Common Civil Causes of Action in Colorado and Denver Courts
There are a vast amount of causes of action that can be brought in civil courts. The following is a list and discussion of common causes of action for civil claims that are frequently brought in Colorado and Denver courts. The list is not intended to be comprehensive of all causes of action available in Colorado and Denver courts, nor is it intended to be a full discussion of the causes of action listed herein.
1. Abuse of Process
Abuse of process is a cause of action related to the improper use of a legal action to extort some benefit. Abuse of process generally requires:
(1) an ulterior motive in the use of judicial proceedings;
(2) willful actions by a party in the use of the process that are not proper in the regular conduct of a lawsuit;
(3) damages; and
(4) the legal action lacked a reasonable factual basis or cognizable basis in law.
Damages for an abuse of process claim can include attorneys’ fees spent in defending the lawsuit and potentially punitive damages if there is sufficient evidence of malice or willful or wanton conduct exhibited in bringing the lawsuit. Colorado Causes of Action, 2005 Ed. & 2011 Supp. at 1-1 (Douglas Scott MacGregor & Alyssa Roen ed., Bradford Publishing) (hereinafter Colorado Causes of Action).
2. Malicious Prosecution
Similar to abuse of process claims, malicious prosecution claims seek damages for intentional wrongful prosecution of legal actions without just. The claim can apply to both civil and criminal lawsuits and is distinct from abuse of process claims in that malicious prosecution claims require the plaintiff to prove malice and, also, that the underlying proceeding was resolved in the plaintiff’s favor. Under Colorado law malicious prosecution claims require the plaintiff to show:
(1) the defendant was a party to or assisted in a prior action against the plaintiff;
(2) the prior action was resolved in the plaintiff’s favor;
(3) there was no probable cause for the prior action, or the defendant lacked reasonable belief that the prior action would be successful;
(4) the prior action was brought by the defendant with malice or other improper motive; and
(5) the plaintiff suffered damages as a result.
Where a plaintiff proves a malicious prosecution claim, she will be entitled to actual damages proximately caused as a result of the proceeding. This includes emotional distress, humiliation, injury to reputation, loss of time and business, and attorneys’ fees incurred in defending the prior proceeding. Further, punitive damages may be awarded since a malicious prosecution inherently requires that the prior proceeding was brought with malice or an improper motive. Colorado Causes of Action at 23-1.
3. Adverse Possession
Adverse possession claims relate to rightful possession of property. Specifically, adverse possession is a traditional defense to quiet title or ejectment actions whereby the person asserting adverse possession is essentially claiming she is the true owner of the property based on how long she has been in possession of the property. In particular, adverse possession requires:
(1) actual possession;
(2) the possession is adverse;
(3) the possession is hostile;
(4) it is done under claim of right;
(5) it exclusive; and
(6) possession is uninterrupted for the statutory period.
In Colorado, the statutory period for an adverse possession claim is 18 years. Accordingly, the adverse possessor must be exercising possession of the disputed property for 18 years in conformance with the elements above in order to prevail on an adverse possession claim. Importantly, if the true owner gives permission to the adverse possessor to use the property during the statutory period, it will defeat a claim of adverse possession since the possession is no longer adverse. If an adverse possessor prevails on her claim, she will be awarded ownership of the disputed property. Colorado Causes of Action at 2-1.
4. Animal Injury Liability
Animal injury claims pertain to just that, injuries inflicted by animals. Generally speaking, there are two categories of animal injuries that can give rise to liability: injuries by domestic animals – for example, dogs, cats, etc.; and injuries by wild animals – for example, tigers, bobcats, bears, etc. For injuries inflicted by domestic animals Colorado law requires:
(1) the animal had vicious tendencies;
(2) the owner had knowledge or notice of the animal’s vicious tendencies; and
(3) the owner did no exercise reasonable care to prevent injuries reasonably anticipated to result from the vicious tendencies.
Further, there are statutory requirements to establish liability based on a serious bodily injury from a dog bite. See C.R.S. § 13-21-124. Those are:
(1) the plaintiff suffered serious bodily injury or death;
(2) as a result of being bitten by a dog;
(3) while lawfully on public or private property.
For wild animals, the general standard is absolute liability, meaning that if an owner is possessing or keeping a wild animal, that owner is automatically liable for injuries inflicted by the animal. The plaintiff does not have to prove negligence on behalf of the owner or other elements as required by domestic animal bites. Colorado Cause of Action at 3-1.
Assault is a tort whereby the defendant places the plaintiff in apprehension of a harmful or offensive conduct from the defendant. Contrary to popular belief, assault does not require actual physical contact. Assault in Colorado requires a plaintiff to show:
(1) the defendant intended to cause an offensive or harmful physical with the plaintiff or intended to place the plaintiff in apprehension of such contact;
(2) the plaintiff was placed in apprehension of an imminent contact with his or her person by the conduct of the defendant; and
(3) the contact was, or appeared to be, harmful or offensive.
Accordingly, a plaintiff in Colorado can have a claim for assault even if there was no actual physical contact, the plaintiff just needed to be placed in fear of imminent contact. Notably, assault requires the defendant acted with the intent to either cause physical harm to the plaintiff or place the plaintiff in fear of physical harm. Accordingly, accidental contact or actions by the defendant do not give rise to liability for assault. Colorado Causes of Action at 4-1.
In contrast to assault, battery does require actual physical contact to occur. In particular, the elements for battery under Colorado law are:
(1) the defendant intended to cause harmful or offensive contract with the plaintiff, or intended to place the plaintiff in apprehension of harmful or offensive contact; and
(2) A harmful or offensive contact with the plaintiff actually occurred, either directly or indirectly.
Where a plaintiff has a claim for battery, he or she may recover damages for both physical injury resulting from the contact as well as non-economic damages for pain and suffering – for example, fear, anxiety, indignity and disgrace. Further, if the circumstances are egregious enough, the plaintiff may also seek and be awarded punitive damages where the injury was attended by fraud, malice, or willful and wanton conduct. Colorado Causes of Action at 6-1.
