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Chapter 6 Damages for Injuries to Persons Or Property

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Chapter 6 Damages for Injuries to Persons Or Property CHAPTER 6 DAMAGES FOR INJURIES TO PERSONS OR PROPERTY Introductory Note A. PERSONAL INJURIES 6:1 Personal Injuries — Adults 6:1A Special Interrogatories to the Jury to Determine the Amount of Damages Awarded for Economic and Noneconomic Losses or Injuries and for Physical Impairment or Disfigurement ― Mechanics for Submitting 6:1B Answers to Special Interrogatories to the Jury Set Forth in Instruction 6:1A 6:2 Personal Injuries — Minor Child 6:3 Personal Injuries — Minor Child — Measure of Parents’ Damages 6:4 Personal Injuries — Minor Child — Loss of Earnings — Distinction Between Parents’ and Child’s Claims 6:5 Loss of Consortium — Elements of Liability 6:6 Loss of Consortium — Defined — Damages 6:7 Personal Injuries — Non-Reduction of Damages — “Thin Skull” Doctrine 6:8 Aggravation of Preexisting Condition 6:9 Damages Caused by Unrelated Second Event 6:10 Effect Of Income Tax and Other Economic Factors on Award of Damages B. DAMAGES FOR LOSS OR DESTRUCTION OF PERSONAL PROPERTY 6:11 Personal Property — Difference in Market Value 6:12 Personal Property — Cost of Repairs 6:13 Personal Property — Loss of Use C. MULTIPLE RECOVERY 6:14 Multiple Recovery Prohibited (When Plaintiff Suing on Alternative But Duplicative Claims for Relief) Introductory Note Measure of Damages 1. The instructions in Part A of this chapter are intended for use primarily in negligence cases in which the limitations on damages for “noneconomic loss or injury” set forth in section 13-21-102.5, C.R.S., apply. For other tort claims, special damage instructions have been prepared that also apply to cases where the statutory limitations on noneconomic losses or injuries apply. For these other damage instructions, see the Detailed Table of Contents to this publication. 2. Part B of this chapter contains instructions on the proper measure of damages for the loss or destruction of personal property. For the proper measure of damages in cases involving physical damage to real property, see Instruction 18:4. See also the Source and Authority to Instruction 18:4 for the proper measure of damages for (1) the destruction of improvements to real property, (2) damages to crops, (3) damages to trees and timber, and (4) the appropriation of gravel, ore, coal, oil, or other minerals. 3. Instructions on the proper measure of damages in actions for breach of contract are set forth in Part E of Chapter 30. Also, for damages for wrongful discharge from employment, see Instructions 31:7 (breach of contract) and 31:15 (tort). Comparative Negligence and Pro Rata Liability 4. In negligence cases in which either the comparative negligence statute, § 13-21-111, C.R.S., or the pro rata liability statute, § 13-21-111.5, C.R.S., or both, apply, the Instructions and special verdict forms in Part C of Chapter 9 should be used in conjunction with Instruction 6:1, but not with the special verdict forms in Instructions 6:1A and 6:1B in Part A of this Chapter. In negligence cases in which neither the comparative negligence statute, § 13-21-111, nor the pro rata liability statute, § 13-21-111.5, applies, the Instructions in Chapter 9 should be used in conjunction with Instructions 6:1, 6:1A, and 6:1B. 5. As an alternative in such cases, Instruction 4:20, the model unified verdict form, may be used in conjunction with Instruction 6:1, 6:1A, and 6:1B instead of the special verdict forms in Part C of Chapter 9. Instructions 6:1, 6:1A, and 6:1B should also be used in conjunction with product liability claims in which neither the comparative negligence statute, § 13-21-111, C.R.S., nor the pro rata liability statute, § 13-21-111.5, C.R.S., applies. Comparative Fault and Pro Rata Liability 6. In product liability cases in which either the comparative fault statute, § 13-21-406, C.R.S., or the pro rata liability statute, § 13-21-111.5, C.R.S., or both, apply, the instructions and special verdict forms in Part E of Chapter 14 should be used in conjunction with Instructions 6:1, 6:1A, and 6:1B in Part A of this chapter. 7. Again, as an alternative, Instruction 4:20, the model unified verdict form, may be used instead of the special verdict forms in Part E of Chapter 14. 2 Pro Rata Liability in Other Tort Actions 8. In other tort actions resulting in death or injury to persons or property in which the pro rata liability statute applies, Instruction 4:20, the model unified verdict form, should be used in conjunction with the applicable special damage instruction for the specific kind of tortious conduct on which the claim is based rather than Instructions 6:1, 6:1A, and 6:1B. Tort Actions Against Health Professionals 9. In tort actions against health care professionals or institutions subject to the limitations on damages provided by sections 13-21-102.5, 13-64-203 to -205, and 13-64-302, C.R.S., the instructions in subpart D of Part I of Chapter 15 should be used rather than Instructions 6:1, 6:1A, and 6:1B. Wrongful Death 10. In actions for wrongful death, Instructions 10:3 and 10:4 should be used rather than Instructions 6:1, 6:1A, and 6:1 B. Economic Loss Rule 11. For a discussion of the economic loss rule, see the Introductory Note to Chapter 9. 