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13-21-202. Action notwithstanding death

Text

When the death of a person is caused by a wrongful act, neglect, or default of another, and the act, neglect, or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then, and in every such case, the person who or the corporation which would have been liable, if death had not ensued, shall be liable in an action for damages notwithstanding the death of the party injured.

History

History.
Source: G.L. 878. G.S. 1031. R.S. 08: 2057. C.L. 6303. CSA: C. 50, 2. CRS 53: 41-1-2. C.R.S. 1963: 41-1-2.

Annotations

ANNOTATION

I.GENERAL CONSIDERATION.

Law reviews. For note, The Effect of the Wrongdoers Death Upon an Action for Wrongful Death, see 22 Rocky Mt. L. Rev. 99 . For comment discussing the interplay between actions brought pursuant to 42 U.S.C. 1983 and the state wrongful death statute, see 55 Den. L. J. 291 (1978). For article, Measures of Economic Loss in the Wrongful Death of a Child, see 14 Colo. Law. 392 (1985).

Primary purpose of the wrongful death statute is to compensate those who suffer a direct loss from the death. Barnhill v. Pub. Serv. Co., 649 P.2d 716 (Colo. App. 1982), affd, 690 P.2d 1248 (Colo. 1984).

No right of action existed at common law. No right of action for damages resulting from death through wrongful act or negligence was given by the common law, and such right exists only by virtue of this section. Hindry v. Holt, 24 Colo. 464, 51 P. 1002 (1897); Fish v. Liley, 120 Colo. 156, 208 P.2d 930 (1949); Taylor v. Welle, 143 Colo. 37, 352 P.2d 106 (1960).

Cause of action for wrongful death is created by statute. Mangus v. Miller, 35 Colo. App. 335, 535 P.2d 219, cert. dismissed, 189 Colo. 481, 569 P.2d 1390 (1975).

Since Colorado law does not recognize the existence of a wrongful death action other than that created and defined by statute, the special statute of limitations made part of this act applies to wrongful death actions arising from alleged medical malpractice, absent a specific, valid exception provided by the general assembly. Weedin v. United States, 509 F. Supp. 1052 (D. Colo. 1981).

Such action is separate and distinct from the action deceased would have had if he or she had survived, even though plaintiffs cause of action under the statute arises only if the deceased would have been entitled to bring an action had he or she survived. Mangus v. Miller, 35 Colo. App. 335, 535 P.2d 219, cert. dismissed, 189 Colo. 481, 569 P.2d 1390 (1975).

A plaintiffs right to pursue a wrongful death action is derived from and dependent upon the decedents right to have maintained an action had death not ensued. Crownover v. Gleichman, 38 Colo. App. 96, 554 P.2d 313 (1976), affd, 194 Colo. 48, 574 P.2d 497 (1977), cert. denied, 435 U.S. 905, 98 S. Ct. 1450, 55 L. Ed. 2d 495 (1978); Rowan v. Vail Holdings, Inc., 31 F. Supp. 2d 889 (D. Colo. 1998).

The constitutionality of this act has never been questioned. The general assembly had the undoubted authority to give certain representatives of deceased a right of action against the person causing his death by negligence or wrongful act. Vindicator Consol. Gold Mining Co. v. Firstbrook, 36 Colo. 498, 86 P. 313 (1906).

The statutory sections were enacted to preserve a right of action. This and the following section were enacted for the purpose of preserving to the surviving relatives designated in 13-21-201, a right of action that would have failed by the decease of the party injured. They are in aid of the common law, not in derogation thereof. Hayes v. Williams, 17 Colo. 465, 30 P. 352 (1892); Denver R. G. R. R. v. Frederic, 57 Colo. 90, 140 P. 463 (1914).

The wrongful death statute creates a claim for relief and an entitlement to damages for parties who have not themselves been directly injured by the actions of the tortfeasor. Espinoza v. ODell, 633 P.2d 455 (Colo. 1981), dismissed for want of jurisdiction, 456 U.S. 430, 102 S. Ct. 1865, 72 L. Ed. 2d 237 (1982).

