Punitive or Exemplary Damages in Colorado are designed to punish at-fault parties for outrageous or egregious conduct in order to deter others from committing the same conduct.
Unlike compensatory damages, such as:
- medical bills,
- lost wages, and
- lost earning capacity,
punitive damages are not based upon the losses a person suffered. Instead, they serve to:
- punish the wrongdoers, and
- serve as an example to others to deter similar behavior.
These damages are granted in addition to other damages a person receives at trial.
When to Ask for Punitive Damages
In Colorado, a person may not ask for punitive damages at the start of the case. A case is filed through the use of a “complaint,” which sets forth the general allegations of the accident or injury.
A person cannot seek punitive damages in the complaint in this state. Instead, the court must:
- ensure that there is evidence that is sufficient to allow for the possible recovery of punitive damages; and
- properly instruct the jury regarding that type of award.
When Punitive Damages Can Be Awarded
Punitive damages can be awarded when an injured person proves that the harm occurred as the direct result of:
- fraud
- malice, or
- willful or wanton conduct.
Fraud, Malice, & Willful or Wanton Conduct
In order to receive exemplary damages, a person must prove that one of three things occurred:
- Fraud: Fraud is a false representation of an important fact with the intent to deprive the victim of a legal right. This usually occurs through some form of trickery, deceit, or deception.
- Malice: Malice is the intent or desire to cause harm to another person without proper justification or excuse. It is a purposeful act designed to harm another human being and is considered especially reprehensible.
- Willful or Wanton Conduct: Willful or wanton conduct is acting with a reckless disregard for the health and safety of others, even knowing of the potential danger a person’s conduct poses to others around him or her.
How Much Can I Get?
That all depends on the facts of the individual case. Colorado law typically limits punitive damages so that they may not exceed the injured party’s actual or compensatory 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.
Below, our Colorado personal injury attorneys address frequently asked questions about punitive and exemplary damages in personal injury lawsuits and the injuries you may have suffered:
- 1. What are punitive or exemplary damages in Colorado?
- 2. When am I allowed to request exemplary damages?
- 2.1 How do I show the court I am allowed to seek a punitive award?
- 3. When can exemplary damages be awarded?
- 4. How much can I receive in exemplary damages in Colorado?
- 5. What evidence can the court and jury consider?
- 6. Is there anything the court or jury is not allowed to consider?
- 7. In what cases are punitive damages not awarded?
Punitive or Exemplary Damages in Colorado are designed to punish at-fault parties for outrageous or egregious conduct in order to deter others from committing the same conduct.
1. What are punitive or exemplary damages in Colorado?
Punitive or Exemplary Damages in Colorado are designed to punish at-fault parties for outrageous or egregious conduct in order to deter others from committing the same conduct.
Unlike compensatory damages, such as:
- medical bills,
- lost wages, and
- lost earning capacity,
punitive damages are not based upon the losses a person suffered. Instead, they serve to:
- punish the wrongdoers, and
- serve as an example to others to deter similar behavior.
These damages are granted in addition to other damages a person receives at trial.
1.1 What is the Colorado code section for exemplary damages?
CRS 13-21-102 is the Colorado code section dealing with exemplary damages and how they are to be handled.1
It sets forth the:
- rules for how to determine when such an award is appropriate;
- rules for when an injured party can ask for exemplary damages;2
- rules for determining the amount of the award; and
- rules for how to instruct the jury as to punitive damages.
2. When am I allowed to request exemplary damages?
In Colorado, a person may not ask for punitive damages at the start of the case. A case is filed through the use of a “complaint,” which sets forth the general allegations of the accident or injury.
A person cannot seek punitive damages in the complaint in this state. Instead, the court must:
- ensure that there is evidence that is sufficient to allow for the possible recovery of punitive damages; and
- properly instruct the jury regarding that type of award.3
Punitive damages are more common in gross negligence cases than in ordinary negligence cases.
2.1 How do I show the court I am allowed to seek a punitive award?
To establish a right to a punitive award, the injured party must present proof sufficient to establish a prima facie case of a triable issue.
This means there must be enough evidence to show that a claim for punitive damages is allowed to move forward. It does not have to be enough proof to actually receive this award at this early stage.