7. Bad Faith Breach of an Insurance Contract
Bad faith breach of an insurance contact is an action that arises in tort and stems from an insurer’s bad faith denial of an insurance claim. Generally speaking, insurers have a duty to act in good faith when dealing with an insured and, similarly, when dealing with an insured’s claim on their insurance.
Moreover, bad faith breach of insurance contract claims can typically only be brought by the person who actually has the contract with the insurance company – that is, in most circumstances third parties that are not an actual party to the insurance contract cannot bring a bad faith claim. In Colorado, bad faith insurance contract claims generally require:
(1) the defendant acted unreasonably in denying an insurance claim, either with knowledge that its conduct was unreasonable or in reckless disregard of whether its conduct was unreasonable; and
(2) the defendant’s unreasonable conduct caused the plaintiff’s damages or loss.
Where a bad faith breach of insurance contract claim is successful, the plaintiff can recover noneconomic damages as well as economic damages, including damages for emotional distress, loss of income or job, impairment of credit rating, worsening of physical condition, attorneys’ fees, and potentially punitive damages. Colorado Causes of Action at 5-1.
8. Breach of Contact
Breach of contract actions are self-descriptive and arise where a party breached a contract that he or she had an obligation to fulfill. The general elements for a breach of contract action are:
(1) there was a contract between the parties;
(2) the plaintiff fulfilled their end of the contract or the plaintiff’s non-performance of the contract was justified;
(3) the defendant failed to fulfill their end of the contract; and
(4) the plaintiff incurred damages as a result of the defendant’s breach.
In general, the statute of limitations for bringing contract actions in Colorado and Denver courts is three years. See C.R.S. § 13-80-103.5. However, certain types of contracts are subject to a longer statute of limitations periods. See, e.g., C.R.S. § 13-80-103.5. Further, Colorado’s Statute of Frauds governs what types of contracts need to be in writing in order to be enforceable. C.R.S. § 38-10-112.
Typical damages for a breach of contract action include the monetary amount necessary to place the non-breaching party back in the position it was before the breach occurred. Notably, under Colorado’s economic loss rule, only economic damages may be obtained from a breach of contract action – that is, damages for emotional distress, pain and suffering, etc., are not recoverable. However, these non-economic damages may be recoverable if the contract specifically provides for it or in bad faith breach of insurance contract actions. Colorado Causes of Action at 6-1.
9. Intentional Interference with Contractual Relations
Interference with contractual relations is a tort recognized by Colorado and Denver courts whereby a plaintiff may recover against a third party for inducing a breach of the plaintiff’s contract. Specifically, interference with contractual relations requires:
(1) a valid contract between the plaintiff and a third party;
(2) knowledge by the defendant of the contract or of facts that lead the defendant to inquire about the existence of a contract;
(3) intent by the defendant to induce the third party to breach the contract;
(4) wrongful or improper action by the defendant that induces the third party to breach the contract; and
(5) damages to the plaintiff caused by the breach.
Notably, under Colorado law it is generally not improper to interfere with a contract when it involves a matter of competition between parties – for example, competition for employees based on compensation. In contrast, inducing a breach based on physical violence, fraud, civil suits, and criminal prosecution is generally considered improper and can give rise to liability for an intentional interference of contract claim.
Where intentional interference with contractual relations has occurred, damages are not necessarily governed by laws governing contractual damages. In particular, while contractual damages do not normally include non-economic damages, such as emotional distress arising from the breach, damages arising from an intentional interference with contractual relations claim can include non-economic damages since the claim is a tort claim as opposed to a breach of contract claim. Additionally, punitive damages may be recoverable if the circumstances are egregious enough. Colorado Causes of Action at 10-1.
10. Breach of Fiduciary Duty
A fiduciary duty is a duty owed to another person to act primarily for the benefit of that person in matters the fiduciary is handling for that person. A fiduciary’s obligations include a duty of loyalty, a duty to exercise reasonable care and skill, and a duty to deal impartially with beneficiaries. In Colorado, breach of a fiduciary duty requires:
(1) the defendant was acting as a fiduciary to the plaintiff;
(2) the defendant breached the fiduciary duty;
(3) the plaintiff suffered damages as a result; and
(4) the defendant’s breach of his fiduciary duty was a cause of the plaintiff’s damages.
Some examples of relationships where a fiduciary duty may exist are: between partners in a business entity, corporate officers and directors that owe a fiduciary duty to the corporation and its shareholders, and financial planners and their clients. Additionally, if a confidential relationship exists between parties or entities than that may be sufficient to give rise to a fiduciary duty if the plaintiff placed trust or confidence in the defendant and the defendant acquiesced in that trust and agreed to act for the benefit of the plaintiff. Colorado Causes of Action at 7-1.
11. Claims for Violation of the Colorado Organized Crime Control Act
The Colorado Organized Crime Control Act (“COCCA”) is analogous to the federal Racketeer Influenced and Corrupt Organization Act (“RICO”) and provides for plaintiffs to bring a civil action where an unlawful debt has been collected or there is a pattern of racketeering activity. C.R.S . § 18-17-106(7). In order to successfully win a COCCA action, the plaintiff must show the defendant:
(1) violated one of the provisions of C.R.S. § 18-17-104; and
(2) the plaintiff sustained an injury caused by a violation of those provisions.
Generally speaking, C.R.S. § 18-17-104 makes it unlawful for a person to knowingly use proceeds from collection of an unlawful debt or proceeds from racketeering activity to acquire title to real property, or to establish or operate any enterprise. Importantly, the act requires the defendant knowingly engaged in the prohibited conduct – that is, there can be no negligent violation of COCCA. Additionally, if a plaintiff proves a violation of COCCA, he or she is entitled to treble the amount of damages incurred as well as attorneys’ fees in pursuing the action. Colorado Causes of Action at 9-1.