Sections should receive a liberal construction. The provisions of this and the following section should unquestionably receive a liberal construction. Hayes v. Williams, 17 Colo. 465, 30 P. 352 (1892).

The death act is not in its essence a survival statute, but operates to create a new cause of action. Fish v. Liley, 120 Colo. 156, 208 P.2d 930 (1949).

Plaintiffs right of action under this section was in existence and inchoate at the time of the commission of the wrongful act by the tortfeasor resulting thereafter in the death of decedent. Fish v. Liley, 120 Colo. 156, 208 P.2d 930 (1949).

This section is remedial, the recovery being limited by 13-21-203 to the pecuniary loss resulting from the death to the party who may be entitled to sue. Hayes v. Williams, 17 Colo. 465, 30 P. 352 (1892); Clint v. Stolworthy, 144 Colo. 597, 357 P.2d 649 (1960).

The damages collectible under this section are compensatory only; pecuniary loss must be shown by those who bring the action. Rigot v. Conda, 134 Colo. 375, 304 P.2d 629 (1956); Denver R. G. W. R. R. v. Clint, 235 F.2d 445 (10th Cir. 1956); Mosley v. Prall, 158 Colo. 504, 408 P.2d 434 (1965).

A common carrier may properly be sued under either this or the preceding section. If this were not so, certain forms of negligence on the part of a common carrier, which are clearly not within the narrower limits of 13-21-101, could cause death without entailing any liability whatever, though any other kind of corporation would under the same conditions be held responsible by virtue of this section. Friedrichs v. Denver Tramway Corp., 93 Colo. 539, 27 P.2d 497 (1933).

The wrongful death statute did not create a right of action independent of the guest statute (repealed 42-9-101) but was subject to the limitations the latter imposed. Taylor v. Welle, 143 Colo. 37, 352 P.2d 106 (1960).

Any recovery under this section is controlled and must be distributed under the provisions of 13-21-201, this without regard to whether or not an heir entitled to share suffered damages. Clint v. Stolworthy, 144 Colo. 597, 357 P.2d 649 (1960).

The operative injury for purposes of a wrongful death action is the wrongful death itself; thus the $150,000 per injury damages cap in the Colorado Governmental Immunity Act does not apply separately to each party in a wrongful death action but rather to the wrongful death action as a whole. Steedle v. Sereff, 167 P.3d 135 (Colo. 2007).

Section 24-10-103 (2) defines an injury as including death; therefore, the operative injury for purposes of a wrongful death action is the wrongful death itself, and 24-10-114 (1)(a) limits damages to $150,000. Steedle v. Sereff, 167 P.3d 135 (Colo. 2007).

Action for wrongful death is property tort action. An action for wrongful death is an action which may be brought by certain named survivors of a decedent who sustain a direct pecuniary loss upon the death of the decedent. It is classified as a property tort action and cannot be classified as a tort action for injuries done to the person. Jones v. Hildebrant, 432 U.S. 183, 97 S. Ct. 2283, 53 L. Ed. 2d 209 (1977).

A constitutional claim based on an alleged deprivation of a mothers own rights, and not on deprivation of those of her son, is not for any property loss. Jones v. Hildebrant, 432 U.S. 183, 97 S. Ct. 2283, 53 L. Ed. 2d 209 (1977).

Asserted breach of warranty is a wrongful act. Since section refers to wrongful acts and not simply tortious acts, there is no basis for distinguishing between breaches of contractual duties and breaches of tort duties. Ayala v. Joy Mfg. Co., 580 F. Supp. 521 (D. Colo. 1984).

A child who is born alive and subsequently dies is a person within the meaning of this section. A wrongful death action may be maintained regardless of whether the child was viable at the time of the injury or whether the child was viable at the time of birth. Gonzales v. Mascarenas, 190 P.3d 826 (Colo. App. 2008).

Applicability of provisions to viable fetus. A wrongful death action may be maintained for the death of a viable fetus, particularly a full-term fetus. Espadero v. Feld, 649 F. Supp. 1480 (D. Colo. 1986).

