Most residents of Colorado are aware that a person who is negligent may owe damages to any person injured by the negligent act or omission. But what happens if both parties were negligent? Prior to World War II, most states, including Colorado, applied the rule of contributory negligence: if the plaintiff was at fault, even the degree of fault was minimal, the plaintiff could not recover from the defendant. Colorado since changed its laws concerning negligence to incorporate the concept of “comparative negligence.”
The rule of comparative fault
Under the rule of comparative fault, the jury is instructed to allocate fault among all parties such that the total amount of all allocations is 100%. The statute provides that in cases where more than one party is found to be at fault, the party having the lowest degree of fault can collect from the other parties, but the recovery will be reduced in proportion to the amount of fault allocated to that party.
Imagine a two-car accident in which one driver is found to be 60% at fault and the other driver is found to be only 40% at fault. The second driver can recover from the first driver, but the amount of damages as found by the jury will be reduced by 40%. The other driver cannot recover anything because his proportion of negligence exceeds that of the other party to the accident. In multiple party cases, the jury determines fault and damages. The judge will then determine how much is owed by the parties with the higher degrees of fault to the parties with the lesser degree of fault.
Comparative fault provides a much fairer method of allocating fault and damages. Nevertheless, an experienced accident attorney may be required to advise a party about how the allocations of fault and damages required by the statute will play out in real life.