Colorado § 13-21-406 - Comparative fault as measure of damages.

§ 13-21-406. Comparative fault as measure of damages.

(1) In any product liability action, the fault of the person suffering the harm, as well as the fault of all others who are parties to the action for causing the harm, shall be compared by the trier of fact in accordance with this section. The fault of the person suffering the harm shall not bar such person, or a party bringing an action on behalf of such a person, or his estate, or his heirs from recovering damages, but the award of damages to such person or the party bringing the action shall be diminished in proportion to the amount of causal fault attributed to the person suffering the harm. If any party is claiming damages for a decedent's wrongful death, the fault of the decedent, if any, shall be imputed to such party.

(2) Where comparative fault in any such action is an issue, the jury shall return special verdicts, or, in the absence of a jury, the court shall make special findings determining the percentage of fault attributable to each of the persons to whom some fault is attributed and determining the total amount of damages sustained by each of the claimants. The entry of judgment shall be made by the court, and no general verdict shall be returned by the jury.

(3) Repealed.

(4) The provisions of section 13-21-111 do not apply to any product liability action.

Source: L. 81: Entire section added, p. 885, § 1, effective July 1; (3) amended, p. 2030, § 42, effective July 14. L. 86: (3) repealed, p. 682, § 6, effective July 1.

ANNOTATION

Law reviews. For comment, "Multiple Defendants in Negligence Actions: Mountain Mobile Mix, Inc. v. Gifford", see 56 U. Colo. L. Rev. 303 (1985). For article, "Application of the Pro Rata Liability, Comparative Negligence and Contribution Statutes", see 23 Colo. Law. 1717 (1994). For article, "Overview of Comparative Fault", see 29 Colo. Law. 95 (July 2000).

This section does not apply to the issue of liability; it merely permits the jury to consider fault in arriving at the damage figure. Welch v. F.R. Stokes, Inc., 555 F. Supp. 1054 (D. Colo. 1983); Perlmutter v. U.S. Gypsum Co., 4 F.3d 864 (10th Cir. 1993).

If product is defective, and both the product and the injured party's conduct contributed to the injury, then the injured party's recovery must be reduced by a percentage representing the amount of fault attributable to his own conduct. States v. R.D. Werner Co., 799 P.2d 427 (Colo. App. 1990); Armentrout v. FMC Corp., 819 P.2d 522 (Colo. App. 1991).

If the injured party's misuse of the product is the sole cause of damages, and the alleged defect was not a cause thereof, then the injured party cannot recover under strict liability theory. States v. R.D. Werner Co., 799 P.2d 427 (Colo. App. 1990); Armentrout v. FMC Corp., 819 P.2d 522 (Colo. App. 1991).

The word "fault", although not defined, is not restricted to assumption of risk and/or product misuse but is to be construed as a general term encompassing a broad range of culpable behavior including, but not limited, to negligence. Huffman v. Caterpillar Tractor Co., 908 F.2d 1470 (10th Cir. 1990); Carter v. Unit Rig & Equip. Co., 908 F.2d 1483 (10th Cir. 1990); Miller v. Solaglas Cal., Inc., 870 P.2d 559 (Colo. App. 1993); Montag v. Honda Motor Co., 75 F.3d 1414 (10th Cir. 1996).

Manufacturer was not entitled to a jury instruction on comparative fault. Where instructions regarding use of paint product were contained only in marketing materials intended for architects and designers, and were not printed on the product itself, there was no evidence that the consumer of the product knew of its limitations and no jury instruction was warranted. Perlmutter v. U.S. Gypsum Co., 4 F.3d 864 (10th Cir. 1993).

Applied in Mtn. Mobile Mix, Inc. v. Gifford, 660 P.2d 883 (Colo. 1983); Nat'l Farmers Union Prop. & Cas. Co. v. Frackelton, 662 P.2d 1056 (Colo. 1983).

PART 5

PRODUCT LIABILITY ACTIONS - FIREARMS AND AMMUNITION

13-21-501 to 13-21-505. (Repealed)

Source: L. 2023: Entire part repealed, (SB 23-168), ch. 122, p. 453, § 1, effective October 1.

Editor's note: This part 5 was added in 1986. For amendments to this part 5 prior to its repeal in 2023, consult the 2022 Colorado Revised statutes and the Colorado statutory research explanatory note beginning on page vii in the front of this volume.

ANNOTATION

Law reviews. For article, "Negligent Entrustment of Guns and Other Dangerous Instrumentalities", see 47 Colo. Law. 46 (June 2018).

Applied in Phillips v. Lucky Gunner, LLC, 84 F. Supp. 3d 1216 (D. Colo. 2015).

PART 6

LIABILITY FOR ELECTRONIC COMPUTING DEVICE FAILURES ASSOCIATED WITH THE YEAR 2000 DATE CHANGE

13-21-601 to 13-21-604. (Repealed)

Source: L. 2011: Entire part repealed, (HB 11-1303), ch. 264, p. 1152, § 18, effective August 10.

Editor's note: This part 6 was added in 1999 and was not amended prior to its repeal in 2011. For the text of this part 6 prior to 2011, consult the 2010 Colorado Revised Statutes and the Colorado statutory research explanatory note beginning on page vii in the front of this volume.

PART 7

YEAR 2000 CITIZENS' PROTECTION ACT

13-21-701 to 13-21-705. (Repealed)

Editor's note: (1) This part 7 was added in 1999 and was not amended prior to its repeal in 2006. For the text of this part 7 prior to 2006, consult the 2005 Colorado Revised Statutes.

(2) Section 13-21-705 provided for the repeal of this part 7, effective December 31, 2006. (See L. 99, p. 632.)

PART 8

DRUG DEALER LIABILITY ACT