12. Civil Conspiracy
Civil conspiracy is a tort claim that requires two or more individuals to have agreed or acted in a concerted action to accomplish something unlawful. In Colorado, in order to prove a civil conspiracy claim, the plaintiff must show:
(1) two or more persons;
(2) acted with an object to be accomplished;
(3) the persons involved were in agreement on the object or course of action;
(4) they committed an intentional, unlawful overt act; and
(5) the act proximately resulted in damages to the plaintiff.
Some examples of unlawful overt acts include, among others, acts constituting prima facie cases of breach of contract, wrongful discharge, common law fraud, and slander. Where a civil conspiracy claim is proven, the defendants involved are jointly and severally liable for the judgment – meaning that all defendants all liable for the entire amount of the judgment. Colorado Causes of Action at 10-1.
13. Violations of the Colorado Consumer Protection Act
The Colorado Consumer Protection Act (“CCPA”) is designed to deter and punish deceptive trade practices by businesses that deal with the public. The act allows for actions to be brought by the Colorado Attorney General as well as private actions brought by individuals. In order to prevail on a CCPA claim, the plaintiff must show:
(1) the defendant engaged in an unfair and deceptive trade practice as defined in C.R.S. § 6-1-105(1);
(2) the practice occurred in the course of the defendant’s business, vocation, or occupation;
(3) the practice significantly impacts the public as actual or potential consumers of the defendant’s goods, services or property;
(4) the plaintiff suffered injury in fact to a legally protected interest; and
(5) the practice caused the plaintiff’s injury.
The deceptive trade practices enumerated under C.R.S. § 6-1-105(1) are generally oriented towards businesses providing false or misleading representation with regard to the sale of goods or services. Importantly, liability under the also requires that the unfair and deceptive trade practice impact the public – that is, a dispute that only affects the two parties involved is not an actionable CCPA claim.
Defendants found to have violated the act will be liable for the greater of: actual damages, $500, or treble the amount of actual damages if there is clear and convincing evidence that the violation occurred in bad faith. Further, the CCPA allows for a prevailing plaintiff to recover attorneys’ fees incurred in litigating the action. Colorado Causes of Action at 11-1.
14. Constructive Fraud
Constructive fraud in Colorado is a breach of duty which the law declares fraudulent because of its tendency to deceive, violate confidence, or to injure public interests. The elements for constructive fraud have not been explicitly set out by Colorado courts; however, the elements for actual fraud are instructive for what constitutes constructive fraud.
While there is uncertainty with respect to what is necessary to prove constructive fraud, the federal district court of Colorado has indicated that a critical element of constructive fraud is the existence of a confidential or fiduciary duty by the defendant to the plaintiff. Colorado Causes of Action at 12-1.
15. Conversion of Property
Conversion of property is a tort claim where a plaintiff seeks damages for another individual interfering with her property. Generally speaking, conversion occurs where the plaintiff is physically deprived of the use of her property to the extent that the defendant is required to compensate the plaintiff for the full value of the property. An example of conversion would be where the defendant physically takes or steals property from the plaintiff. In order to establish a claim for conversion, the plaintiff must show:
(1) the defendant has committed a distinct, unauthorized act of dominion or ownership over;
(2) the personal property of the plaintiff.
Notably, temporarily excluding a plaintiff from possession of his or property does not give rise to a claim for conversion – the defendant’s actions must be sufficient to effectively deprive the plaintiff of full use of the property. Temporary exclusion may, however, give rise to a claim of trespass of chattels which does not require a full exercise of dominion or ownership of the property.
If a plaintiff succeeds on her conversion claim, she will be entitled to full compensation for the value of the property plus interest at the statutory rate from the time of conversion to the time of trial. Further, damages for lost profits may be obtained as well as punitive damages where the taking of the property was done in such a manner that constituted a wanton disregard for plaintiff’s rights. Colorado Causes of Action 13-1.
Defamation is a false communication made to a third-party that causes an individual to suffer contempt, ridicule, or harm to his or her reputation. In Colorado, in order to prove a defamation claim a plaintiff needs to show:
(1) a defamatory statement concerning another;
(2) the statement was made to a third-party;
(3) with fault amounting to at least negligence on the part of the publisher; and
(4) the statement is either actionable per se or actionable based on special damages.
A defamatory statement is one that tends to harm the reputation of another. Importantly, there is a distinction between an opinion, which is not actionable; and a defamatory statement, which is actionable. At its most basic, an opinion is a statement that cannot be proven true or false while a defamatory statement has enough of a factual basis that it can be proven false.
Further, there are two types of defamatory statements: those that are defamatory per se, and those that are not defamatory per se and require special damages to be proven. Examples of statements that are defamatory per se include statements alleging that the plaintiff committed a crime; that the plaintiff is afflicted with a loathsome disease; or statements that defame the plaintiff in his or her trade, business, profession, or office.
Damages for defamatory statements include compensation for harm to the plaintiff’s reputation, personal humiliation, mental or physical suffering, loss of income, or injury to credit rating. In cases involving defamatory statements per se the plaintiff does need not show that the statement actually caused harm to his or her reputation; however, for statements that are not defamatory per se, the plaintiff does have to show special damages in the form of reputational harm. Colorado Causes of Action at 14-1.
17. DRAM Shop Liability
DRAM shop liability is the civil liability that exists for bars and other establishments for personal injury or property damage caused by an intoxicated customer that the establishment served alcohol to. Under present law, DRAM shop liability is strictly statutory and is codified at C.R.S. § 12-47-801. In particular, in order for a plaintiff to prevail on a DRAM shop liability statute, she must demonstrate that:
(1) she is a qualified plaintiff under the statute;
(2) the defendant is either a licensed establishment or social host;
(a) if the defendant is a licensed establishment, the defendant willfully and knowingly served alcohol to a person who was:
(i) less than 21 years old; or
(ii) visibly intoxicated.
