CO Code § 13-21-111.5 (2021)
2021 Colorado Code|Title 13 - Courts and Court Procedure|Article 21 - Damages|Part 1 - General Provisions|§ 13-21-111.5. Civil Liability Cases - Pro Rata Liability of Defendants - Respondeat Superior - Shifting Financial Responsibility for Negligence in Construction Agreements - Legislative Declaration

  In an action brought as a result of a death or an injury to person or property, no defendant shall be liable for an amount greater than that represented by the degree or percentage of the negligence or fault attributable to such defendant that produced the claimed injury, death, damage, or loss, except as provided in subsection (4) of this section. (1.5)   Notwithstanding any provision of subsection (1) of this section to the contrary, when an employer or principal acknowledges vicarious liability for an employee's or agent's negligence, a plaintiff's direct negligence claims against the employer or principal are not barred. A plaintiff may bring such claims, and conduct associated discovery, in addition to claims and discovery based on respondeat superior.    Consistent with current law, nothing in this subsection (1.5) permits a plaintiff to recover compensatory and exemplary damages more than once for the same injury.    In enacting this subsection (1.5), it is the intent of the general assembly to reverse the holding in , 390 P.3d 836 (Colo. 2017), that an employer's admission of vicarious liability for any negligence of its employees bars a plaintiff's direct negligence claims against the employer.       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 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.      Any provision of the law to the contrary notwithstanding, the finder of fact in a civil action may consider the degree or percentage of negligence or fault of a person not a party to the action, based upon evidence thereof, which shall be admissible, in determining the degree or percentage of negligence or fault of those persons who are parties to such action. Any finding of a degree or percentage of fault or negligence of a nonparty shall not constitute a presumptive or conclusive finding as to such nonparty for the purposes of a prior or subsequent action involving that nonparty.    Negligence or fault of a nonparty may be considered if the claimant entered into a settlement agreement with the nonparty or if the defending party gives notice that a nonparty was wholly or partially at fault within ninety days following commencement of the action unless the court determines that a longer period is necessary. The notice shall be given by filing a pleading in the action designating such nonparty and setting forth such nonparty's name and last-known address, or the best identification of such nonparty which is possible under the circumstances, together with a brief statement of the basis for believing such nonparty to be at fault. Designation of a nonparty shall be subject to the provisions of section 13-17-102. If the designated nonparty is a licensed health-care professional and the defendant designating such nonparty alleges professional negligence by such nonparty, the requirements and procedures of section 13-20-602 shall apply.       Joint liability shall be imposed on two or more persons who consciously conspire and deliberately pursue a common plan or design to commit a tortious act. Any person held jointly liable under this subsection (4) shall have a right of contribution from his fellow defendants acting in concert. A defendant shall be held responsible under this subsection (4) only for the degree or percentage of fault assessed to those persons who are held jointly liable pursuant to this subsection (4).    In a jury trial in any civil action in which contributory negligence or comparative fault is an issue for determination by the jury, the trial court shall instruct the jury on the effect of its finding as to the degree or percentage of negligence or fault as between the plaintiff or plaintiffs and the defendant or defendants. However, the jury shall not be informed as to the effect of its finding as to the allocation of fault among two or more defendants. The attorneys for each party shall be allowed to argue the effect of the instruction on the facts which are before the jury.      