“Damage Caps” in Colorado Personal Injury Cases

A “damage cap” is a limitation on the amount of certain kinds of damages a person can receive in the State of Colorado.

Economic Damages

Colorado does not place damage caps on economic damages with the exception of medical malpractice and dram shop cases.

Economic damages are actual expenses, such as:

• medical bills;
• future medical bills;
• lost wages;
• lost earning capacity;
• rehabilitation costs; and
• property damage.

At trial, the jury may award compensation to an injured person for his or her injuries in the amount the jury believes covers all proven actual expenses.

Noneconomic Damages

There are damage caps placed on “noneconomic damages.” Noneconomic damages include:

• pain and suffering;
• loss of enjoyment;
• loss of consortium;
• mental anguish; or
• disfigurement.

The actual limit depends on the type of damages requested or the type of legal claim at issue.

Specific Damage Caps

There are caps in place in Colorado depending on the type of claim or type of damages:

• Medical Malpractice: $1,000,000 total damages, of which no more than $300,000 may be for pain and suffering.
• Pain and Suffering: $250,000 plus inflation, unless clear and convincing evidence, then up to $500,000 (plus inflation), and unless permanent physical impairment, in which case there is no cap.
• Dram Shop: $150,000 total recovery against tavern or bar per person injured.
• Wrongful Death: Pain & Suffering limited to $250,000 or $500,000, plus inflation, unless by medical negligence, then $300,000. No cap if the death was the result of a felonious killing.
• Punitive Damages: Punitive award may not exceed the actual damages awarded, unless the court determines certain criteria are met, then not to exceed 3 times the actual damages awarded.

Below, our Colorado personal injury attorneys address frequently asked questions about damage caps in personal injury lawsuits and the injuries you may have suffered:

• 1. What is a “damage cap” in the State of Colorado?
  • 1.1 Why does Colorado impose damage caps on personal injury claims?
• 2. What are economic damages?
  
  • 2.1 Why are damage caps not generally imposed on economic damages?
• 3. What are noneconomic damages?
  
  • 3.1 Why are damage caps usually imposed on noneconomic damage claims?
• 4. What are the damage caps in medical malpractice claims?
• 5. What are the damage caps on pain and suffering damages in Colorado?
  
  • 5.1 What is the “clear and convincing evidence” exception?
  • 5.2 Is there a cap if I suffered permanent physical impairment?
• 6. What are the damage caps in dram shop act cases in Colorado?
• 7. What are the damage caps in wrongful death cases?
  
  • 7.1 Is there an exception to the wrongful death damage caps?
• 8. What are the damage caps on punitive damages?
  
  • 8.1 Can the court increase the limit on punitive damages?
  • 8.2 Can the court reduce the amount the jury awards?
• 9. Is the jury told about the caps during the trial?

1. What is a “damage cap” in the State of Colorado?

A “damage cap” is a limitation on the amount of certain kinds of damages a person can receive in the State of Colorado.

A damage cap places a set limit on the maximum amount of damages a person can receive for particular damages. Many of the damage cap amounts are set at a particular number, “plus inflation.” To determine the particular limit in place at the time of your case, consult with an experienced Colorado personal injury attorney.

1.1 Why does Colorado impose damage caps on personal injury claims?

The purpose of a damage cap is to prevent verdicts from:

• getting out of control; and
• becoming a burden on the economy.

Whether damage caps actually do this, rather than just punishing injured victims, is open to debate. However, the legislature has imposed those limits regardless of whether they are fair.

2. What are economic damages?

There are not any damage caps placed on “economic damages” in Colorado with the exception of medical malpractice and dram shop cases.

Economic damages are actual expenses, such as:

• medical bills;
• future medical bills;
• lost wages;
• lost earning capacity;
• rehabilitation costs; and
• property damage.¹

At trial, the jury may award any amount it believes has been proven to compensate an injured person for his or her injuries.

2.1 Why are damage caps not generally imposed on economic damages?

Economic damages are considered to be more finite, and provable than noneconomic damages. As a result, there is less risk of “out of control” verdicts.

Further, it has been thought to be unfair to limit economic loss, when those are the actual damages a person sustained as the result of an accident or injury.

3. What are noneconomic damages?

“Noneconomic damages” include:

• pain and suffering;
• loss of enjoyment;
• loss of consortium;
• mental anguish; or
• disfigurement.²

Noneconomic loss or injury refers to:

nonpecuniary harm for which damages are recoverable by the person suffering the direct or primary loss or injury, including pain and suffering, inconvenience, emotional stress, and impairment of the quality of life.³

There are damage caps imposed on noneconomic damages. The actual limit depends on the type of damages requested or the type of legal claim at issue.

3.1 Why are damage caps usually imposed on noneconomic damage claims?

Noneconomic damage claims, e.g., pain and suffering, are less easily defined and are more often subject to the whim of a jury.

