2023 Colorado Revised Statutes › Title 13 - COURTS AND COURT PROCEDURE (§§ 13-1-101 — 13-100-104) › DAMAGES AND LIMITATIONS ON ACTIONS (§§ 13-21-101 — 13-21-1409) › Article 21 - DAMAGES (§§ 13-21-101 — 13-21-1409) › Part 1 - GENERAL PROVISIONS (§§ 13-21-101 — 13-21-133) › Section 13-21-111.5 - Civil liability cases - pro rata liability of defendants - respondeat superior - shifting financial responsibility for negligence in construction agreements - legislative declaration

(1)
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)
(a)
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.
(b)
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.
(c)
In enacting this subsection (1.5), it is the intent of the general assembly to reverse the holding in
Ferrer v. Okbamicael
, 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.
(2)
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.
(3)
(a)
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.
(b)
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.
(4)
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).
(5)
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.
(6)
(a)
The general assembly hereby finds, determines, and declares that:
(I)
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;
(II)
The provisions of this subsection (6) will promote competition and safety in the construction industry, thereby benefitting Colorado consumers;
(III)
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;
(IV)
It is the intent of the general assembly that the duty of a business to be responsible for its own negligence be nondelegable;
(V)
Construction businesses must be able to obtain liability insurance in order to meet their responsibilities;
(VI)
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;
(VII)
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.
(b)
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.
(c)
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.
(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.
(II)
This subsection (6) also does not apply to builder's risk insurance.
(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.
(II)
"Construction agreement" does not include:
(A)
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
(B)
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.
(f)
Nothing in this subsection (6) shall be construed to:
(I)
Abrogate or affect the doctrine of respondeat superior, vicarious liability, or other nondelegable duties at common law;
(II)
Affect the liability for the negligence of an at-fault party; or
(III)
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.
(g)
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.
Amended by 2021 Ch. 147,§1, eff. 9/7/2021.
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. .
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.
2021 Ch. 147, was passed without a safety clause. See Colo. Const. art. V, § 1(3).