The general assembly hereby finds, determines, and declares that:   It is in the best interests of this state and its citizens and consumers to ensure that every construction business in the state is financially responsible under the tort liability system for losses that a business has caused;    The provisions of this subsection (6) will promote competition and safety in the construction industry, thereby benefitting Colorado consumers;    Construction businesses in recent years have begun to use contract provisions to shift the financial responsibility for their negligence to others, thereby circumventing the intent of tort law;    It is the intent of the general assembly that the duty of a business to be responsible for its own negligence be nondelegable;    Construction businesses must be able to obtain liability insurance in order to meet their responsibilities;    The intent of this subsection (6) is to create an economic climate that will promote safety in construction, foster the availability and affordability of insurance, and ensure fairness among businesses;    If all businesses, large and small, are responsible for their own actions, then construction companies will be able to obtain adequate insurance, the quality of construction will be improved, and workplace safety will be enhanced.       Except as otherwise provided in paragraphs (c) and (d) of this subsection (6), any provision in a construction agreement that requires a person to indemnify, insure, or defend in litigation another person against liability for damage arising out of death or bodily injury to persons or damage to property caused by the negligence or fault of the indemnitee or any third party under the control or supervision of the indemnitee is void as against public policy and unenforceable.    The provisions of this subsection (6) shall not affect any provision in a construction agreement that requires a person to indemnify and insure another person against liability for damage, including but not limited to the reimbursement of attorney fees and costs, if provided for by contract or statute, arising out of death or bodily injury to persons or damage to property, but not for any amounts that are greater than that represented by the degree or percentage of negligence or fault attributable to the indemnitor or the indemnitor's agents, representatives, subcontractors, or suppliers.      This subsection (6) does not apply to contract clauses that require the indemnitor to purchase, maintain, and carry insurance covering the acts or omissions of the indemnitor, nor shall it apply to contract provisions that require the indemnitor to name the indemnitee as an additional insured on the indemnitor's policy of insurance, but only to the extent that such additional insured coverage provides coverage to the indemnitee for liability due to the acts or omissions of the indemnitor. Any provision in a construction agreement that requires the purchase of additional insured coverage for damage arising out of death or bodily injury to persons or damage to property from any acts or omissions that are not caused by the negligence or fault of the party providing such additional insured coverage is void as against public policy. (d) (I) This subsection (6) does not apply to contract clauses that require the indemnitor to purchase, maintain, and carry insurance covering the acts or omissions of the indemnitor, nor shall it apply to contract provisions that require the indemnitor to name the indemnitee as an additional insured on the indemnitor's policy of insurance, but only to the extent that such additional insured coverage provides coverage to the indemnitee for liability due to the acts or omissions of the indemnitor. Any provision in a construction agreement that requires the purchase of additional insured coverage for damage arising out of death or bodily injury to persons or damage to property from any acts or omissions that are not caused by the negligence or fault of the party providing such additional insured coverage is void as against public policy.    This subsection (6) also does not apply to builder's risk insurance.         