The Colorado legislature decided that caps would help protect the economy by preventing overly burdensome damage awards against defendants.⁴

4. What are the damage caps in medical malpractice claims?

Medical malpractice claims are unique in Colorado in that they are limited in both economic and noneconomic damages. Medical malpractice cases are given particular protection. Any tort action against:

• a health care professional; or
• a health care institution

is limited to $300,000 in non-economic damages. Non-economic damages can never exceed this amount for medical malpractice cases under Colorado law.⁵

Economic damages in medical malpractice claims are capped at $1,000,000 in most cases. However, if “good cause” is shown, the cap may be exceeded. This cap is usually only extended for cases with life-long injuries and long-term medical costs, which have been proven.⁶

5. What are the damage caps on pain and suffering damages in Colorado?

The cap for pain and suffering damages in most civil cases is $250,000, adjusted for inflation from the time the Colorado code section was adopted, which created the cap. ⁷

Adjustment depends on the date of your injury. Your attorney can help you understand the adjustment for inflation applicable to your case.

5.1 What is the “clear and convincing evidence” exception?

In civil cases that are not medical malpractice cases, if there is “clear and convincing evidence” that a higher award than $250,000 is justified, the amount can be increased to $500,000 (adjusted for inflation).

Most civil actions are proved by a “preponderance of the evidence,” a lower standard than clear and convincing.⁸

“Clear and convincing evidence” is an evidentiary standard of proof higher than “preponderance of the evidence,” yet not as high a standard of proof as is “beyond a reasonable doubt.” Clear and convincing evidence is established by showing that the truth of a contention is highly probable and free from serious or substantial doubt.⁹

5.2 Is there a cap if I suffered permanent physical impairment?

No. If a person suffers permanent physical impairment as the result of an accident, his or her pain and suffering damages are not capped under Colorado law.

There is not a widely accepted definition for permanent physical impairment under Colorado law. The bar, however, is high but can be cleared with experienced legal help.

6. What are the damage caps in dram shop act cases in Colorado?

A “dram shop” case occurs when a person is the victim of a drunk person, usually a drunk driver. The injured party can sue the driver, and in certain cases, he or she may also sue the establishment that served the alcohol to the drunk driver. These cases are extremely limited under Colorado law.

Any damages against a bar, tavern, or other place that sold alcohol is limited to $150,000 for all types of damages.¹⁰

7. What are the damage caps in wrongful death cases?

Wrongful death cases have caps that closely mirror other Colorado code sections. In wrongful death claims, damages are capped according to the type of claim. For instance:

• Pain & Suffering is capped at $250,000 (plus inflation) or $500,000 (plus inflation) upon a showing of clear and convincing evidence that it is appropriate. If pain and suffering stems from medical negligence, the damages are capped at $300,000.

• Economic Losses are not capped in wrongful death cases.

• If there is no widow, widower, minor children, or dependent mother or father, the damage cap is set at $250,000 (plus inflation) or, if clear and convincing evidence exists for a higher amount, at $500,000 (plus inflation).¹¹

7.1 Is there an exception to the wrongful death damage caps?

If the death is the result of a “felonious killing,” then no damage caps are imposed.

A “felonious killing” is defined as:

• the killing of a person;
• by an individual;
• who is convicted of, pleads guilty to, or enters a no-contest plea;
• to the crime of 1st degree murder, 2nd degree murder, or manslaughter.¹²

8. What are the damage caps on punitive damages?

Colorado law typically limits punitive damages so that they may not exceed the injured party’s actual or compensatory damages.¹³

Example: Fran is driving on the highway headed to Colorado Springs when suddenly Esther slams her car into Fran’s car on the driver’s side. Come to find out, Esther has been smoking marijuana and drinking while driving. Fran is severely injured in the accident and is left paralyzed for life. The jury awards her $1,000,000 in actual damages. Under the normal rule, Fran cannot receive punitive damages that are more than the actual damages awarded.

8.1 Can the court increase the limit on punitive damages?

The court is allowed to exceed the actual damages by up to 3 times the actual damages amount if it finds:

• the defendant has continued the behavior or repeated the action in a willful and wanton manner, either against the plaintiff or another person or persons, during the time the case is occurring; or

• the defendant has acted in a willful and wanton manner during the pendency of the action in a manner that has further aggravated the damages of the plaintiff when the defendant knew or should have known such action would produce aggravation.¹⁴

8.2 Can the court reduce the amount the jury awards?

The court is allowed to reduce the amount of punitive damages the jury chooses to award.

The judge can do so if he or she finds that:

• the deterrent effect of the damages has been accomplished; or
• the conduct that resulted in the award has ceased; or
• the purpose of such damages has otherwise been served.¹⁵

9. Is the jury told about the caps during the trial?

The jury is not made aware of the damage caps during the trial and will not know about them during deliberation. If the jury awards a victim more than the applicable cap, the judge will limit the amount of recoverable damages.

Example: Franklin is involved in a car accident, which was caused by Barb. The jury awards him $700,000 in pain and suffering damages, but he did not suffer permanent physical disfigurement. Franklin’s damages will be capped by the judge at $250,000 (adjusted for inflation).

Call us for help…

For questions about damage caps in personal injury cases or to confidentially discuss your case with one of our skilled Colorado personal injury attorneys, do not hesitate to contact us.

We represent clients in and around Denver, Colorado Springs, Aurora, Fort Collins, Lakewood, and several nearby cities.

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