Colorado § 13-25-127 - Civil actions - degree of proof required.

§ 13-25-127. Civil actions - degree of proof required.

(1) Any provision of the law to the contrary notwithstanding and except as provided in subsection (2) of this section, the burden of proof in any civil action shall be by a preponderance of the evidence. The provisions of this subsection (1) shall not apply to the burden of proof required in determining the validity of any legislative enactment.

(2) Exemplary damages against the party against whom the claim is asserted shall only be awarded in a civil action when the party asserting the claim proves beyond a reasonable doubt the commission of a wrong under the circumstances set forth in section 13-21-102. Nothing in this subsection (2) shall be construed as preventing a party asserting the claim from being awarded money damages or other appropriate relief, other than exemplary damages, if he sustains the burden of proof by a preponderance of the evidence.

(3) (Deleted by amendment, L. 95, p. 15, § 5, effective March 9, 1995.)

(4) This section became effective July 1, 1972, and applies only to civil actions which accrue on or after such date.

Source: L. 71: p. 579, § 1. C.R.S. 1963: § 52-1-28. L. 72: pp. 317, 318, §§ 1, 2. L. 95: (1) and (3) amended, p. 15, § 5, effective March 9.

ANNOTATION

Law reviews. For article, "Inverse Condemnation — A Viable Alternative", see 51 Den. L. J. 529 (1974). For article, "Burdens of Proof in Colorado Civil Actions", see 23 Colo. Law. 83 (1994).

This section prevails over conflicting appellate case law. McCallum Family L.L.C. v. Winger, 221 P.3d 69 (Colo. App. 2009).

Burden of proof in quiet title action to obtain title by adverse possession is preponderance of evidence, as required by this section, since such action does not constitute a taking, nor does it raise fundamental constitutional concerns. Gerner v. Sullivan, 768 P.2d 701 (Colo. 1989) (overruling Raftopoulos v. Monger, 656 P.2d 1308 (Colo. 1983)).

Burden of party asserting equitable grounds. The party attempting to set aside a transaction on equitable grounds should only be required to prove the truth of his contentions by a preponderance of the evidence. Page v. Clark, 197 Colo. 306, 592 P.2d 792 (1979).

Burden in proceedings to terminate parental rights. In the absence of a specific directive from the general assembly to use the "clear and convincing evidence" standard as the burden of proof in proceedings to terminate parental rights, courts are compelled to use the "preponderance of evidence" standard of civil actions. People in Interest of B.J.D., 626 P.2d 727 (Colo. App. 1981).

Burden of proof does not shift. The burden of proof resting upon the plaintiff to prove the elements of his case, as determined by the pleadings, by a preponderance of the evidence, does not shift during the course of trial, although it may be aided by a presumption or a shift of the burden of going forward with the evidence once the plaintiff has established a prima facie case. Exch. Nat'l Bank v. Sparkman, 191 Colo. 534, 554 P.2d 1090 (1976); W. Distributing Co. v. Diodosio, 841 P.2d 1053 (Colo. 1992).

Plaintiff failed to prove trust invalid as attempted testamentary disposition. Exch. Nat'l Bank v. Sparkman, 191 Colo. 534, 554 P.2d 1090 (1976).

Fraud must be shown by a preponderance of the evidence. Caldwell v. Armstrong, 642 P.2d 47 (Colo. App. 1981).

Fraud may be inferred from circumstantial evidence. Direct evidence of reliance, one of the elements of fraud, is not required. Kopeikin v. Merchant Mortg. & Trust Corp., 679 P.2d 599 (Colo. 1984).

Where preponderance acceptable burden in federal law controversy. Although the right to mine claims located on federal land is derived from federal law, there is no provision made as to the quantum of proof necessary to prevail in a dispute over title to those claims. Thus, the application of state law imposing a preponderance of the evidence regarding burden of proof is not in conflict with the national policy for mining claims. Silver Core Mining Co. v. DeBell, 42 Colo. App. 169, 595 P.2d 269 (1979).

Section does not apply to public official/public figure defamation cases. Manuel v. Fort Collins Newspapers, Inc., 42 Colo. App. 324, 599 P.2d 931 (1979), rev'd on other grounds, 631 P.2d 1114 (Colo. 1981).

Clear and convincing standard of proof applies to cases involving prescriptive easements. Auslaender v. MacMillan, 696 P.2d 836 (Colo. App. 1984).

Preponderance standard applies in actions to pierce the corporate veil. McCallum Family L.L.C. v. Winger, 221 P.3d 69 (Colo. App. 2009); Sedgwick Props. Dev. Corp. v. Hinds, 2019 COA 102, 456 P.3d 64.

Section does not apply to Title VII and Civil Rights Act of 1991 cases. The reasonable doubt standard set forth in this section is inconsistent with the remedial policies underlying Title VII and the Civil Rights Act of 1991. Karnes v. SCI Colo. Funeral Servs., Inc., 162 F.3d 1077 (10th Cir. 1998).

Evidence sufficient to show malice beyond a reasonable doubt. Vogel v. Carolina Intern., Inc., 711 P.2d 708 (Colo. App. 1985).

