Assumption of the Risk Defense in Colorado

Assumption of the Risk is a legal defense in Colorado that:

  • shifts liability for injury
  • to a person who voluntarily engages in
  • sports or another risky activity.

Modified Comparative Fault

Uniquely, under Colorado law, an assumption of the risk defense is treated as part of the State's modified comparative fault determination in a personal injury lawsuit.

Colorado uses a modified comparative fault rule when figuring out how damages are awarded and adjusted. Adjustments are made based on how much the plaintiff was at fault for his or her own injuries, if at all.

Personal injury law

1. What is the assumption of the risk defense in Colorado?

Assumption of the Risk is a legal defense in Colorado that:

  • changes the apportionment of liability,
  • to an individual who voluntarily chooses to participate in,
  • sports or other higher risk activities.[1]

1.1 What is an affirmative defense?

Assumption of the risk is considered an "affirmative defense" in this State. That means that it must be:

  • raised as a defense
  • during the course of the lawsuit, usually in the defendant's answer (the document which responds to the plaintiff's complaint)
  • in order to be effective.

If the defense is not properly raised, it is waived, meaning it will not be used to protect the defendant from liability.

2. How is this defense defined under Colorado law?

A person assumes the risk if he or she:

  • voluntarily or unreasonably exposes him or herself
  • to injury or damage
  • with knowledge or appreciation of the danger and risk involved.2

This defense helps to negate the general duty of care required under Colorado negligence laws and, therefore, prevents liability on the part of the defendant.

2.1 When will the doctrine not apply to my case?

If another party violated the law or unreasonably increased the risks to the injured party, he or she will not be able to use assumption of the risk as a defense to liability.

Example: Samson attends a baseball game, and sits in "foul ball territory" in the hope of catching a ball for his son. If Samson were hit in the face with a foul ball and suffered a broken nose, he will likely be found to have assumed the risk of attending the baseball game. However, if instead an angry baseball player lobbed his baseball bat into the crowd after a "bad call," and it hit Samson, this is not an "inherent risk" and the doctrine would not apply.

3. What is modified comparative fault?

An assumption of the risk defense is incorporated into the State's modified comparative fault decision.

Colorado uses a modified comparative fault rule when determining  how money damages are to be awarded or changed. Changes are made based on how much the injured party was at fault for his or her own injuries, if at all.[3]

Example: If a plaintiff is 10% at fault for his or her injuries, the damages awarded to him or her by a jury will be reduced by 10%. However, if a plaintiff is 50% or more at fault for his or her injuries, that plaintiff is not entitled to recover at all. The jury makes the decision about who was at fault and by what percentage.

In other states, an assumption of the risk defense may be a complete bar to recovery if the jury finds the plaintiff assumed the risk. In Colorado, however, it is simply a part of determining how much fault to apportion to each party in the lawsuit.

4. What is a liability waiver?

In some cases, a person:

  • signs an agreement
  • to waive a claim for negligence
  • as the result of injuries caused
  • from engaging in certain activities.4

These are called "liability waivers." Colorado law has historically disfavored these types of agreements, but this is beginning to change.

4.1 When will a court enforce a liability waiver?

A court will consider four factors to determine if a liability waiver should be enforced:

  1. the existence of a duty to the public;
  2. the nature of the service performed;
  3. whether the contract was fairly entered into; and
  4. whether the intent of the parties is express in clear and unambiguous language.5

If the waiver is enforceable, this is treated much like an assumption of the risk, but may also be a complete bar to recovery, unless the responsible party engaged in:

  • gross negligence; or
  • willful and wanton conduct.

Colorado courts are still skeptical of these waivers, and with the right attorney by your side, you can challenge the enforceability of the waiver to obtain financial compensation for your injuries.

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Call us for help...

For questions about the assumption of the risk defense 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. (For a discussion of the law in California or Nevada, please see our articles on assumption of the risk law in California and assumption of the risk under Nevada law.)

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

Legal References:

  1. Harris v. The Ark, 810 P.2d 226 (1991).
  2. CRS 13-21-111.7 (Assumption of risk--consideration by trier of fact).
  3. CRS 13-21-111 (Negligence cases--comparative negligence as measure of damages).
  4. 7 COPRAC 13:3 (Exculpatory agreements).
  5. B & B Liver, Inc. v.Riehl, 960 P.2d 134 (Colo. 1998).

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