(b) If the defendant is a social host, the defendant knowingly;
(i) served alcohol to a person less than 21 years of age; or
(ii) provided a place to consume alcohol to a person less than 21 years of age.
(3) the serving or allowing of people to consume alcohol proximately resulted in injury to the plaintiff.
In order for a plaintiff to qualify under the statute, the plaintiff must be an injured third party – that is, the person who consumed the alcohol cannot bring a DRAM shop liability under the statute since he would not be a qualifying plaintiff.
In addition, under the statute damages are capped at $150,000 adjusted for inflation from 1998. The cap applies only between one defendant and one individual thus, total liability could exceed the cap limit if there are multiple injured plaintiffs or multiple defendants. Colorado Causes of Action at 15-1.
18. False Imprisonment
False imprisonment is an unlawful restraint on a person’s freedom of movement. In order to prove a claim of false imprisonment, a plaintiff must show:
(1) the defendant intentionally restricted the plaintiff’s freedom of movement;
(2) the plaintiff’s freedom of movement was restricted for a period of time, either directly or indirectly by the defendant;
(3) the plaintiff was aware that his or her freedom of movement was restricted.
Examples of false imprisonment range from being stopped and questioned for shoplifting at a department store to false arrest and unlawful detention by police officers. Importantly, a person can be liable for false imprisonment where he directs or instigates a police officer to make a false arrest – for example, by falsely reporting a crime.
Damages for false imprisonment include damages for physical injury as well as non-economic damages such as mental pain and suffering. Additionally, punitive damages can be awarded where the circumstances are egregious enough to show that the false imprisonment was done with evil intent or with such wanton and reckless disregard of the plaintiff’s rights to show a wrongful motive. Colorado Causes of Action at 16-1.
19. Forcible Entry and Detainer
Forcible Entry and Detainer (“FED”) actions, more commonly known as evictions [http://www.jdporterlaw.com/landlord-tenant/], are action brought to remove a person and their belongings from the plaintiff’s property. Under Colorado law, an FED action requires:
(1) the landlord to show she has a right to possession;
(2) the existence of a landlord and tenant relationship whereby the tenant entered the property; and
(3) the defendant is wrongfully maintaining possession of the property.
One of the most common causes of action for an FED action is a defendant’s failure to timely pay rent. Notably, damages for an FED action can include the rental value for the time period the defendant was wrongfully withholding possession of the premises, and reasonable attorney fees and costs of the lawsuit in bringing the action. Colorado Causes of Action at 17-1.
Fraud is a tort or personal injury based an overt misrepresentation or failure to disclose a material fact. In particular, in order to show fraud under Colorado law, a plaintiff must prove that:
(1) the defendant made a false representation of a past or present fact;
(2) the fact was material;
(3) the defendant made the representation knowing it was false or was aware he did not know it was true or false;
(4) the defendant made the representation with the intent that the plaintiff rely on it;
(5) the plaintiff relied on the representation;
(6) the plaintiff’s reliance was justified; and
(7) the reliance resulted in damage to the plaintiff.
Importantly, bringing a fraud claim requires a heightened pleading standard. In particular, the claim alleging fraud must be stated with sufficient particularity to demonstrate that the complaint is seeking redress for a particular wrong as opposed to just generally seeking to find a wrong.
Remedies for a successful fraud claim include actual damages – that is, the value of any damage actually suffered. This may include the difference between market value for what a particular piece of property is worth and what it would have been worth if the fraudulent representation was true. Consequential damages and non-economic damages such as mental suffering may be awarded as well. Additionally, punitive damages may be awarded where the fraudulent actions are sufficient to demonstrate malicious intent. Colorado Causes of Action at 18-1.
21. Intentional Infliction of Emotional Distress
Intentional infliction of emotional distress is a tort claim seeking damages for an individual intentionally inflicting emotional distress on the plaintiff. In Colorado, in order to prove a claim for intentional infliction of emotional distress the plaintiff must show that:
(1) the defendant engaged in extreme and outrageous conduct;
(2) the defendant engaged in that conduct recklessly or with the intent to cause the plaintiff severe emotional distress;
(3) the plaintiff suffered severe emotional distress as a result.
Importantly, the level of conduct necessary to qualify as extreme and outrageous conduct is relatively high. The conduct must be so extreme as to go beyond the bounds of decency that a normal person in civilized society would be asked to endure. Notably, mere insults or indignities are generally insufficient to satisfy this requirement.
Damages for intentional infliction of emotional distress include economic and non-economic losses arising from the conduct – for example, money paid for therapy, pain and suffering etc. Punitive damages are also allowed were the conduct is egregious enough to demonstrate the conduct was done fraudulently, with malice, or was willful and wanton. Colorado Causes of Action at 19-1.
22. Invasion of Privacy
Colorado courts have recognized three causes of action as invasion of privacy of claims: (1) appropriation of another’s name and likeness; (2) unreasonable publicity given to another’s private life; (3) unreasonable intrusion upon the seclusion of another. The specific elements for each claim are:
Appropriation of another’s name and likeness
(1) the defendant used the plaintiff’s name or likeness;
(2) the use of the plaintiff’s name or likeness was for the defendant’s own purposes or benefit; and
(3) the plaintiff suffered damages as a result.
Unreasonable publicity given to another’s private life
(1) the fact disclosed must be private in nature;
(2) the disclosure must be made to the public;
(3) the disclosure must be one which a reasonable person would find highly offensive;
(4) the fact disclosed must not be of legitimate concern to the public;
(5) the defendant acted with reckless or intentional disregard of the private nature of the fact disclosed; and
(6) the disclosure resulted in damages to the plaintiff.
Unreasonable intrusion upon the seclusion of another
(1) another person has intentionally intruded, physically or otherwise;
(2) upon the seclusion or solitude of the plaintiff;
(3) the intrusion would be offensive to a reasonable person; and
(4) the invasion was a cause of plaintiff’s damages.
