Robbins: Statutory caps and how they work
A cap goes on the top. This high and no higher.
Think of a baseball cap that goes on the top of your head. What fits below is substance; above you, only sky.
Sometimes, law is like that too.
You see, in law, there are caps too, at least at times there are, but legal caps relate to damages rather than to wool, cotton or stiff cardboard brim. So, at law, what exactly is a “damage?”
In civil cases, damages are the “remedy” that a party requests that the court award in order to try to make the injured party whole. Typically, damage awards are in the form of monetary compensation to the harmed party. Damages are imposed if the court finds that a party breached a duty under contract or violated some right. “Civil” cases, as we have discussed before in other columns, are distinct from criminal actions. The goal in criminal cases is punishment; in civil actions, the aim is usually to come away with monetary damages. A “remedy,” like in pharmacology, is what makes you better.
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Hollywood — and, perhaps popular perception — notwithstanding, in many instances, damages are limited or “capped.” This much, but no more. Even on the defendant’s worst day in a courtroom — or, conversely, the plaintiff’s best — damages in certain circumstances may not exceed a prescribed statutory amount.
A couple of examples here might help.
We have talked before of governmental immunity.
The Colorado Governmental Immunity Act pertains to claims in tort against governmental bodies and/or government employees. First to understanding then, is understanding what, precisely, is a “tort.” It is also necessary to grasp the concept of “sovereign immunity” to understand how the Colorado Act amends it.
A “tort” (which, fittingly, derives from the Latin word “torque” which means “to twist”) is a private civil (as opposed to criminal) wrong or injury. The three elements of which every tort is comprised are: the existence of a legal duty to the party injured; breach of that duty; and damage to the injured party resulting directly from (or as a natural consequence of) the breach. As but one example, when I drive my car on the public roads, I undertake a duty of care to all whom I encounter. If I breach that duty, say by inattention while texting on my cell phone, and ram the bejeesus out of the car in front of me, causing it (and/or the persons in it) harm, since the damage flows directly from the breach of my duty of care, I will likely be held liable in tort.
A “sovereign” is a chief or ruler. “Sovereign immunity,” then, is a concept which holds that the ruler is immune from certain liabilities to which the rest of us are held.
“Sovereign immunity” is the doctrine that precludes a litigant from asserting an otherwise meritorious claim against a sovereign. Historically, the federal and state governments (and, derivatively, cities and towns) were absolutely immune from tort liability arising from activities that were governmental in nature. Most jurisdictions (including Colorado in 1972) have abandoned this doctrine in favor of permitting tort actions with certain limitations and restrictions. Thus is the nature and character of the Colorado Governmental Immunity Act; it permits, by statute, certain tort actions to proceed against the government with, however, certain restrictions, limitations and strictly held requirements — in other words, with “caps.” You may get this much, but not a pennyweight more.
In other words, the maximum amount which may be recovered is limited (that is, “capped”) and is likely less than if you were suing anyone other than the government.
Wading in a bit more deeply, there are damages and then there are damages. The plain vanilla kind are “compensatory” — those that make one whole. But there may be other kinds of damages as well; punitive damages (those meant to punish outrageous conduct) are but one example.
Similarly, there may be caps in other circumstances as well. Take the Colorado Wrongful Death Act which provides that economic and noneconomic damages may be recovered in a wrongful death suit. Economic damages refer to compensation for objectively verifiable monetary losses such as past and future medical expenses, loss of past and future earnings, loss of use of property, costs of repair or replacement, the economic value of domestic services, and loss of employment or business opportunities. “Noneconomic” damages, on the other hand, refer to compensation for subjective, non-monetary losses such as pain and suffering, inconvenience, emotional distress, loss of companionship, and loss of enjoyment of life. And it is these latter damages that are capped under the Act.
Usually, there is no limit on economic damages. However, in Colorado, non-economic damages are capped at $250,000 plus inflation (currently the inflation-adjusted cap amount is more than $600,000). As in most things, there are, of course, exceptions where the damage caps may be greater or lower (such as in medical malpractice cases or when exemplary damages are appropriate). But speaking generally, the amount that may be recovered is this high but no higher.
Are caps fair?
Well, it’s policy. And if one wants to be on the playing field, one has to know the rules.
Rohn K. Robbins is an attorney licensed before the Bars of Colorado and California who practices Of Counsel in the Vail Valley with the Law Firm of Caplan & Earnest, LLC. His practice areas include business and commercial transactions; real estate and development; family law, custody, and divorce; and civil litigation. Robbins may be reached at 970-926-4461 or at Rrobbins@CELaw.com. His novels, “How to Raise a Shark (an apocryphal tale),” “The Stone Minder’s Daughter,” and “Why I Walk so Slow” are currently available at fine booksellers everywhere; coming soon, “He Said They Came From Mars.”