The court has the discretion to allow or not allow evidence to be put to the jury concerning exemplary damages.
3. When can exemplary damages be awarded?
Exemplary damages can be awarded when an injured person proves that the harm occurred as the direct result of
- fraud
- malice, or
- willful or wanton conduct.
3.1 What is fraud?
Fraud is:
- a false representation of an important fact
- with the intent to deprive the victim of a legal right.
Fraud usually occurs through some form of trickery, deceit, or deception.
To prove fraud, the injured party must prove:
- the false representation or statement was made;
- the defendant knew the representation to be false when it was made;
- the person to whom the defendant made the statement did not know the statement was false;
- the statement was made with the intent that it be acted upon; and
- the reliance on the statement damaged the injured party.4
3.2 What is malice?
Malice is:
- an intent or desire
- to cause harm to another person
- without proper justification or excuse.
It is a purposeful act designed to harm another human being and is considered especially reprehensible.
Malice can be proven by showing a person acted with an evil intent
- with the purpose of causing injury; or
- through the use of willful or wanton acts that led to the injury. 5
3.3 What is willful or wanton conduct?
Willful or wanton conduct is:
- acting with a reckless disregard
- for the health and safety of others
- even knowing of the potential danger a person’s conduct poses to others around him or her.6
A person who acts with “heedless indifference” to the consequences of his or her actions may face a punitive damage award against him or her.
4. How much can I receive in exemplary damages in Colorado?
That all depends on the facts of the individual case. Colorado law typically limits punitive damages so that they may not exceed the injured party’s actual or compensatory damages.7
Actual damages consist of:
- medical bills;
- lost income;
- loss of consortium;
- pain and suffering; and
- other economic or financial harm the injured party suffered.
Example: Kyle is driving on the highway headed to Denver when suddenly John slams his car into Kyle’s from behind. Come to find out, John has been smoking marijuana and drinking while driving. Kyle is severely injured in the accident and is left paralyzed for life. The jury awards him $1,000,000 in actual damages. Under the normal rule, Kyle cannot receive more in punitive damages than what was awarded for his actual damages.
4.1 Can the court increase the limit placed on exemplary awards?
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.8
4.2 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 which resulted in the award has ceased; or
- The purpose of such damages has otherwise been served.9
5. What evidence can the court and jury consider?
The court and jury can consider various evidence of the wrongdoer’s conduct, such as:
- the cause of the accident;
- purposeful acts by the defendant;
- whether a person was intoxicated;
- whether a person was committing a separate crime;
- personal history between the parties (especially to prove malice); and
- what the defendant knew about what his or her actions may cause.
This is not the only evidence the court may consider, and what is placed before the jury depends greatly on the individual case.
6. Is there anything the court or jury is not allowed to consider?
When a court or jury is considering reasonable punitive damage awards, neither may consider the:
- income of the wrongdoer; or
- that person’s net worth.
Evidence — like W-2s, income statements, or bank accounts — is impermissible at trial.
7. In what cases are punitive damages not awarded?
An award for punitive damages cannot be granted in:
- arbitration proceedings;
- administrative proceedings; or
- claims for breach of contract (in most cases).
Call us for help…
For questions about punitive and exemplary damages 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.
Legal References:
- CRS 13-21-102 (Exemplary Damages).
- CRS 13-21-102(1.5).
- Same as 2.
- Coors v. Security Life of Denver Ins. Co., 112 P.3d 59 (2005).
- Western Fire Truck, Inc. v. Emergency One, Inc., 134 P.3d 570 (2006) (“Exemplary damages are justified when the act causing the plaintiff’s injuries was performed with an evil intent, and with the purpose of injuring the plaintiff, or with such a wanton and reckless disregard of his rights as evidence a wrongful motive; “wanton and reckless conduct” is defined as conduct that creates a substantial risk of harm to another and is purposefully performed with an awareness of the risk in disregard of the consequences.”).
- A.B. ex rel. B.S. v. Adams-Arapahoe 28J School Dist., 831 F.Supp.2d 1226 (2011).
- CRS 13-21-102(1)(a).
- CRS 13-21-102(3).
- CRS 13-21-102(2).