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CHAPTER 10: SELECTED CIVIL CLAIMS - Table of Contents

10.1 - Alternate Dispute Resolution10.2 - Bankruptcy10.3 - Dissolution of Marriage10.4 - Intellectual Property10.5 - Personal Injury10.6 - Professional Malpractice10.7 - Real Estate10.8 - Taxation

10.5 PERSONAL INJURY

OVERVIEW

The party that brings the claim has the burden of proving it at trial. In a personal injury case, therefore, it is the injured person who must prove that the other party was negligent, that the other party's negligence caused injuries, and that the injuries resulted in compensable damages. The person bringing the claims in an injury case must generally prove the case by a preponderance of the evidence, which means the matter is shown to be more likely than not. A preponderance of the evidence has a relative weight of anything more than 50%. The standard of proof in a criminal case, in contrast, requires the prosecutor to present evidence establishing guilt beyond a reasonable doubt.

There are three basic parts that have to be proven. First, there must be a negligent act or failure to act that is below the standard of care expected of a reasonably prudent person in the same or similar circumstances. For example, a driver fails to stop at a stop sign. Second, the negligent act must have caused harm, as where a failure to obey a stop sign results in an auto collision that injures someone. Third, the injuries caused by the negligent collision must result in compensable damages such as lost wages, out-of pocket expenses, pain and suffering and loss of enjoyment of life.

The law recognizes three major categories of damages in injury cases: economic, non-economic and physical impairment and disfigurement. Economic damages include past and future lost wages, impaired earning capacity, medical and rehabilitation and life care costs (in automobile cases only to the extent that they are not available as no-fault benefits), lost past and future home services, and certain past and future out-of-pocket expenses. Non-economic damages are losses of a human nature such as pain and suffering and loss of enjoyment of life and are recognized by the law as monetarily compensable. Physical impairment and disfigurement damages are much like non-economic damages. However, since limitations on monetary recovery for other non-economic damages do not apply to physical impairment and disfigurement damages, they are calculated separately.

The Colorado Legislature has passed laws that limit the amount of compensation available for wrongful injury and loss. These laws are referred to as damages caps. Generally, non-economic damages may not exceed $366,250 for injuries occurring after January 1, 1998. A court may allow an award in excess of this amount under certain circumstances. For medical malpractice claims against a hospital or physician, damages may not exceed $1,000,000 per patient with not more than $250,000 attributed to non-economic loss or injury. The court may allow an award in excess of this amount under certain circumstances. Non-economic damages in wrongful death cases in Colorado are capped at $341,250 for deaths occurring after January 1, 1998.

There is no strict formula for determining the amount of compensation that a claimant may be entitled to receive. Factors to be considered include economic loss in the form of lost earnings or lost earning capacity, out of pocket expenses, pain, suffering, loss of enjoyment of life, disfigurement, inability to engage in normal social and recreational activities, loss of time, inconvenience and other items. The law envisions that the injured party will receive an amount of compensation that is fair and just under the particular circumstances of the case. Benefits recoverable under Colorado's no-fault laws, such as medical and rehabilitation expenses, are not recoverable in a bodily injury claim.

There are three ways in which legal matters are resolved: settlement, trial, or appeal. Settlement can occur before or after a lawsuit has been filed with the court, and sometimes just before or even during trial. Although the parties to a legal dispute may be worlds apart on the issues, there is often a natural tendency to look for common ground and seek a fair compromise. The very nature of compromise involves each side giving up things it would rather not and accepting things it might not otherwise consider appropriate. Because litigation (a formal lawsuit) is usually expensive, difficult and unpredictable, settlements are a very common way of resolving cases. Not all cases can be settled by compromise, however, and some must inevitably proceed to trial. Lawsuits are generally filed when negotiations fail.

The culmination of formal litigation is the trial. Depending upon the case, a case may be decided by a judge, a jury, or one or more arbitrators. Evidence is presented by each party, primarily in the form of testimony and physical evidence. In civil litigation, the party that brought the lawsuit generally has the burden of proving the asserted claims by a preponderance of the evidence. An award of money damages by a judge or jury is a verdict, although sometimes erroneously referred to as a settlement.

The conclusion of a case may be delayed if the determination of the trial court is appealed. An appeal is most commonly filed by the party that lost at trial. An appeals court reviews the record that was preserved during the trial, the judge's legal rulings, and other matters to determine whether the appealing party has correctly claimed that there were sufficient errors in the course of the case to have prevented a fair trial. If the appellate court overturns the decision of the trial court, the case may have to be tried again.

AUTOMOBILE INJURY CLAIMS

Where a negligent driver causes injury to another driver, passenger, pedestrian or cyclist, the injured person may be entitled to compensation from the negligent driver and his or her insurer. Such claims are often referred to as "liability" or "bodily injury" claims. These claims are generally made against the other driver and paid by the other driver's insurer. Colorado law requires minimum liability coverage of $25,000 per person, $50,000 per accident and $15,000 per property loss on every vehicle. Many automobile owners pay higher premiums and have higher liability limits.

Certain limitations are placed upon the injured person's ability to bring an injury claim against the driver who is at fault. One of the limitations is that one cannot bring a claim against the driver who was at fault until the injured party's medical bills have exceeded $2,500 or he or she has suffered a permanent disability or permanent disfigurement. The law generally requires that a lawsuit arising out of an automobile accident injury be filed before the three year anniversary of the injury.

WRONGFUL DEATH

When a person dies due to the negligence of another, Colorado law allows certain survivors to maintain an action for wrongful death against the party or parties at fault. A wrongful death claim seeks recovery of economic and non-economic losses that the loved ones and dependents of the deceased have incurred as a result of the death. A wrongful death action must be brought within two years of the date on which the claim accrues. The starting date for this time limit is the date upon which the negligently-caused injury that results in death becomes known or could have been discovered by exercising reasonable care. In no case does the claim accrue later than the date of death.

Economic damages in such actions include burial expenses, and loss of earnings and benefits from the deceased person that the survivors would have received and enjoyed over the course of the deceased person's work life. Earnings that the deceased would have personally consumed are not recoverable.

Non-economic damages in wrongful death cases are capped at $341,250 for deaths occurring after January 1, 1998. Alternatively, the law makes available a "solatium" whereby a claiming survivor who does not wish to undertake the task of proving non-economic losses may, after proving that the death was wrongful under the law, automatically receive $68,250 as total compensation for non-economic losses. Persons receiving this solatium will not be allowed to claim any additional amount of compensation for non-economic losses.

DEFECTIVE PRODUCTS

Generally, there are two types of defective products: products that are improperly designed and products which are improperly manufactured. Damages caused by both types of defective products are compensable in Colorado. Examples of potentially defective and/or dangerous products include automobiles, medical devices, household appliances, electronic devices, machinery and pharmaceutical goods.

Claims for defective products must be brought within two years. There are complicated rules relating to when the statute of limitations begins to run, but generally the two year period begins when a person knows or reasonably should have known that the product was defective and that it caused injury or damages.

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