Heirs of fatally-injured intoxicated person may not maintain wrongful death action against vendor of alcoholic beverages because 12-47-128.5 abolishes such actions by the consumers of alcohol and this statute permits heirs to maintain such actions only if the deceased could have done so had the deceaseds injuries not been fatal. Sigman v. Seafood Ltd. Pship I, 817 P.2d 527 (Colo. 1991).

Parents of a deceased convicted inmate may not maintain a wrongful death action against a jail because 24-10-106 (1.5)(a) excludes inmates who are incarcerated pursuant to a conviction at the time of their injury from the waiver of the Colorado Governmental Immunity Act and this statute permits injured parties to maintain wrongful death actions only if the deceased could have done so had the deceaseds injuries not been fatal. Duke v. Gunnison County, 2019 COA 170, 456 P.3d 38.

Wrongful death action based on theory of negligent entrustment is derivative and granting of summary judgment motion not proper because genuine issues of material fact remained to be determined. Casebolt v. Cowan, 829 P.2d 352 (Colo. 1992).

Applied in In re Estate of Daigle, 634 P.2d 71 (Colo. 1981); Dohaish v. Tooley, 670 F.2d 934 (10th Cir.), cert. denied, 459 U.S. 826, 103 S. Ct. 60, 74 L. Ed. 2d 63 (1982); Sager v. City of Woodland Park, 543 F. Supp. 282 (D. Colo. 1982).

II.NEGLIGENCE.

The breach of duty to be established under the statute is that owed by the tortfeasor to the deceased, not that owed to the heirs of the deceased. Espinoza v. ODell, 633 P.2d 455 (Colo. 1981), dismissed for want of jurisdiction, 456 U.S. 430, 102 S. Ct. 1865, 72 L. Ed. 2d 237 (1982).

In a wrongful death action, negligence is not presumed from the happening of an accident, although it may be inferred from the surrounding facts and circumstances. Ranke v. Fowler Real Estate Co., 30 Colo. App. 543, 497 P.2d 268 (1972).

Questions of fact are for the jury. In a wrongful death action where two equally plausible conclusions are deducible from the circumstances, the question is for the jury. Ranke v. Fowler Real Estate Co., 30 Colo. App. 543, 497 P.2d 268 (1972).

It is a question for the jury. As a matter of law it cannot be said that the negligence of deceased directly contributed to his death, and whether this was true as matter of fact is for the consideration of the jury to whom it is properly referred and by whom it is determined, in conformity with established principles of law. Kansas Pac. Ry. v. Twombly, 3 Colo. 125 (1876).

It is a matter of law when the facts are undisputed. In a wrongful death action, contributory negligence is a question of law for the court to determine when the facts are undisputed and reasonable men can draw but one inference from them. Ranke v. Fowler Real Estate Co., 30 Colo. App. 543, 497 P.2d 268 (1972).

For when contributory negligence should be decided as a matter of fact not law, see Dillon v. Sterling Rendering Works, 106 Colo. 407, 106 P.2d 358 (1940).

Contributory negligence is a defense. Recovery may be denied because of a deceased employees contributory negligence in failing to discover defects or weaknesses in machinery or appliances of which he had charge. Wells v. Coe, 9 Colo. 159, 11 P. 50 (1886); Willy v. Atchison, T. S. F. Ry., 115 Colo. 306, 172 P.2d 958 (1946).

It must be established like other defenses. The law does not presume contributory negligence; unless appearing in the proofs offered by plaintiff, it is a defense to be established as are other defenses. Platte Denver Canal Milling Co. v. Dowell, 17 Colo. 376, 30 P. 68 (1892).

Loss of a chance of survival theory of proximate causation. A plaintiff may recover damages when the defendants conduct was not the cause of the medical condition which caused the injury but did cause a substantial reduction in the plaintiffs chance of survival. Mays v. United States, 608 F. Supp. 1476 (D. Colo. 1985).

For proximate cause necessary for liability, see Ward v. United States, 208 F. Supp. 118 (D. Colo. 1962).

For case where proximate cause is lacking, see McMillan v. Hammond, 158 Colo. 40, 404 P.2d 549 (1965).

III.PLEADING AND PRACTICE.

