2021 Colorado Code
Title 13 - Courts and Court Procedure
Article 21 - Damages
Part 4 - Product Liability Actions - General Provisions
§ 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 Repealed.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.

History. 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 L. 86: (3) repealed, p. 682, § 6, effective July 1.

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).