Damages for invasion of privacy claims include personal damages and non-economic damages. Such damages include: damages for harm to the interest in privacy resulting from the invasion, damages for mental distress, and special damages attributable to the invasion of privacy. Additionally, plaintiffs may be entitled to nominal damages where no other damages are proven. Colorado Causes of Action at 21-1; Privacy: A Common Law and Constitutional Crossroads, 40 Colo.Law. 55 (2001).
23. Legal Malpractice
Legal malpractice is the negligent representation of a client which results in damages to the client stemming from the attorney’s negligence. In particular, Colorado law requires that a plaintiff alleging a legal malpractice claim prove:
(1) the attorney owed a duty of care to the plaintiff;
(2) the attorney breached that duty; and
(3) the attorney’s breach proximately resulted in damages to the plaintiff.
Importantly, C.R.S. § 13-20-601 requires a certificate of review to be filed in all actions asserting negligence on behalf of a professional, including an attorney malpractice case. The certificate of review must attest that the filing party consulted with an expert in a field relevant to the asserted claims and that the claims are not frivolous or without merit. Notably, a certificate of review is a statutory requirement and a case will be dismissed if a certificate of review is not filed in the action.
Once a plaintiff proves a malpractice claim, she is entitled to actual damages representative of the loss actually sustained due to the attorney’s negligence. This may include fees paid to the attorney for services that were performed incompetently and other attorneys’ fees incurred to correct the negligent work. Punitive damages may also be awarded where the circumstances are egregious enough to show the negligent action was committed with fraud, malice, or willful and wanton conduct. Further, interest on damages may be claimed from the date the action accrued. C.R.S. § 13-21-101(1); Colorado Causes of Action at 22-1.
24. Medical Malpractice
Similar to legal malpractice, medical malpractice is an action brought alleging negligence against a medical professional. Like legal malpractice, a medical malpractice also requires that a certificate of review be filed indicating that a medical expert has been consulted and that the claim is not frivolous or substantially without merit. In order to establish a claim for medical practice under Colorado law, a plaintiff must show:
(1) that the defendant owed a legal duty of care to the plaintiff;
(2) the defendant breached that duty; and
(3) the plaintiff suffered an injury as a result of the defendant’s breach.
Damages for a medical malpractice are limited by statute. In particular, C.R.S. § 13-64-302 provides that damages in a civil action brought against a health care professional shall not exceed $ 1 million per patient on a present value basis. However, the court may waive the restriction for good cause shown and where it would generate an unfair outcome. Additionally, economic and non-economic damages may be recovered in a medical malpractice action. Colorado Cause of Action at 24-1.
25. General Negligence
A general negligence claim involves the breach of a duty owed to somebody and damages resulting from that breach. In other words, negligence involves the commission or omission of an action which, under the circumstances, a different action should have been taken. More specifically, under Colorado law a general negligence claim requires the plaintiff to show:
(1) the defendant owed a legal duty to the plaintiff;
(2) the defendant breached that duty; and
(3) the breach resulted in injury to the plaintiff.
The question of whether the defendant owed a legal duty to the plaintiff is a question of law and, accordingly, must be decided by the court. Importantly, a number of factors have been enumerated by the Colorado Supreme Court for determining whether a duty existed, including: (1) the risk involved; (2) the foreseeability and likelihood of injury as weighed against the social utility of the actor’s conduct; (3) the burden that guarding against the harm would require; and (4) the consequences of placing the burden on the actor. However, these factors are not definitive and no one factor is dispositive. In essence, the question of whether there is a duty of care boils down to whether a reasonable person would recognize that a duty exists.
Where a plaintiff proves his negligence claim, he may recover both economic and non-economic damages. Examples of economic loss include damage to property, medical bills incurred, and general costs incurred as result of the breach. In contrast, non-economic damages include harm not measurable by pecuniary loss – for example, pain and suffering, inconvenience, emotional stress, and impairment of quality of life. Colorado Causes of Action at 25-1.
26. Negligent Entrustment
Negligent entrustment is a derivative claim of negligence and is a tort seeking relief for a defendant’s entrustment of an object to an individual without considering the potential of harm for that entrustment. Common examples include allowing a drunk individual to use your car and giving a person you know to be dangerous access to a weapon. In proving a negligent entrustment claim, Colorado law requires:
(1) that the defendant directly or through a third person permitted another party to use an object;
(2) the defendant knew or had reason to know;
(3) that the entrustee of the object, because of his youth, inexperience, or otherwise;
(4) was likely to use the object in a manner involving unreasonable risk; and
(5) the use of the object caused physical harm to the entrustee or others.
Plaintiffs who prove a negligent entrustment claim may recover both economic and non-economic damage which includes pecuniary losses, such as loss of property and expenses or costs incurred; and nonpecuniary losses, such as emotional distress and pain and suffering. Additionally, punitive damages may be awarded if the circumstances are sufficient to warrant them. Colorado Causes of Action at 25A-1.
27. Negligent Hiring
Negligent hiring occurs when an employer hires a person where, given that person’s background, the employer should have reason to know that hiring that person would create an undue risk of harm to others. More specifically, a negligent hiring claim under Colorado law requires the plaintiff to show:
(1) that the defendant owed to the plaintiff a legal duty of care in the selection of its employees;
(2) the defendant breached that duty; and
(3) the defendant’s breach caused injury to the plaintiff.
The amount of care an employer must exercise in selecting an employee depends on the specific circumstances of the job. However, if the work is likely to subject third parties to a serious risk of great harm, the employer does have a special duty to investigate. This may include conducting background checks, criminal checks, and past employment history checks. General examples of negligent hiring may include hiring an individual with a history of DUIs and traffic offenses to be a delivery driver and hiring an individual with a history of theft for a position that allows the person access to customers’ money.