As used in this subsection (6) and except as otherwise provided in subparagraph (II) of this paragraph (e), “construction agreement” means a contract, subcontract, or agreement for materials or labor for the construction, alteration, renovation, repair, maintenance, design, planning, supervision, inspection, testing, or observation of any building, building site, structure, highway, street, roadway bridge, viaduct, water or sewer system, gas or other distribution system, or other work dealing with construction or for any moving, demolition, or excavation connected with such construction. (e) (I) As used in this subsection (6) and except as otherwise provided in subparagraph (II) of this paragraph (e), “construction agreement” means a contract, subcontract, or agreement for materials or labor for the construction, alteration, renovation, repair, maintenance, design, planning, supervision, inspection, testing, or observation of any building, building site, structure, highway, street, roadway bridge, viaduct, water or sewer system, gas or other distribution system, or other work dealing with construction or for any moving, demolition, or excavation connected with such construction.    “Construction agreement” does not include:   A contract, subcontract, or agreement that concerns or affects property owned or operated by a railroad, a sanitation district, as defined in section 32-1-103 (18), C.R.S., a water district, as defined in section 32-1-103 (25), C.R.S., a water and sanitation district, as defined in section 32-1-103 (24), C.R.S., a municipal water enterprise, a water conservancy district, a water conservation district, or a metropolitan sewage disposal district, as defined in section 32-4-502 (18), C.R.S.; or    Any real property lease or rental agreement between a landlord and tenant regardless of whether any provision of the lease or rental agreement concerns construction, alteration, repair, improvement, or maintenance of real property.          Nothing in this subsection (6) shall be construed to:   Abrogate or affect the doctrine of respondeat superior, vicarious liability, or other nondelegable duties at common law;    Affect the liability for the negligence of an at-fault party; or    Abrogate or affect the exclusive remedy available under the workers' compensation laws or the immunity provided to general contractors and owners under the workers' compensation laws.       Choice of law. Notwithstanding any contractual provision to the contrary, the laws of the state of Colorado shall apply to every construction agreement affecting improvements to real property within the state of Colorado.        Ferrer v. Okbamicael  History. Source: L. 86: Entire section added, p. 680, § 1, effective July 1. L. 87: (1) amended and (4) and (5) added, p. 551, § 1, effective July 1. L. 90: (3)(b) amended, p. 863, § 3, effective July 1. L. 2007: (6) added, p. 446, § 1, effective July 1. L. 2021: (1.5) added,(HB 21-1188), ch. 147, p. 863, § 1, effective September 7.    Editor's note:   Section 2(2) of chapter 147 (HB 21-1188), Session Laws of Colorado 2021, provides that the act changing this section applies to civil actions commenced on or after September 7, 2021.   ANNOTATION   Law reviews. For article, “New Role for Nonparties in Tort Actions -- The Empty Chair”, see 15 Colo. Law. 1650 (1986). For article, “Negligent Entrustment”, see 16 Colo. Law. 642 (1987). For article, “Joint and Several Liability: A Case for Reform”, see 64 Den. U. L. Rev. 651 (1988). For article, “Designation of Immune, Nonliable and Unknown Nonparties”, see 22 Colo. Law. 31 (1993). For article, “Designating Immune Nonparties: Fair Or Foul?”, see 22 Colo. Law. 759 (1993). For article, “Application of the Pro Rata Liability, Comparative Negligence and Contribution Statutes”, see 23 Colo. Law. 1717 (1994). For comment, “Settlements with Nonparties: A Closer Look at Colorado's Collateral Source and Contribution Statutes”, see 66 U. Colo. L. Rev. 195 (1995). For article, “Overview of Comparative Fault”, see 29 Colo. Law. 95 (July 2000). For article, “Fifteen Years of Colorado Legislative Tort Reform: Where Are We Now?”, see 30 Colo. Law. 5 (Feb. 2001). For article, “Health Care Litigation in Colorado: A Survey of Recent Decisions”, see 30 Colo. Law. 91 (Aug. 2001). For article, “The Impact of Tort Reform on Product Liability Litigation in Colorado”, see 30 Colo. Law. 91 (Nov. 2001). For article, “Theories of Homebuilder Liability for Subcontractor Negligence Part I”, see 34 Colo. Law. 69 (June 2005). For article, “S.B. 07-087 and the Enforceability of Indemnification Provisions in Colorado Construction Contracts”, see 36 Colo. Law. 5 9 (Sept. 2007). For article, “Additional Insured and Insured Contract Liability Insurance Coverage for General Contractors”, see 36 Colo. Law. 45 (Nov. 2007). For article, “Deconstructing Construction Defect Fault Allocation and Damages Apportionment Part I”, see 40 Colo. Law. 37 (Nov. 2011). For article, “Unique Construction Defect Damages Mitigation Issues”, see 44 Colo. Law. 33 (Feb. 2015). For article, “Contribution and Indemnification Among Multiple Infringers”, see 44 Colo. Law. 49 (May 2015). For article, “Application of the Pro Rata Liability Statute to ‘Tort Claims in a Contractual Wrapper '”, see 45 Colo. Law. 37 (June 2016). For article, “Mitigating Potential Condo Conversion and Renovation Construction Defect Liabilities: Part 2”, see 48 Colo. Law. 40 (May 2019). For article, “Indemnification Provisions in Commercial Contracts: A Drafting Primer”, see 49 Colo. Law. 28 (Jan. 2020).   