 1% of the damages they would otherwise be entitled to.
Modified Comparative Fault
In some states, the rule applies to cases where the defendant is 51% or more responsible. This slightly different approach allows a plaintiff to recover damages where the parties are equally at fault.
Slight/Gross Negligence
In states applying the slight/gross rule, the court or jury will only consider the parties' degrees of fault if the defendant's negligence is “gross” and the plaintiff's is “slight”.
To ensure you are applying the correct law in your particular case, it is best to consult with an experienced personal injury attorney.
What Types of Personal Injury Cases in Colorado Involve Comparative Negligence?
A defendant may raise comparative negligence in the context of any of the following:
- Car, truck, motorcycle, or other auto accidents including those involving pedestrians and bicyclists
- Medical malpractice, e.g., where a patient doesn't follow a doctor's post-operative instructions
- Dog bites, e.g., where a plaintiff provoked a dog
- Wrongful death, including workplace accidents
- Product liability, e.g., where the plaintiff used the product in a way not intended by the manufacturer
- Premises liability, including slip and fall accidents
How comparative negligence applies to a case depends on the jurisdiction and specific circumstances.
How Can a Plaintiff Use Comparative Negligence to Benefit Their Case?
Comparative negligence allows a plaintiff to claim some damages, even where they contributed to the accident and their subsequent injuries in some way. This may be useful in situations where a plaintiff failed to exercise reasonable care or otherwise behaved negligently, but was not the sole cause of the incident.
How Can a Defendant Use Comparative Negligence to Defend against a Personal Injury Claim?
A defendant can use comparative negligence to limit their liability for damages in a personal injury case. In some jurisdictions, where the 50% or 51% rule applies, comparative negligence may bar a plaintiff from claiming any damages against a defendant.
Contact a Personal Injury Lawyer in Colorado Today
The effect that comparative fault (if any) may have on your personal injury case depends on the specific facts and circumstances of your case. The key to getting the compensation you deserve for any and all of your injuries caused in whole or part by another person or entity is making sure you strategically address the comparative negligence rule of your jurisdiction.
At Hagen Nares PLLC, our personal injury attorneys in Colorado know the law and how to make it work for you. To get a good understanding of how comparative negligence may impact your personal injury case, contact us either by using the online form or calling us at 720-772-8513 to schedule a Free Consultation. We will review your case and identify your next steps to recover just and fair compensation for the harm done to you.