Plaintiffs who prove a negligent hiring claim may recover both economic and non-economic damages. Emotional distress and pain and suffering may be recoverable as non-economic damages. Additionally, punitive damages may be awarded if the circumstances are sufficient to warrant them. Colorado Causes of Action at 26-1.
28. Negligent Misrepresentation
Negligent misrepresentation is a claim seeking relief for disclosure of false information to the plaintiff. Under Colorado law, in order to prove a claim of negligent misrepresentation, the plaintiff must show:
(1) the defendant negligently gave false information to the plaintiff;
(2) the plaintiff reasonably relied on that information; and
(3) the disclosure of the false information resulted in injury to the plaintiff.
Importantly, negligent misrepresentation is different from fraud or other claims which require intentional or willful or wanton misrepresentation. In contrast, negligent misrepresentation requires only that a duty of care was owed to the plaintiff and incorrect information was negligently given to the plaintiff. Some examples of negligent misrepresentation include failure of an engineer to disclose structural damage and failure of a physician to disclose risks associated with medical treatment.
Damages for a negligent misrepresentation claim based on monetary loss include the difference between the actual value of what the plaintiff received and what the plaintiff paid for it, and pecuniary losses incurred as a result of the plaintiff’s reliance on the misrepresentation. Non-economic damages such as emotional distress may also be recoverable where the negligent misrepresentation is not based purely on economic damages – for example, failure to disclose treatment risks which results in pain and suffering to the plaintiff. Colorado Causes of Action at 27-1.
At its most basic level, a nuisance claim is designed to protect a property owner’s right to comfort and enjoyment of her property. Importantly, nuisance are split into two categories: actions for public nuisances and actions for private nuisances. Public nuisances are addressed by statutes C.R.S. § 16-13-301 to 16-13-310 and oriented towards recovery based on the invasion of public rights. In contrast, private nuisances are based on an individual’s property ownership and, under Colorado law, require the plaintiff to show that:
(1) the defendant unreasonably and substantially interfered with;
(2) the plaintiff’s use and enjoyment of his property.
Importantly, the nuisance’s interference with the plaintiff’s land must be substantial enough that a normal person of the community would find it offensive, annoying, or inconvenient. Examples of a private nuisance include excessive noise levels, odors and stenches emanating from a nearby property, and chemicals or radioactivity that threaten the health and safety of neighbors.
Remedies for a nuisance generally include an injunction prohibiting the injurious conduct and, if an injunction abating the nuisance is not available, damages may be awarded for diminution in property value as a result of the conduct. Additionally, punitive damages may be awarded if the circumstances are egregious enough to warrant them. Colorado Causes of Action at 28-1.
30. Premises Liability
Premises liability actions are those seeking relief for an injury that occurred on a defendant’s property. Colorado premises liability are governed by statute C.R.S. § 13-21-115. In order to establish a premises liability claim under Colorado law, the plaintiff must show:
(1) the defendant was a landowner;
(2) the defendant owed the plaintiff a duty of care;
(3) the defendant breached the duty of care; and
(4) the breach resulted in damages to the plaintiff.
Importantly, the statute governing premises liability makes a distinction between a plaintiff’s status when she is on the defendant’s property. Under the statute, the duty of care owed to the defendant depends on whether the plaintiff is a trespasser, licensee, or invitee.
Damages for a premise liability claim are determined by the statute and also depend on the plaintiff’s status. Generally speaking, it is easier for an invitee to recover relative to a licensee, and easier for a licensee to recover relative to a trespasser. Additionally, plaintiffs may assert claims for economic and non-economic damages as well as punitive damages where the circumstances are sufficient to warrant them. Colorado Causes of Action at 29-1.
31. Products Liability – Misrepresentation
Products liability claims seek relief for damages or injuries a plaintiff suffered in using a particular product. One specific type of product liability claim is based on a misrepresentation made to the public concerning the character or quality of a particular product. Under Colorado law, proving a product liability misrepresentation claim requires the plaintiff to show that:
(1) the defendant sold the product while engaged in the business of selling the product for resale, use, or consumption;
(2) the defendant misrepresented a fact concerning the character or quality of the product that would be material to purchasers of the product or members of the public at large;
(3) the plaintiff or a third party purchased the product and reasonably relied on the misrepresentation; and
(4) the plaintiff suffered damages as a result of his or a third party’s reasonable reliance on the misrepresentation.
Importantly, product liability misrepresentation claims are strict liability claims, meaning that it doesn’t matter whether the misrepresentation was made intentionally, recklessly, or negligently; if a misrepresentation was made regardless of the intent, it can give rise to liability.
For product liability misrepresentation claims, damages that are recoverable include actual damages incurred. Further, while the plaintiff can recover for physical harm suffered as a result of using the product, damages cannot be recovered for commercial or business losses. Colorado Cause of Action at 30-1.
32. Products Liability – Negligence
Product liability negligence claims are typically oriented towards products that are unreasonably dangerous or where the manufacturer failed to warn of their danger and their use resulted in injuries to the plaintiff. In particular, Colorado law requires a plaintiff alleging a products liability negligence claim to prove:
(1) the defendant owed a legal duty of care to the plaintiff;
(2) the defendant breached that duty; and
(3) the defendant’s breach resulted in injuries to the plaintiff.
A product manufacturer may breach its duty to the plaintiff by designing a product that is unreasonably dangerous or that presents an unreasonable risk of harm to person or property when the product is being used in a manner the defendant should reasonably have expected.
Damages for a successful product liability negligence claim include economic and non-economic injuries. Additionally, Colorado’s economic loss rule, which limits damages to only economic damages, does not apply to products liability negligence claims unless a court determines there was no duty owed by the defendant independent of the parties’ contractual obligations. Colorado Causes of Action at 31-1.