Pro rata liability statute does not violate due process, as it provides plaintiffs notice and an opportunity to be heard regarding nonparties' alleged fault and there is a rational basis between the means utilized by the statute and the legitimate state purpose of adjusting the inequitable common law rule of joint and several liability. Salazar v. Am. Sterlizer Co., 5 P.3d 357 (Colo. App. 2000).   The primary purpose of this section was to abolish the harsh effects of joint and several liability. Watters v. Pelican Intern., Inc., 706 F. Supp. 1452 (D. Colo. 1989 ); Moody v. A.G. Edwards & Sons, Inc., 847 P.2d 215 (Colo. App. 1992); Miller v. Byrne, 916 P.2d 566 (Colo. App. 1995).   The adoption of this statute was intended to cure the perceived inequity under the common law concept of joint and several liability whereby wrongdoers could be held fully responsible for a plaintiff's entire loss, despite the fact that another wrongdoer, who was not held accountable, contributed to the result. Barton v. Adams Rental, Inc., 938 P.2d 532 (Colo. 1997); Loughridge v. Goodyear Tire & Rubber Co., 207 F. Supp. 2d 1187 (D. Colo. 2002 ).   Provisions of this section are not limited to negligence actions. Rather, it specifically applies to “an action brought as a result of . . . an injury to person or property.” Such actions may include, for example, a strict products liability action. O'Quinn v. Wedco Tech., Inc., 746 F. Supp. 38 (D. Colo. 1990 ); Miller v. Byrne, 916 P.2d 566 (Colo. App. 1995).   The general assembly clearly intended that this section apply to product liability actions. Loughridge v. Goodyear Tire & Rubber Co., 207 F. Supp. 2d 1187 (D. Colo. 2002 ).   The use of the word “action” in subsection (1) indicates that the statute is applicable to non-tort claims. Loughridge v. Goodyear Tire & Rubber Co., 207 F. Supp. 2d 1187 (D. Colo. 2002 ).   Pro rata liability applies to product liability claims. Loughridge v. Goodyear Tire & Rubber Co., 207 F. Supp. 2d 1187 (D. Colo. 2002 ).   This section does not differentiate between intentional acts and negligent acts in its mandate to apportion liability among tortfeasors. The general assembly intended that liability may be apportioned not only between negligent tortfeasors, but also between a negligent tortfeasor and an intentional tortfeasor. Thus, the provisions of this section apply even when one of several tortfeasors commits an intentional tort that contributes to an indivisible injury. Harvey v. Farmers Ins. Exch., 983 P.2d 34 (Colo. App. 1998), aff'd sub nom. Slack v. Farmers Ins. Exch., 5 P.3d 280 (Colo. 2000).   A loss of consortium claim qualifies as an “action brought as a result of a death or an injury to person or property” under subsection (1), and thus, the apportionment rules contained in this statute apply to such claim. Harvey v. Farmers Ins. Exch., 983 P.2d 34 (Colo. App. 1998), aff'd sub nom. Slack v. Farmers Ins. Exch., 5 P.3d 280 (Colo. 2000).   Term, “attributable,” as used in this section, means assignable, ascribable, or imputable in the sense of an obligation or duty. While nonparties who are immune from suit may properly be designated, those who owed no duty to the plaintiff may not. Miller v. Byrne, 916 P.2d 566 (Colo. App. 1995).   In a negligence by omission case, the factors to be considered in determining whether the law should impose a duty are the risk, foreseeability, and likelihood of injury weighed against the social utility of the actor's conduct, the magnitude of the burden of guarding against the injury, and the consequences of placing that burden on the defendant. Whitlock v. Univ. of Denver, 712 P.2d 1072 (Colo. App. 1985), rev'd on other grounds, 744 P.2d 54 (Colo. 1987).   Pro rata liability of defendants and plaintiff must be ascertained before applying statutory cap on noneconomic damages in cases involving multiple defendants or where plaintiff is partially at fault. Gen. Elec. Co. v. Niemet, 866 P.2d 1361 (Colo. 1994).   