THE COLORADO WRONGFUL DEATH ACT: DAMAGES AND RECOVERY
Claims for wrongful death are mainly concerned with damages and who has “standing” (the legal ability to sue) under the Colorado Act. Therefore, there are no “elements of liability” like there are for other civil causes of action; rather, recovery is premised upon proof of some underlying tort that either directly or indirectly led to the death of another. In other words, wrongful death is a derivative action. For more information, give us a call at 720-441-3328 or complete a consultation request form.
WHAT IS THE COLORADO WRONGFUL DEATH ACT?
The sole mechanism for recovery on a wrongful death claim in Colorado is through the Colorado Wrongful Death Act. The Act creates two types of actions where death is caused by negligence (for our practice area page on negligence, click here). In all wrongful death cases, the plaintiff is required to elect one type upon which to proceed (in other words, a plaintiff may not recover under both theories of relief). As you will notice, one of them is much more appealing (and commonly used) compared to the other.
TYPE 1 – PENAL ACTION
The first (and rarely used) type is the “penal action,” which is available where death is caused by a common carrier.A common carrier, for purposes of this type of wrongful death claim, is a corporation or individual(s) who owns, manages, employs, or otherwise oversees some form of public transportation.
Wrongful deaths involving common carriers may be brought under either of the following circumstances:
- When any person dies from the negligence, unskillfulness, or criminal intent of any officer, agent, servant or employee, while running, conducting, or managing any locomotive, car, or train of cars, or of any driver of any coach or other conveyance operated for the purpose of carrying either freight or passengers for hire; or
- When any passenger dies from a defect or insufficiency in any railroad, locomotive, car, or other conveyance operated for the purpose of carrying freight or passengers for hire.
In this type of wrongful death action, specified common carriers are required to forfeit not more than $10,000 and not less than $3,000 for every person and passenger who dies from injury under either of the aforementioned circumstances. While the penal provision provides some relief, most wrongful death actions that arise from common carriers will nonetheless elect to use the second method of relief due to the fact that all death claims are objectively worth more than $10,000.
TYPE 2 – GENERAL COMPENSATION
The second method of relief is the sole mechanism for wrongful death recovery in situations that do not involve common carriers.
Where the death is caused by a wrongful act, neglect, or default of another and the tortfeasor's conduct would have entitled the deceased to maintain an action to recover damages if the death had not ensued, then the tortfeasor is liable for damages notwithstanding the death of the injured party.
This type of action generally allows recovery for economic and noneconomic damages up to the statutory cap. In 1989, when the Act was enacted, the statutory cap was $ 250,000 unless the decedent left a widow, widower, minor children, or dependent father or mother. Today, the statutory cap, adjusted for inflation (“AFI”), is $ 571,870. Importantly, the statutory cap does not include any potential punitive damages for willful and wanton conduct (for more information on punitive damages, click here). However, if the decedent leaves one or more dependents, his or her heirs may recover their full, uncapped net economic loss in addition to the $ 250,000 (AFI) cap on noneconomic damages.
In lieu of providing evidence of various categories of noneconomic damages, the Wrongful Death Act allows a plaintiff to elect, in writing, to sue for a “solatium” in the amount of $ 50,000 (AFI). If a plaintiff recovers solatium, he or she is also entitled to recover economic damages and reasonable funeral and burial expenses. However, a plaintiff may not elect solatium and also recover any noneconomic damages.
RECOVERY AND DAMAGES FOR WRONGFUL DEATH
Regardless of which of the two wrongful death actions is elected, a plaintiff must meet the standing requirements proscribed in the Colorado Wrongful Death Act. In order to recover under either type of action, a plaintiff must fall into one of five categories:
- The spouse of the deceased;
- The heir or heirs of the deceased (with or without the spouse);
- The decedent's designated beneficiary (with or without the spouse);
- The decedent's parent or parents (if the deceased is unmarried and without descendants or a designated beneficiary); or
- Parents of a baby (who dies after birth as a result of prenatal injuries).
All wrongful death actions must be brought within two years after the date of death. It does not matter if the underlying tort has a different statute of limitations; in order to recover for wrongful death, the Wrongful Death Act controls.
As mentioned earlier, if a plaintiff elects general compensation, then he or she will be able to recover economic and noneconomic losses.
For purposes of wrongful death, economic damages include:
- Reasonable funeral, burial, internment, or cremation expenses;
- Any net financial loss which the plaintiff has had because of the death of the decedent.
“Net financial loss” is the same as the financial benefit the plaintiff might reasonably have expected to receive from the decedent had he or she lived.
Noneconomic damages for wrongful death include past, present, and future:
- Loss of companionship;
- Impairment of the quality of life;
- Pain and suffering;
- Emotional stress.
In determining economic and noneconomic damages, a jury will consider:
- The age, health, and life expectancy of the decedent;
- The age, health, and life expectancy of the plaintiff;
- The decedent's industriousness, ability to earn money, and willingness to assist the plaintiff; and
- The nature of the relationship between the decedent and the plaintiff.
Wrongful death is an important and nuanced theory of recovery in Colorado. At Volpe Law, our attorneys are ready to help you with your potential claim/defense: give us a call at 720-441-3328 or complete a consultation request form for more information on how we can help!
 Whitenhill v. Kaiser Permanente, 940 P.2d 1129 (Colo. App. 1997).
 C.R.S. § 13-21-203(1).
 See Denver & Rio Grande R.R. v. Frederic, 57 Colo. 90, 140 P. 463 (1914).
 C.R.S. § 13-21-201(1).
 C.R.S. § 13-21-202.
 See C.R.S. §13-21-203.7 (allowing for the effect of inflation).
 C.R.S. §13-21-203(3)(a).
 Lanahan v. Chi Psi Fraternity, 175 P.3d 97 (Colo. 2008).
 C.R.S. § 13-21-203.7. The current inflation-adjusted amount recoverable is $ 114,370.
 C.R.S. § 13-21-203.5.
 C.R.S. §13-21-201(1).
 Gonzales v. Mascarenas, 190 P.3d 826 (Colo. App. 2008).
 C.R.S. §§13-80-102(d)(1), 13-80-108(2).
 C.R.S. §13-80-102(1).
 CJI §10:3.
The information contained on this website is provided for informational purposes only. It is not legal advice and should not be construed as providing legal advice on any subject matter. Laws frequently change and therefore this content is not necessarily up to date, nor comprehensive. Contact us or another attorney with any legal questions specific to your matter. You may request a consultation by completing our consultation request form.