Mountain Law: Torts are a piece of cake |

Mountain Law: Torts are a piece of cake


Attorneys use the term “tort” to refer to civil claims other than claims for breach of contract. A significant category of torts involves claims made by plaintiffs to recover damages against defendants for negligence. Such claims arise in many contexts, including claims relating to car accidents, medical malpractice, environmental hazards, “slip and fall” and construction defects. The legal area of torts still recognizes many traditional principles, but there have also been many “tort reforms” that changed the traditional principles by statute. This article provides an introduction to negligent torts under Colorado law.

The first consideration in every negligent torts case is the “duty of care” that should be exercised in the situation. For example, the duty of care of a person driving a car is essentially to watch the road and travel at a reasonable rate of speed for the conditions. A person texting on her phone while traveling too fast for the conditions could be negligent for acting below the applicable duty of care. It is usually up to a jury to decide whether the defendant in a given case was negligent under the circumstances. A person who is violating a rule or regulation at the time of an incident (e.g. by traveling faster than the posted speed limit) may be “negligent per se,” which means they are presumed to be negligent.

A negligent person is not liable for a plaintiff’s damages unless the negligent person caused them. For example, if a doctor negligently leaves a sponge inside of a surgery patient, and the surgery patient is then burned in a freak hospital fire, the doctor is not liable for the patient’s burns because he did not cause them. However, the doctor would be liable for the patient’s injuries, if any, relating to the sponge.

In the case of multiple negligent persons contributing to an accident, the jury is asked to assign a percentage of fault to each person, and each person’s liability is then equal to their percentage of fault multiplied by the total amount of the damages. For example, if the jury determines that an architect is 50 percent liable for a construction accident, the engineer is 10 percent liable, the builder is 25 percent liable, and the manufacturer of materials is 15 percent liable, and if the total damages is $100,000, then the architect would be liable for $50,000 of the plaintiff’s damages, the engineer for $10,000, the builder for $25,000 and the manufacturer for $15,000. The injured plaintiff would be obliged to name all of these potentially liable defendants in his lawsuit in order to hopefully recover 100 percent of the damages. If the plaintiff fails to name a potential defendant in the lawsuit, the defendants who are named can try to reduce their liability by convincing the jury that a “non-party at fault” should be assigned some percentage of the liability.

In a case where the plaintiff is himself negligent, such as if a car accident occurs because both the plaintiff and the defendant were driving negligently, the jury may assign a degree of fault to the plaintiff as well as the defendant. For example, the jury could find the plaintiff 40 percent liable and the defendant 60 percent liable; the plaintiff could then recover 60 percent of his damages from the defendant. Colorado law only permits a plaintiff to recover if the plaintiff’s fault is less than the fault of the defendant(s). This means that a plaintiff that is found 50 percent (or more) liable cannot recover anything, but a plaintiff that is found 49.99 percent (or less) liable can recover up to 49.99 percent of his damages.

Special interest groups are always clamoring for new tort reforms that benefit them … and there are many special statutes that apply to tort claims made by or against certain groups that create procedural hurdles or cap damages. The tort reform process is continually evolving as power shifts in the legislatures and we continue a societal dialogue about how easy (or hard) it should be to recover damages for negligent torts in different circumstances.

Noah Klug is principal of The Klug Law Firm, LLC, a general law practice in Summit County emphasizing real estate, business law and litigation. He may be reached at (970)468-4953 or

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