Defendant cannot be held liable for more than its pro rata share of damages even where it is permissible to exceed the damages cap. Hoffman v. Ford Motor Co., 690 F. Supp. 2d 1179 (D. Colo. 2010 ).   The limitation of joint and several liability under this section is irrelevant in applying the setoff amounts and limits of uninsured and underinsured coverage under § 10-4-609 (5) , where an insurer under that section may offset against the uninsured and underinsured limits the amount received by the insured from all parties liable for the injuries. Farmers Ins. Exch. v. Star, 952 P.2d 809 (Colo. App. 1997); Am. Family Mut. Ins. Co. v. Murakami, 169 P.3d 192 (Colo. App. 2007).   Defendant must properly designate a nonparty in a pleading which complies with the requirements of this section in order for a court to allow the finder of fact to consider the negligence or fault of such nonparty. Thompson v. Colo. & Eastern R.R. Co., 852 P.2d 1328 (Colo. App. 1993); Chavez v. Parkview Episcopal Med. Ctr., 32 P.3d 609 (Colo. App. 2001).   Evidence that a nonparty's acts or omissions were the cause of injuries is admissible even if the nonparty at fault has not been designated under this section. A defense that the defendant did not cause the plaintiff's injuries is not equivalent to the designation of a nonparty because it cannot result in apportionment of liability, but rather is a complete defense if successful. Danko v. Conyers, 2018 COA 14 , 432 P.3d 958.   Subsection (3)(b) expressly permits a court to accept nonparty designations filed outside the 90-day period when it determines that a “longer period is necessary”, so the provisions of C.R.C.P. 6(b)(2) concerning demonstration of “excusable neglect” do not apply. Antolovich v. Brown Group Retail, Inc., 183 P.3d 582 (Colo. App. 2007).   Instruction informing jury that an emergency room physician who treated plaintiff had the exclusive authority to either admit or discharge plaintiff was properly denied because plaintiff had failed to designate the emergency room physician as a responsible nonparty pursuant to this section, and such an instruction could have confused or misled the jury. Sheron v. Lutheran Med. Ctr., 18 P.3d 796 (Colo. App. 2000).   This section does not accommodate post-trial motions. Where defendant had knowledge of former co-defendants' settlements with plaintiffs before trial, defense counsel should have alerted the court that former co-defendants' proportionate fault would be an issue when the judgment was rendered. Montoya v. Grease Monkey Holding Corp., 883 P.2d 486 (Colo. App. 1994).   The effect of this proportionate liability statute on the goal of full recovery of the federal Financial Institutions Reform, Recovery, and Enforcement Act of 1989 is minimal and does not necessitate the formulation of a uniform national law of joint and several liability. Therefore this statute is not preempted by a federal common law rule of joint and several liability. Resolution Trust Corp. v. Heiserman, 856 F. Supp. 578 (D. Colo. 1994 ).   Since the federal Americans with Disabilities Act, the Fair Housing Amendments Act, and the Rehabilitation Act of 1973 do not provide for comparative fault, subsection (1) does not apply to federal question claims brought pursuant to those statutes. Roe v. Hous. Auth. of City of Boulder, 909 F. Supp. 814 (D. Colo. 1995 ).   Section not exclusive remedy. Nothing in the language of this section indicates it is intended to be the exclusive mechanism for litigating the relative fault of all joint tortfeasors. A claim for contribution may be made under § 13-50.5-102 when a party has not been formally designated in the action under this section. Watters v. Pelican Intern., Inc., 706 F. Supp. 1452 (D. Colo. 1989 ).   Defendants designation of non-parties by category held not the “best identification” possible under the circumstances and therefore stricken. Federal Deposit Ins. Corp. v. Isham, 782 F. Supp. 524 (D. Colo. 1992 ).   Section does not apply to cases commenced prior to the enactment of the section. Mladjan v. Pub. Serv. Co., 797 P.2d 1299 (Colo. App. 1990).   Section does not apply in conservatorship cases that do not involve actions brought as a result of negligence or another tort. This title 13 is intended to contemplate limitations on damages in actions brought as a result of negligence or another tort, and subsection (1) does not contemplate surcharge proceedings at issue in a conservatorship case. In Interest of Becker, 2017 COA 114 , 405 P.3d 499.   