Are Punitive Damages Recoverable in a Colorado Personal Injury Action?

In personal injury cases, punitive damages, which are often referred to in Colorado law as “exemplary damages,” are not intended to compensate the plaintiff but rather to punish the defendant for egregious or reckless conduct and deter the wrongdoer and others from similar outrageous conduct in the future.  Colorado requires evidence of “fraud, malice, or willful and wanton conduct” for recovery of exemplary damages.  The statute goes on to define “willful and wanton conduct” as conduct “purposefully committed which the actor must have realized as dangerous, done heedlessly and recklessly, without regard to consequences, or of the rights and safety of others, particularly the plaintiff.”
 
While simple negligence will not support an award of exemplary damages, repeated failure to correct a known dangerous condition may convert mere negligence into wanton and reckless disregard. Cases in which Colorado courts have upheld punitive damage awards include:

• A case where a man sustained catastrophic injuries when a motorist who was driving while drinking and smoking marijuana hit him while he was changing the oil on his wife’s car in the family’s driveway.
• A case involving a repairer who fell from a ladder at a store while repairing a neon sign and there was evidence that on at least three prior occasions, the store was notified of a dangerous situation involving the repair of the sign.

Limits on the Amount of Punitive Damages Recoverable

Colorado law places a cap on the amount of exemplary damages recoverable. The award cannot exceed the amount awarded for “actual damages.” That is, if a plaintiff is awarded $100,000 for compensatory damages, he can recover up to an additional $100,000 for exemplary damages. There are exceptions, however, in which the court may increase the award of exemplary damages to up to three times the amount of actual damages. This is often referred to as “treble” damages and may be awarded by Colorado courts in two situations:

• Where the defendant has continued the behavior or repeated the action which is the subject of the claim in a willful and wanton manner, either against the plaintiff or another person; or
• Where the defendant has acted in a willful and wanton manner which has further aggravated the damages of the plaintiff when the defendant knew or should have known such action would produce aggravation.

How to Request Exemplary Damages

Colorado law does not allow a plaintiff to claim punitive damages in the initial complaint, Rather, plaintiff must first establish, through the initial discovery phase, that there is a “triable issue” on the question of exemplary damages.  It is then up to the court to decide whether plaintiff can amend the complaint to include a claim for exemplary damages and seek additional discovery on the issue.  

Where to Get Help

If you have been injured by the negligence or wrongful conduct of another and believe you may be entitled to recover exemplary damages, contact a personal injury lawyer to discuss your case today.