When a plaintiff asserting a claim for negligence is also negligent themselves, the law refers to this as “contributory negligence” or “comparative negligence.”

What is contributory negligence? “Contributory negligence” is defined as a “plaintiff’s own negligence that played a part in causing the plaintiff’s injury and that is significant enough (in a few jurisdictions) to bar the plaintiff from recovering damages.”

What is comparative negligence? Comparative negligence is defined as a “plaintiff’s own negligence that proportionally reduces the damages recoverable from a defendant.”

Many cases involve some level of contributory or comparitive negligence as it is common for defendants to argue that the plaintiff brought the injuries upon themselves or acted in a way that made the harm more likely.

What is “Reasonable Care?”

Colorado’s pattern jury instructions define “reasonable care” as “that degree of care which a reasonably careful person would use under the same or similar circumstances.” Note that it is not defined as “any” person, it is defined as a “reasonably careful” person. This is often the most difficult and contentious issue that the jury will decide at trial: whether the defendant acted “reasonably” and with “reasonable care.”

What About Foreseeability? Is it a Requirement?

A defendant is only liable for negligence if their actions resulted in a “foreseeable” injury. Under Colorado law, an injury is foreseeable “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.” It is not the precise injury that the plaintiff suffered that needs to be foreseeable, it is enough that an injury is foreseeable. In law school, students often study a case called Palsgraf v. Long Island Railroad Co., which is a case out of New York that was the first to thoroughly analyze what sorts of things are foreseeable or unforeseeable. The same principles discussed in this case are still used today in Colorado. For example, the Colorado Court of Appeals recently cited Palsgraf in a 2015 decision, noting that it is “the seminal tort case”:

The seminal tort case of Palsgraf v. Long Island Railroad Company, 248 N.Y. 339, 162 N.E. 99, 101 (1928), similarly holds that liability for negligence is limited to reasonably foreseeable injuries: “[i]f the harm was not willful, [the plaintiff] must show that the act as to him [or her] had possibilities of danger so many and apparent as to entitle him [or her] to be protected against the doing of it.” Because in Palsgraf “[n]othing in the situation gave notice” that the actor’s conduct “had in it the potency of peril to persons” in the plaintiff’s position, the plaintiff could not recover for injuries she suffered that had resulted from the chain of events initiated by the actor’s conduct. Id. at 99.

Boulders at Escalante LLC v. Otten Johnson Robinson Neff & Ragonetti PC, 2015 COA 85, ¶ 52.

Damages Arising from Negligence Claims

A plaintiff alleging a negligence claim is entitled to “compensatory damages.” Compensatory damages include the amount of money that it takes to make the plaintiff “whole” – i.e. to remedy or fix the damage caused by the defendant’s conduct. Sometimes calculating what it takes to correct a wrong is easy and other times it is an impossibly difficult task. However, Colorado juries are specifically instructed that “difficulty or uncertainty in determining the precise amount of any damages does not prevent you from deciding an amount” and that the jury “should use its best judgment based on the evidence.” See, e.g., Colo. Jury Instr., Civil 5:6. Plaintiffs may also be entitled to other types of damages such as punitive damages; however, those sorts of damages are rarer.

What is the Statute of Limitations for Negligence Claims?

The statute of limitations for negligence claims in Colorado is two yearsSee C.R.S. § 13-80-102(1); see also Morrison v. Goff91 P.3d 1050, 1053 (Colo. 2004) (“In Colorado, the statute of limitations bars negligence actions brought more than two years after the action accrues.”). “To determine when an action accrues, the General Assembly has adopted a form of the ‘discovery rule,’ which states that an action accrues ‘on the date both the injury and its cause are known or should have been known by the exercise of reasonable diligence.’” Goff, 91 P.3d at 1053 (emphasis added); see also C.R.S. § 13-80-108(1).