Exemplary damages are not subject to reduction by application of the comparative negligence statute. Lira v. Davis, 832 P.2d 240 (Colo. 1992).   And a solatium award recoverable by a wrongful death plaintiff is not subject to reduction by operation of this section. B.G.'s, Inc. v. Gross, 23 P.3d 691 (Colo. 2001); Smith v. Vincent, 77 P.3d 927 (Colo. App. 2003).   This section does not permit a recovery against a defendant on a joint/concerted action theory for cases filed after July 1, 1986 and before July 1, 1987. Voelker v. Cherry Creek Sch. Dist. 5, 840 P.2d 353 (Colo. App. 1992).   This section has the effect of eliminating liability of a physician for the negligent acts of another physician absent a showing that the physicians “acted in concert”, as provided in subsection (4), or that the physicians were in an employment, partnership, or joint venture relationship with one another. Freyer v. Albin, 5 P.3d 329 (Colo. App. 1999).   This section does not abrogate the well-established rule that partners are jointly and severally liable for the wrongs of the partnership, absent an explicit and express revision of § 7-60-113 by the Colorado legislature. Bank of Denver v. Se. Capital Grp., Inc., 763 F. Supp. 1552 (D. Colo. 1991 ).   Section does not abrogate the statute under which an individual partner can be held vicariously liable for wrongful acts or omissions of a partner in the ordinary course of partnership business. Hughes v. Johnson, 764 F. Supp. 1412 (D. Colo. 1991 ).   This section does not apply to a lawsuit filed prior to July 1, 1986, and amended pleading relating back to filing of lawsuit prior to July 1, 1986, does not make this section applicable to the lawsuit. Halliburton v. Pub. Serv. Co., 804 P.2d 213 (Colo. App. 1990).   The abolition of joint and several liability by this section does not extinguish a defendant's right to contribution from joint tortfeasors. The language of § 13-50.5-102 does not evince an intention by the general assembly to require a defendant to establish both joint liability and several liability as a prerequisite to the defendant's right of contribution. A defendant is permitted to establish the several liability of one or more parties as a cause of the same injury to the plaintiff. Graber v. Westaway, 809 P.2d 1126 (Colo. App. 1991).   Joint and several liability may be imposed where the tortious act is based on negligence or the breach of fiduciary duty of due care or loyalty. Resolution Trust Corp. v. Heiserman, 898 P.2d 1049 (Colo. 1995).   Joint and several liability may be imposed based on evidence of a course of conduct from which a tacit agreement to act in concert can be implied. Resolution Trust Corp. v. Heiserman, 898 P.2d 1049 (Colo. 1995).   The elements of civil conspiracy are that: (1) Two or more persons; (2) come to a meeting of the minds; (3) on an object to be accomplished or a course of action to be followed; (4) and one or more overt unlawful acts are performed; (5) with damages as the proximate result thereof. Jet Courier Serv., Inc. v. Mulei, 771 P.2d 486 (Colo. 1989); Loughridge v. Goodyear Tire & Rubber Co., 192 F. Supp. 2d 1175 (D. Colo. 2002 ).   The elements necessary to find aiding and abetting liability do not, as a matter of law, include the elements necessary to find joint liability under subsection (4). Anstine v. Alexander, 128 P.3d 249 (Colo. App. 2005), rev'd on other grounds, 152 P.3d 497 (Colo. 2007).   To impose joint liability, jury must be required to find that defendants consciously and deliberately pursued a common plan or design to commit a tortious act. Jury could find that defendants engaged in conduct that lent substantial assistance so as to have aided and abetted another, yet did not conspire with another and knowingly pursue a common plan to commit a civil wrong. Anstine v. Alexander, 128 P.3d 249 (Colo. App. 2005), rev'd on other grounds, 152 P.3d 497 (Colo. 2007).   Under subsection (3)(b), “[p]ersons against whom recovery is sought” includes designated nonparties. Painter v. Inland/Riggle Oil Co., 911 P.2d 716 (Colo. App. 1995); Barton v. Adams Rental, Inc., 938 P.2d 532 (Colo. 1997).   Even a person who is immune from suit may be a nonparty designee so long as the person owes a duty of care to the injured plaintiff. Doering ex rel. Barrett v. Copper Mtn., Inc., 259 F.3d 1202 (10th Cir. 2001).   