For section's application to heirship, see In re Estate of Etchart v. Nelson, 179 Colo. 142, 500 P.2d 363 (1972).

Burden of proof in forfeiture action under Colorado public nuisance statute rests on the state and must be proven by a preponderance of the evidence. People v. Milton, 732 P.2d 1199 (Colo. 1987).

Claim of promissory estoppel must be established by a preponderance of the evidence. Nicol v. Nelson, 776 P.2d 1144 (Colo. App. 1989).

Preponderance of the evidence standard provided for in subsection (1) applies to actions for adverse possession. Nicol v. Nelson, 776 P.2d 1144 (Colo. App. 1989).

Burden of proof in case raising inverse condemnation claim is by a preponderance of the evidence. Because it could not be determined from trial court's order which standard trial court applied, case remanded for new findings using a preponderance of the evidence standard. Animas Valley Sand & Gravel, Inc. v. Bd. of County Comm'rs, 8 P.3d 522 (Colo. App. 2000), rev'd on other grounds, 38 P.3d 59 (Colo. 2001).

Trial court is in best position to weigh credibility where evidence on issue of fraud consisted of testimony of plaintiff and defendant and appellate court need not engage in factual determination. Kinsey v. Preeson, 746 P.2d 542 (Colo. 1987).

Trial court abused its discretion when similarly situated physicians were awarded punitive damages on arbitrary and inconsistent basis. Ballow v. PHICO Ins. Co., 878 P.2d 672 (Colo. 1994).

Proof by clear and convincing evidence is required in guardianship proceedings because of the possibility of being deprived of basic liberties. Sabrosky v. Denver DDS, 781 P.2d 106 (Colo. App. 1989).

This section is inapplicable to a motion to set aside a default judgment. A motion to set aside a default judgment is not a "civil action" but is instead a simple procedural motion taking place within the context of a substantive "civil action". Borer v. Lewis, 91 P.3d 375 (Colo. 2004).

In enacting this section, the general assembly did not legislatively override the "clear and convincing" burden of proof that has been applied to proceedings to set aside default judgments. To decide otherwise would require the court to find the statute unconstitutional as an impermissible infringement on the judiciary's authority to promulgate procedural rules. Borer v. Lewis, 91 P.3d 375 (Colo. 2004).

Higher standard of clear and convincing evidence is required for setting aside of default judgment. Salle v. Howe, 757 P.2d 154 (Colo. App. 1988). (Holding modified in White Front Auto Sales, Inc. v. Mygatt, 810 P.2d 234 (Colo. App. 1990).)

Taxpayer's burden is to prove by a preponderance of the evidence, not by clear and convincing evidence, that the assessment is incorrect. C.A. Staack v. Bd. of County Com'rs., 802 P.2d 1191 (Colo. App. 1990).

Preponderance of evidence test should have been applied in determination of motion to set aside default judgment since it is a civil action under subsection (1). White Front Auto Sales, Inc. v. Mygatt, 810 P.2d 234 (Colo. App. 1990).

A party who claims a prescriptive easement must prove by a preponderance of the evidence continuous, open, and adverse use of the easement for the statutory period of 18 years. Proper v. Greager, 827 P.2d 591 (Colo. App. 1992).

Applied in Cline v. City of Boulder, 35 Colo. App. 349, 532 P.2d 770 (1975); Page v. Clark, 40 Colo. App. 24, 572 P.2d 1214 (1977); Sherman Agency v. Carey, 195 Colo. 277, 577 P.2d 759 (1978); Roberts v. Bucher, 41 Colo. App. 138, 584 P.2d 97 (1978); Frick v. Abell, 198 Colo. 508, 602 P.2d 852 (1979); Malandris v. Merrill Lynch, Pierce, Fenner & Smith Inc., 703 F.2d 1152 (10th Cir. 1981); Diversified Mgt., Inc. v. Denver Post, Inc., 653 P.2d 1103 (Colo. 1982); Littlehorn v. Stratford, 653 P.2d 1139 (Colo. 1982); Honeywell Info. Sys. v. Bd. of Assmt. Appeals, 654 P.2d 337 (Colo. App. 1982); King v. Horizon Corp., 701 F.2d 1313 (10th Cir. 1983); Ft. Logan Mental Health Ctr. v. Indus. Comm'n, 665 P.2d 139 (Colo. App. 1983); Palmer v. A.H. Robins Co., Inc., 684 P.2d 187 (Colo. 1984); Hawkinson v. A.H. Robins Co., Inc., 595 F. Supp. 1290 (D. Colo. 1984); Basnett v. Vista Vill. Mobile Home Park, 699 P.2d 1343 (Colo. App. 1984); Florey v. District Court, 713 P.2d 840 (Colo. 1985); Tri-Aspen Constr. Co. v. Johnson, 714 P.2d 484 (Colo. 1986); Juarez v. United Farm Tools, Inc., 798 F.2d 1341 (10th Cir. 1986); Cty. Bd. of Equal. v. Bd. of Assess. App., 743 P.2d 444 (Colo. App. 1987); W. Distrib. Co. v. Diodosio, 841 P.2d 1053 (Colo. 1992).