33. Products Liability – Strict Liability
Product liability strict liability claims are similar to negligence claims; however, strict liability claims do not require that a breach of a duty be proven. In general, strict liability applies by proving the dangerous nature of the product. Accordingly, liability is independent of the defendant’s actions. Under Colorado law, product liability strict liability claims require:
(1) the product is in a defective condition unreasonably dangerous to the user or consumer or to the consumer’s property;
(2) the seller is in the business of selling such a product;
(3) the design defect caused the plaintiff’s injury; and
(4) the plaintiff incurred damages as a result.
Examples of defects giving rise to strict products liability include: physical flaws due to manufacturing defects, inadequate design, and inadequate warnings regarding the dangerousness of the product.
Where a product liability strict liability claim is successful, the plaintiff is entitled to actual damages incurred. Additionally, punitive damages may be recoverable where the circumstances are egregious enough to warrant them. Colorado Causes of Action at 32-1.
34. Product Liability – Breach of Warranty
Product liability breach of warranty claims are based on the warranty provisions of the Uniform Commercial Code, C.R.S. § 4-2-313, et seq. Examples of breach of warranty include breach of express warranty, breach of implied warranty for a particular purpose, and breach of implied warranty of merchantability. The elements required under Colorado law for each are enumerated below.
Breach of express warranty
(1) The defendant sold the product to the plaintiff;
(2) the defendant expressly warranted the product to the plaintiff;
(3) the plaintiff is a person who was reasonably expected to use, consumer, or be affected by the product;
(4) the product was not as expressly warranted;
(5) the breach of warranty resulted in injuries to the plaintiff; and
(6) within a reasonable time after the plaintiff discovered or should have discovered the breach of warranty the plaintiff notified the defendant of the breach.
Breach of implied warranty for a particular purpose
(1) The defendant sold the product to the plaintiff;
(2) the defendant impliedly warranted the product to be fit or suitable for the particular purpose described by the plaintiff;
(3) the plaintiff is a person who was reasonably expected to use, consumer, or be affected by the item in question;
(4) the item in question was not suitable or fit for the particular purpose for which it was warranted;
(5) the breach of warranty caused the plaintiff injuries; and
(6) within a reasonable time after the plaintiff discovered or should have discovered the breach of warranty the plaintiff notified the defendant of the breach.
Breach of implied warranty of merchantability
(1) the defendant sold the product to the plaintiff;
(2) the plaintiff is a person who was reasonably expected to use, consumer, or be affected by the product;
(3) the defendant was a merchant with respect to the type of product involved in the claim;
(4) the product was not of merchantable quality at the time of sale;
(5) the breach of warranty caused the plaintiff’s injury; and
(6) within a reasonable time after the plaintiff discovered or should have discovered the breach of warranty the plaintiff notified the defendant of the breach.
Remedies for product liability breach of warranty actions include the difference in value between the value of the goods accepted and the value the goods would have had if they had been as warranted. Incidental damages may also be recoverable and include: expenses reasonably incurred in the inspection, receipt, transportation, and a care and custody of the non-conforming goods, commercially reasonable expenses incurred in connection with “covering” or rectifying the non-conforming goods, and any other reasonable expenses. Further, consequential damages for injuries to persons or property resulting from use of the non-conforming goods are also recoverable along with losses arising from inability to use the goods of which the seller was or should have been aware of. Colorado Causes of Action at 32A-1.
35. Promissory Estoppel
Promissory estoppel is an equitable doctrine that is similar to breach of contract actions. The doctrine was adopted to allow recovery based on representations of another where there is no enforceable contract. Under Colorado law, a plaintiff asserting a claim for promissory estoppel has to show:
(1) the promisor made a promise to the promisee;
(2) the promisor should reasonably have expected that the promise would induce action or forbearance by the promisee;
(3) the promisee in fact reasonably relied on the promise to the promisee’s detriment; and
(4) the promise must be enforced to prevent injustice.
Importantly, since a promissory estoppel claim is dependent on there being no enforceable contract, the Statute of Frauds, which requires certain contracts to be in writing, is not a defense. In fact, promissory estoppel claims are designed to ensure recovery where people employ the Statute of Frauds as a defense to defeat legitimate breach of contract claims.
Where a plaintiff proves a promissory estoppel claim, she is entitled to normal contractual remedies as if a contract had actually been formed. This includes economic damages, incidental damages, and consequential damages arising from the breach. Colorado Causes of Action at 32B-1.
36. Slander of Title
Slander of title is a claim seeking recovery for damages associated with disparagement of an owner’s title for land, physical property, and intangible things. Under Colorado law, slander of title requires:
(1) slanderous words;
(3) malice; and
(4) special damages.
Importantly, slander of title is separate from personal defamation because slander of title requires proof of special harm in all cases, a greater amount of fault than negligence, and is more oriented towards disparagement of property as opposed to inflicting injury on a person’s reputation. Examples of slander of title include falsely recording a void contract that creates a cloud on somebody’s title and filing a false lien statement on another’s property.
Damages for successfully proving a slander of title claim are limited to pecuniary losses resulting directly from the defendant’s conduct and may include loss in value of property as well as attorneys’ fees incurred in rectifying any title issues. Colorado Causes of Action at 33-1.
A trespass is the entry on another person’s property without permission from the owner. In order for a plaintiff to prove a trespass claim, Colorado law requires the plaintiff to show:
(1) intentional physical intrusion on the plaintiff’s property;
(2) without proper permission; and
(3) legal entitlement to possession of property by the party claiming trespass.
Importantly, Colorado law does not recognize different standards of care in trespass claims – that is, a plaintiff does not need to show a specific intent to trespass, just that the action was intentionally committed and a trespass resulted. Examples of trespass can include directing grade work to be performed on another’s property without permission, constructing a building that encroaches on another’s property, and altering the drainage pattern of surface water.
Damages for trespass include actual damages and nominal damages where there is insufficient evidence to demonstrate actual damages. Actual damages may include compensation for diminution of market value, costs of restoration, loss of use, and discomfort and annoyance to the occupant. Punitive damages and damages for emotional distress may be awarded where there is fraud, malice, or other willful and wanton conduct present. Colorado Causes of Action at 34-1.