When a landowner is vicariously liable under the nondelegability doctrine for acts or omissions of other defendants, the trial court should instruct the jury to determine the respective shares of fault of the landowner and the other defendants. But, in entering a judgment, the court shall aggregate the fault of the landowner with any other defendants for whom the landowner is vicariously liable. Reid v. Berkowitz, 2013 COA 110 M, 315 P.3d 185.   Designation of unidentified or unknown party allowed where the designation alleged a sufficient basis for believing the nonparty to be wholly or partially at fault. Pedge v. RM Holdings, Inc., 75 P.3d 1126 (Colo. App. 2002).   Parental immunity does not bar designation as nonparty under this section. It does not undermine the policy of qualified parental immunity to forbid the allocation of financial responsibility for the otherwise non-recoverable negligence of that parent to another defendant. Paris ex rel. Paris v. Dance, 194 P.3d 404 (Colo. App. 2008).   That negligence of parent is not imputable to child does not bar parent's nonparty designation under this section. Nonparty designation concerns the independent negligence of a parent; it does not attribute the negligence of the parent to the child. Paris ex rel. Paris v. Dance, 194 P.3d 404 (Colo. App. 2008).   A nonparty fault designation based only on vicarious liability is insufficient to establish nonparty's fault. Just in Case Bus. Lighthouse v. Murray, 2013 COA 112 M, 383 P.3d 1, aff'd in part and rev'd in part on other grounds, 2016 CO 47M, 374 P.3d 443.   As used in subsection (4), “tortious act” means any conduct other than breach of contract that constitutes a civil wrong and causes injury or damages; therefore, any negligent conduct resulting in injury or damage is sufficient to give rise to joint liability. Resolution Trust Corp. v. Heiserman, 898 P.2d 1049 (Colo. 1995); Loughridge v. Goodyear Tire & Rubber Co., 192 F. Supp. 2d 1175 (D. Colo. 2002 ).   There is no basis to assume that by using the term “tortious act” in subsection (4) the general assembly intended to exclude one or more forms of wrongful conduct from the scope of that term. Thus, “tortious act” encompasses any wrongful conduct. Resolution Trust Corp. v. Heiserman, 898 P.2d 1049 (Colo. 1995); Double Oak Constr., L.L.C. v. Cornerstone Dev. Int'l, L.L.C., 97 P.3d 140 (Colo. App. 2003).   Both negligent and intentional acts are sufficient to give rise to joint liability for purposes of subsection (4). Loughridge v. Goodyear Tire & Rubber Co., 192 F. Supp. 2d 1175 (D. Colo. 2002 ).   There need not be a “specific intent” to commit a tortious act for the actors to be subject to joint liability. Resolution Trust Corp. v. Heiserman, 898 P.2d 1049 (Colo. 1995).   Nonparty's acts need not be the same as those of a defendant to reduce the defendant's liability under this section. Except to the extent joint liability is retained in subsection (4), this section establishes a pure several liability regime under which liability for an injury caused by separate torts, as well as by separate tortfeasors, may be apportioned among the persons responsible. Moody v. A.G. Edwards & Sons, Inc., 847 P.2d 215 (Colo. App. 1992).   Subsection (4) does not require an express agreement to cause injury in order to sustain a claim for civil conspiracy. Schneider v. Midtown Motor Co., 854 P.2d 1322 (Colo. App. 1992); Loughridge v. Goodyear Tire & Rubber Co., 192 F. Supp. 2d 1175 (D. Colo. 2002 ).   The evidence must reveal some indicia of an agreement sufficient to prove that the defendants consciously conspired and deliberately pursued a common plan or design that resulted in a tortious act. Loughridge v. Goodyear Tire & Rubber Co., 192 F. Supp. 2d 1175 (D. Colo. 2002 ).   Therefore, summary judgment not appropriate where there is a question as to whether the requisite nexus existed that would establish a tacit agreement between a car dealer, in its various forms, and its agents to provide vehicles to “dangerous,” “mean” driver, who injured plaintiff, in exchange for payment in cash and motivation for repeat business. Schneider v. Midtown Motor Co., 854 P.2d 1322 (Colo. App. 1992).   The tort of negligent entrustment can constitute the predicate “tortious act” required to establish joint liability pursuant to subsection (4). Schneider v. Midtown Motor Co., 854 P.2d 1322 (Colo. App. 1992).   Section 13-50.5-105 does not apply to reduce a defendant's liability under subsection (4). The joint liability provision, as the more recently enacted statute, must be deemed controlling to the extent of any inconsistency. Pierce v. Wiglesworth, 903 P.2d 656 (Colo. App. 1994); Toothman v. Freeborn & Peters, 80 P.3d 804 (Colo. App. 2002).   