Complaint held sufficient. Pierce v. Conners, 20 Colo. 178, 37 P. 721 (1894).

Plaintiff has burden of establishing prima facie right to punitive damages. When punitive damages are in issue and information is sought by the plaintiff relating to the defendants financial condition, justice requires no less than the imposition on the plaintiff of the burden of establishing a prima facie right to punitive damages. Leidholt v. District Court, 619 P.2d 768 (Colo. 1980).

Statute of limitations relating to death cases commences with time of injury. Ferrari, S.p.A. SEFAC v. District Court, 185 Colo. 136, 522 P.2d 105 (1974).

Exclusion of evidence held harmless. A wife sued road building contractors for the death of her husband alleged to have been caused by their failure to install sufficient warning signals at a road barrier as required by their contract. On the trial she offered the pertinent provisions of the contract in evidence, which were by the court excluded. The exclusion was harmless because plaintiffs right to sue and defendants liability were to be determined by the law of negligence and not by provisions of the contract. Lewis v. La Nier, 84 Colo. 376, 270 P. 656 (1928).

Admission of evidence not reversible error. Admission in evidence of statement of decedent that his family had turned him down, apparently offered on the theory that it tended to show that plaintiffs suffered no loss, if erroneous, was trivial and not reversible. Dwinelle v. Union Pac. R. R., 104 Colo. 545, 92 P.2d 741 (1939).

Permissible scope of discovery of defendants financial worth should include only material evidence of the defendants financial worth where a prima facie case for punitive damages has been made, and should be framed in such a manner that the questions proposed are not unduly burdensome. Leidholt v. District Court, 619 P.2d 768 (Colo. 1980).

Extent of discovery of defendants financial condition not unlimited. The extent of discovery of defendants financial condition, even after a prima facie case for punitive damages is made, is not unlimited. Leidholt v. District Court, 619 P.2d 768 (Colo. 1980).

Specific requests of detailed information may constitute harassment. Specific questions requesting detailed information regarding the defendants financial status may constitute unnecessary harassment. Leidholt v. District Court, 619 P.2d 768 (Colo. 1980).

Decedents ability to accumulate wealth and loss of earning capacity in a certain business are relevant in a wrongful death action when a material part of the heirs net pecuniary loss is based on the loss of increase in her anticipated inheritance and the estimates and opinions presented were sufficiently grounded in fact to be admissible and probative on the issue of the decedents earning capacity. Ford v. Bd. of County Commrs, 677 P.2d 358 (Colo. App. 1983), cert. dismissed, 679 P.2d 579 (Colo. 1984).

Objections to giving and refusing instructions held without merit in action under this section by parents for death of minor son. Windsor Reservoir Canal Co. v. Smith, 92 Colo. 464, 21 P.2d 1116 (1933).

This section relates only to wrongs done within the state, imposes no duty upon anyone not subject to its jurisdiction, and gives a right of action to persons without its jurisdiction only when they are injured by a wrong done within its jurisdiction. Patek v. Am. Smelting Ref. Co., 154 F. 190 (8th Cir. 1907).

The Colorado wrongful death statute does not attempt to give a right of action for wrongful death committed outside of Colorado. Stoltz v. Burlington Transp. Co., 178 F.2d 514 (10th Cir. 1949), cert. denied, 339 U.S. 929, 70 S. Ct. 628, 94 L. Ed. 1349 (1950); Estate of Murphy v. Colo. Aviation, Inc., 353 F. Supp. 1095 (D. Colo. 1973).

Lex loci governs where injury occurred outside state. In an action for wrongful death where the injury occurred outside of the state in which the action is brought, the amount of recovery is governed by the lex loci and not by the lex fori. Stoltz v. Burlington Transp. Co., 178 F.2d 514 (10th Cir. 1949), cert. denied, 339 U.S. 929, 70 S. Ct. 628, 94 L. Ed. 1349 (1950).

Mere disagreement with the amount of damages awarded is not a sufficient ground to overturn an award of damages which is supported by competent evidence in the record. Morrison v. Bradley, 655 P.2d 385 (Colo. 1982).