Waste is an ancient common law action that refers to any unauthorized destruction or severance of improvements, trees, minerals, or other property rights of an owner of property by a person who does not have title but was rightfully in possession. Examples of waste typically stem from mortgage and lease contracts and include destruction or use of land by a lessee. Under Colorado law, the elements for waste are:
(1) an act that constitutes waste;
(2) the actor is in rightful possession of the property; and
(3) injury to the property interest of another.
Remedies available for a successful waste claim include forfeiture of the property, an injunction, or monetary damages for the diminution in value to the property. Colorado Causes of Action at 34A-1.
39. Wrongful Death
Wrongful death actions are lawsuit brought on behalf of a decedent to recover against those who caused the death. In particular, a wrongful death action under Colorado law requires:
(1) the action be brought by a proper plaintiff;
(2) the death of the decedent was caused by the defendant’s wrongful act, neglect, or default; and
(3) the wrongful act, neglect, or default would have entitled the decedent to maintain an action and recover damages if death had not resulted.
In essence, a wrongful death action allows the plaintiff to step into the shoes of the decedent to recover for any injuries the decedent sustained. Accordingly, damages under a wrongful death action are similar to those the decedent would have been able to recover had he not died. In particular, a successful plaintiff may recover both economic damages and non-economic damages suffered by the plaintiff, including damages for grief, loss of companionship, emotional distress, and loss of quality of life. Punitive damages may also be recoverable where the circumstances are egregious enough to warrant them. Colorado Causes of Action at 35-1.
40. Wrongful Discharge
Under Colorado law, the default rule for employee-employer relationships is that they terminable at-will unless specifically provided otherwise, meaning that either party may terminate employment at any time for any reason. However, in spite of the ability to terminate an employee at-will, Colorado does recognize wrongful discharge claims where an employee may recover against the employer where she was terminated for a reason that contravenes public policy. In particular, under Colorado law a wrongful discharge claim requires the plaintiff show:
(1) the employer directed the employee to perform an illegal act or prohibited the employee from performing a public duty or exercising an important job-related right or privilege;
(2) the action directed by the employer would violate a specific statute relating to the public health, safety, or welfare, or would undermine a clearly expressed public policy relating to the employee’s basic responsibility as a citizen or the employee’s right or privilege as a worker;
(3) the employee was terminated for refusing to performing the act or for exercising the privilege which the employee was entitled to do; and
(4) the employer was aware or reasonably should have been aware that the employee’s refusal to comply with the order was based on the employee’s reasonable belief that the action ordered was illegal, contrary to clearly expressed statutory policy, or violative of the employee’s legal rights.
One example of a successful wrongful discharge claim includes a mechanic that was discharged for refusing to recommend fuel injector flushes to every vehicle at the direction of his employer when the process is only rarely necessary. The mechanic was able to recover against his employer in that situation because the directed action was unlawful because it violated Colorado’s Motor Vehicle Act and Colorado Consumer Protection Act, both of which make it unlawful to represent that certain repairs are necessary when they are not. Additional examples of valid wrongful discharge claims include refusing to help an employer defraud the government and filing a complaint with a regulatory board.
Damages for a successful wrongful discharge claim include compensatory damages and punitive damages where the circumstances are egregious enough to warrant them. Compensatory damages include economic damages for back pay, loss of future pay, loss of benefits, and related economic losses proximately resulting from discharge. Colorado Causes of Action at 36-1.
41. Unjust Enrichment
Unjust enrichment is a judicially created remedy and equitable claim designed to undo the benefit that comes at the unfair detriment of another. Specifically, under Colorado an unjust enrichment claim requires the plaintiff to show that:
(1) the defendant received a benefit;
(2) the benefit was at the plaintiff’s expense; and
(3) the benefit was received under circumstances that would make it unjust for the defendant to retain the benefit without commensurate compensation to the plaintiff.
Because unjust enrichment claims are equitable claims that focus on restitution only, they are frequently plead as alternative claims for breach of contract and associated types of claims in case those other claims fail. In effect, unjust enrichment asserts that while there may be no official contract, the defendant benefited at the expense of the plaintiff and it is unjust for the defendant to retain that benefit.
Notably, whether or not it is unjust for a defendant to retain the benefit is a factually intensive inquiry left to the trial court to decide, there are no specific requirements as to whether a party has been unjustly enriched. See Lewis v. Lewis, 189 P.3d 1134 (Colo. 2008).
42. Civil Theft
A claim for civil theft in Colorado is, in effect, a criminal theft claim brought as a private right of action in Colorado’s civil courts. In particular, Colorado’s criminal theft statute, C.R.S. § 18-4-401 provides that theft has occurred where:
(1) A person knowingly obtains, retains, or exercises control over anything of value of another without authorization or by threat or deception; or receives, loans money by pawn or pledge on, or disposes of anything of value or belonging to another that he or she knows or believes to have been stolen; and
(2) Intends to deprive the other person permanently of the use or benefit of the thing of value;
(3) Knowingly uses, conceals, or abandons the thing of value in such manner as to deprive the other person permanently of its use or benefit;
(4) Uses, conceals, or abandons the thing of value intending that such use, concealment, or abandonment will deprive the other person permanently of its use or benefit;
(5) Demands any consideration to which he or she is not legally entitled as a condition of restoring the thing of value to the other person; or
(6) Knowingly retains the thing of value more than seventy-two hours after the agreed-upon time of return in any lease or hire agreement.
Where criminal theft has occurred, the statute provides for a civil right of action whereby the aggrieved party is entitled to $200 or three times the actual property of the stolen property, whichever is greater, as well as attorney’s fees in pursuing the action. See C.R.S. § 18-4-405.
© 2016 J.D. Porter, LLC. Author: Jordan Porter. Denver, Colorado.