First Regular Session

Sixty-first General Assembly

LLS NO. 97­0354.01 JGG HOUSE BILL 97­1120

STATE OF COLORADO

BY REPRESENTATIVE George;

also SENATOR Mutzebaugh.

JUDICIARY

A BILL FOR AN ACT

CONCERNING THE APPORTIONMENT OF LIABILITY ATTRIBUTED TO IMMUNE DESIGNATED NONPARTIES IN CIVIL LIABILITY CASES.

Bill Summary

(Note: This summary applies to this bill as introduced and does not necessarily reflect any amendments which may be subsequently adopted.)

Provides for the apportionment of negligence or fault attributed to designated nonparties who are legally entitled to plead the affirmative defense of statutory or common law immunity. In cases in which the percentage of negligence or fault attributed to a party defendant exceeds that attributed to an immune nonparty, provides for the liability of the immune nonparty to be divided between the defendant and the claimant in proportion to the percentage of negligence or fault attributed to each.

In cases involving more than one party defendant and in which there is only one defendant whose percentage of negligence or fault exceeds that of an immune nonparty, the assignment of fault shall be the same as cases in which there is only one party defendant. In cases involving two or more party defendants whose negligence or fault exceeds that attributed to the immune nonparty, provides for the nonparty's liability to be attributed to the party defendants and the claimant in proportion to each party defendant's and the claimant's relative percentage of negligence or fault. Provides that a claimant's right to recover under the comparative negligence statute shall not be affected as a result of recalculating the percentages of negligence or fault.

Be it enacted by the General Assembly of the State of Colorado:

SECTION 1.  13­21­111.5 (2), Colorado Revised Statutes, 1987 Repl. Vol., is amended to read:

13­21­111.5.  Civil liability cases ­ pro rata liability of defendants. (2) (a)  The jury shall return a special verdict, or, in the absence of a jury, the court shall make special findings determining the percentage of negligence or fault attributable to each of the parties and any persons not parties to the action of whom notice has been given pursuant to paragraph (b) of subsection (3) of this section to whom some negligence or fault is found ATTRIBUTED and determining the total amount of damages sustained by each claimant. The entry of judgment shall be made by the court based on the special findings, and no general verdict shall be returned by the jury.

(b) (I)  IF THE COURT DETERMINES AS A MATTER OF LAW THAT THE CLAIMANT COULD NOT OBTAIN A JUDGMENT AGAINST A DESIGNATED NONPARTY, BECAUSE THE NONPARTY IS LEGALLY ENTITLED TO PLEAD THE AFFIRMATIVE DEFENSE OF STATUTORY OR COMMON LAW IMMUNITY AS TO A PARTICULAR CLAIM FOR RELIEF, AND IF THE PERCENTAGE OF NEGLIGENCE OR FAULT ATTRIBUTED TO THE DEFENDANT EXCEEDS THAT ATTRIBUTED TO THE IMMUNE NONPARTY, THEN THE AMOUNT OF SUCH NONPARTY'S NEGLIGENCE OR FAULT SHALL BE DIVIDED AND ASSIGNED TO THE CLAIMANT AND THE DEFENDANT PROPORTIONATELY, COMPUTED ON THE RELATIVE PERCENTAGE OF NEGLIGENCE OR FAULT OF EACH, AND JUDGMENT SHALL BE ENTERED IN ACCORDANCE THEREWITH.

(II)  IF THERE IS MORE THAN ONE PARTY DEFENDANT, THE PERCENTAGE OF NEGLIGENCE OR FAULT ATTRIBUTED TO EACH DEFENDANT SHALL BE COMPARED TO THE PERCENTAGE OF NEGLIGENCE OR FAULT ATTRIBUTED TO EACH IMMUNE NONPARTY. IN THE EVENT THAT THERE IS ONLY ONE DEFENDANT WHOSE PERCENTAGE OF NEGLIGENCE OR FAULT EXCEEDS THE PERCENTAGE OF NEGLIGENCE OR FAULT ATTRIBUTED TO AN IMMUNE NONPARTY, THE ASSIGNMENT OF NEGLIGENCE OR FAULT SHALL BE SUBJECT TO THE PROVISIONS OF SUBPARAGRAPH (I) OF THIS PARAGRAPH (b). IN THE EVENT THAT THERE ARE TWO OR MORE PARTY DEFENDANTS WHOSE PERCENTAGE OF NEGLIGENCE OR FAULT INDIVIDUALLY EXCEEDS THE PERCENTAGE OF NEGLIGENCE OR FAULT ATTRIBUTED TO AN IMMUNE NONPARTY, THE AMOUNT OF NEGLIGENCE OR FAULT ATTRIBUTED TO SUCH NONPARTY SHALL BE DIVIDED AND ASSIGNED TO THE CLAIMANT AND ALL SUCH PARTY DEFENDANTS PROPORTIONATELY, COMPUTED ON THE RELATIVE PERCENTAGE OF NEGLIGENCE OR FAULT OF THE CLAIMANT AND ALL SUCH PARTY DEFENDANTS. THE COMPARISON OF NEGLIGENCE OR FAULT SHALL BE MADE SEPARATELY FOR EACH SUCH IMMUNE NONPARTY.

(III)  IN NEGLIGENCE CASES THE RECALCULATION OF THE PERCENTAGES OF NEGLIGENCE OR FAULT MADE PURSUANT TO THE PROVISIONS OF THIS PARAGRAPH (b) SHALL NOT AFFECT THE DETERMINATION OF CLAIMANT'S RECOVERY UNDER THE PROVISIONS OF SECTION 13­21­111 (3).

SECTION 2.  Effective date ­ applicability. This act shall take effect July 1, 1997, and shall apply to causes of action accruing on or after said date.

SECTION 3.  Safety clause. The general assembly hereby finds, determines, and declares that this act is necessary for the immediate preservation of the public peace, health, and safety.