Plaintiff's fault may not reduce an intentional tortfeasor's liability. Toothman v. Freeborn & Peters, 80 P.3d 804 (Colo. App. 2002).   Colorado approaches an attorney's breach of implied warranty as a hybrid of the standard tort claim for malpractice, sounding in negligence, and subject to this proportionate liability statute. Fed. Deposit Ins. Corp. v. Clark, 978 F.2d 1541 (10th Cir. 1992).   In a negligence action, a nonparty designation will be struck unless evidence demonstrating a prima facie case of nonparty liability is set forth. Stone v. Satriana, 41 P.3d 705 (Colo. 2002); Anstine v. Alexander, 128 P.3d 249 (Colo. App. 2005), rev'd on other grounds, 152 P.3d 497 (Colo. 2007).   Where defendants did not present expert testimony or any other evidence to establish the duty of care applicable to nonparty attorneys, defendants failed to establish a prima facie case of negligence. Anstine v. Alexander, 128 P.3d 249 (Colo. App. 2005), rev'd on other grounds, 152 P.3d 497 (Colo. 2007).   Designation of a plaintiff's current legal counsel as a nonparty in a legal malpractice action by opposing counsel is subject to strong public policy considerations and opposing counsel must allege a cognizable malpractice claim. In determining whether designation of current counsel is appropriate, the court evaluated: The danger of joining successor counsel as either a nonparty or third-party as an unfair litigation tactic; the adverse effect it would have on the client's ability to pursue a malpractice action; and the interference such designation would have on attorney-client confidences. Stone v. Satriana, 41 P.3d 705 (Colo. 2002).   There is no legal duty for a legal malpractice plaintiff's counsel to ameliorate the injury effected by predecessor counsel. Stone v. Satriana, 41 P.3d 705 (Colo. 2002).   A failure to appeal can never be a failure to mitigate damages caused by malpractice at trial. Litigation is too uncertain and costly to impose such a duty on a party. Stone v. Satriana, 41 P.3d 705 (Colo. 2002).   There being no concerted action by the two tortfeasors, the trier of fact must apportion negligence or fault between them. While defendant's negligence ultimately combined with the actions of another party to cause plaintiff's loss, there is no support for the proposition that the parties consciously conspired and deliberately pursued a common plan to commit a tortious act or to cause the loss. The court does not perceive that it is possible to conspire to be negligent. Messler v. Phillips, 867 P.2d 128 (Colo. App. 1993).   Even though the imposition of costs is required by this section, the apportionment of costs among multiple defendants is not prescribed. It remains at the discretion of the court. Bohrer v. DeHart, 943 P.2d 1220 (Colo. App. 1996), rev'd on other grounds, 961 P.2d 472 (Colo. 1998).   Trial court erroneously computed the compensatory damages to which plaintiff was entitled by setting off amounts that plaintiff had received from settling defendants from the gross compensatory damage award for the breach of warranty and misrepresentation claims. Sprung v. Adcock, 903 P.2d 1224 (Colo. App. 1995).   Erroneous jury instruction. Negligence per se jury instruction on alleged nonparty's statutory violation should not have been given when there was no evidence that another person or vehicle was involved. Ramirez v. Mixsooke, 907 P.2d 617 (Colo. App. 1994).   District court's failure to provide the jury with computational verdict forms in compliance with this section was error. The error was harmless, however, because the court properly instructed the jury on apportionment of damages, and the verdict forms did not demonstrate that the jury ignored the instructions. Bohrer v. DeHart, 961 P.2d 472 (Colo. 1998).   Where plaintiff seeks damages for aggravation of a pre-existing condition, the doctrine of apportionment should be applied in conjunction with determining pro rata liability. Conduct that originally created the condition cannot be prorated with conduct that aggravated the condition. The jury must apportion damages between those arising from the pre-existing condition and those arising from aggravation of the condition. Pro rata liability then provides the method for determining legal responsibility for the damages after they are separated. Fried v. Leong, 946 P.2d 487 (Colo. App. 1997).