3 A. PERSONAL INJURIES 6:1 PERSONAL INJURIES — ADULTS Plaintiff, (name), has the burden of proving, by a preponderance of the evidence, the nature and extent of (his) (her) damages. If you find in favor of the plaintiff, you must determine the total dollar amount of plaintiff’s damages, if any, that were caused by the (insert appropriate description, e.g., “negligence”) of the defendant(s), (name[s]), (and) (,) (the [insert appropriate description, e.g., “negligence”], if any, of the plaintiff[s], [name(s)]), (and) (the [insert appropriate description, e.g., “negligence”], if any, of any designated nonparties). In determining such damages, you shall consider the following: 1. Any noneconomic losses or injuries which plaintiff has had to the present time or which plaintiff will probably have in the future, including: physical and mental pain and suffering, inconvenience, emotional stress, impairment of the quality of life, and (insert any other recoverable nonecomonic losses for which there is sufficient evidence). (In considering damages in this category, you shall not include actual damages for [physical impairment] [or] [disfigurement], because these damages, if any, are to be included in a separate category.) 2. Any economic losses or injuries which plaintiff has had to the present time or which plaintiff will probably have in the future, including: loss of earnings or damage to (his) (her) ability to earn money in the future, (reasonable and necessary) medical, hospital, and other expenses, and (insert any other recoverable economic losses of which there is sufficient evidence). (In considering damages in this category, you shall not include actual damages for [physical impairment] [or] [disfigurement], since these damages, if any, are to be included in a separate category.) (3. Any [physical impairment] [or] [disfigurement]. In considering damages in this category, you shall not include damages again for losses or injuries already determined under either numbered paragraph 1 or 2 above.) Notes on Use 1. See Introductory Note to this Chapter. 2. Use only those numbered paragraphs or parenthesized portions of the instruction that apply to the evidence in the case. 3. This instruction, together with Instructions 6:1A and 6:1B, where applicable, can also be used in lieu of other, more specific, instructions on damages by deleting or adding such elements of damage as are appropriate in light of the evidence in the case. 4. The amount of damages prayed for should not be stated in this instruction or in the statement of the case. Rodrigue v. Hausman, 33 Colo. App. 305, 519 P.2d 1216 (1974); see 4 Note 2 of Notes on Use to Instruction 2:1; see also C.R.C.P. 8(a) (no dollar amount shall be stated in the demand or prayer for relief). 5. If the jury has found in favor of the plaintiff, then they have found that the defendant was negligent. Therefore, the phrase “if any” in the first paragraph is not necessary after “the negligence of the defendant(s)” but is necessary after the reference to the possible negligence of plaintiff and any nonparty. 6. Because the nature of the tortious conduct of the parties or designated nonparties need not be the same, the final clause of the first paragraph of this instruction must be tailored by including a description of the culpable conduct alleged against each party and designated nonparty. See, e.g., Moody v. A.G. Edwards & Sons, Inc., 847 P.2d 215 (Colo. App. 1992). Additionally, where there are multiple defendants, and different types of tortious conduct have been alleged against different defendants (for example, negligence as against Defendant A and strict liability or “fault” as against Defendant B), the final clause of the first paragraph of this instruction must be altered to describe separately the nature of the tortious conduct alleged as to each defendant. 7. For civil actions other than medical malpractice actions, the maximum amount of noneconomic and derivative noneconomic damages that may be awarded is set by section 13-21- 102.5(3)(a) and (b), C.R.S., as adjusted periodically for inflation by the Colorado secretary of state. § 13-21-102.5(3)(c). As of the most recent certification of January 13, 2015, the secretary of state has certified the following adjusted limitations for these damages: For claims that accrue on or after January 1, 1998, and before January 1, 2008, $366,250, which may be increased by the court upon clear and convincing evidence of justification to a maximum of $732,500.
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