TORT LAW

Tort Law

Tort Law

Statutes of Limitations

Any medical malpractice action must be brought within two years after the date the injury and its cause were known or should have been known with the exercise of reasonable diligence. Colo. Rev. Stat. Ann. §§ 13-80-102.5 and 13-80-108 (West 1997). In no event may a medical malpractice action be brought more than three years after the act or omission that gave rise to the action, unless the malpractice was knowingly concealed, the act or omission consisted of leaving an unauthorized foreign object in the body of the claimant, or both the physical injury and its cause are not known or could not have been known through the exercise of reasonable diligence. Colo. Rev. Stat. Ann. § 13-80-102.5 (West 1997).

A minor has at least until his eighth birthday to file. Id. If the claimant is a mental incompetent or under other legal disability at the time the cause of action accrues, the action may be brought within two years from the removal of the disability or the period fixed by the applicable limitations period, whichever expires later. Colo. Rev. Stat. Ann. §§ 13-81-101 and 13-81- 103 (West 1997).

Contributory or Comparative Negligence

Colorado has adopted by statute a modified form of comparative negligence. Colo. Rev. Stat. Ann. § 13-21-111 (West 1997). The statute says that the contributory negligence of a claimant will not bar recovery if the claimant's negligence was less than the defendant's negligence. Id. This could be interpreted to require the claimant to be compared individually with each defendant in a multi-defendant case.

Joint and Several Liability

Generally, defendants in personal injury or wrongful death cases are not liable for an amount larger than that percentage of the judgment equal to the percentage of fault attributable to them. Colo. Rev. Stat. Ann. § 13-21-111.5 (West 1997). If, however, the defendants conspired to pursue a common plan or design to commit the tortious act, they will be held jointly liable. Id. The fault of non-parties is considered in the calculation of each defendant's percentage of fault if they have settled or if a defendant has given notice that he intends to blame a non-party. Id.

Contribution

Defendants held jointly liable have a right of contribution. Colo. Rev. Stat. Ann. § 13-21-111.5 (West 1997). A right of contribution exists only in favor of a tortfeasor who has paid more than his pro rata share of the common liability. Id. The joint tortfeasors' relative degrees of fault must ...