Robbins: The Colorado Wrongful Death Act
Any death is a tragedy.
Perhaps more so when it is unexpected, compounded further by another’s negligence, neglect or inattention.
While the law certainly cannot raise those sadly taken, what it can do is help provide for those left behind to pick up the pieces of their shattered lives. While the law affords an imperfect substitution for the joy, humor, and companionship of those taken, it can at the least help put bread on the table, keep a roof over the heads of the survivors, and ensure that their lives are not further devastated by financial loss.
In Colorado, the Wrongful Death Act (C.R.S. §§13-21-201 through 204), sets the parameters by which a claim for wrongful death may be pursued. Under the act, certain limitations, restrictions and procedures are imposed. For example, only certain persons with defined relationships with the departed may recover for their loss and what may be recovered is constrained.
First, though, in the eyes of the law, as all deaths in a sense seem “wrongful,” what exactly constitutes a “wrongful death?” It may be defined as a death caused by the wrongful conduct of another. While not necessarily criminal misconduct (although it certainly can be), a “wrongful death” occurs when the other party’s neglect, inattention, actions, inactions, and/or misconduct lead causally to a death. “Causal” in legal terms means that there is a direct connection between the act and the result.
“Economic damages” are recoverable under the act but, depending upon the specific facts of the case, they may be limited. While funeral expenses are always recoverable, what is “iffier” is what else may be, depending on the particular circumstances of the victim. Say, the victim was a student. While perhaps all the more tragic — his or her whole life was stretched out ahead of him and denied from her — the economic damages are likely to be minimal.
A young person/student likely has little or no income and no dependents. Since the intent of the statute is to replace (at least economically) what was lost, a significant recovery for economic loss in such circumstances will almost certainly be minimal.
Say, however, on the other hand, that the victim was a 40-year-old orthopedic surgeon with a wife and kids, substantial income, and the hope and expectation of another 25 years or so that both he and his family had expected his support. In such circumstances, the damages will likely be significant. While it may seem that this is valuating one life more richly than another, it is in fact in recognition that what the law intends — however imperfectly — to replace what (at least economically) has been denied to the survivors.
As a practical matter, the economic loss of a young student compared to a high-earning physician will bear little relation to one another and, as such, the recoverable damages will track that. The family of the student will get little; the family of the doc will likely be compensated much, much more.
What else may be available under the act is what’s referred to as “non-economic” damages. Non-economic damages represent compensation for intangibles. Unlike economic losses which are subject to mathematical calculation, projection and analysis, “non-economic” losses are such things as the emotional stress and suffering the loss has caused and while the psychic pain of loss may be considerable, damages are capped.
Total non-economic recovery against all defendants in a wrongful death suit will almost certainly be capped at $598,350. Why this seemingly random amount? It is a function of how the statute (amended to include non-economic damages in 1989) was written. While the cap was originally $250,000, the statute contemplated cost-of-living adjustments and so, over time, has grown to the current odd amount.
Under the act, a single death constitutes a single injury that is collectively shared by all heir-plaintiffs. Therefore, because of the explicit limitations in section 13-21-203(1)(a) of the act, total noneconomic recovery against all defendants will be limited to the current adjusted cap amount. All bets are off, however, when there is felonious misconduct and/or felonious killing.
Under the Act (Section 13-21-203(1)(a)), the non-economic damages cap can be lifted “[if] the wrongful act, neglect, or default causing death constitutes a felonious killing, as defined in section 15-11-803(1)(b) … and as determined in the manner described in section 15-11-803(7).
Section 15-11-803(1)(b) defines felonious killing as “…the killing of the decedent by an individual who, as a result thereof, is convicted of, pleads guilty to, or enters a plea of nolo contendere to the crime of murder in the first or second degree or manslaughter…” The statute further provides for the removal of the non-economic damages cap, and the definition of a felonious killing, as one resulting from vehicular manslaughter (i.e., an unintended, reckless, death by car).
Where the party causing the death is found to have acted with “willful or wanton misconduct” (i.e., intentionally and/or with extreme indifference to a risk of injury to another that is known or should have been known), exemplary damages (those meant to punish and/or make an example of) may also be available.
Fitting the square pegs of the facts into the round holes of the law is often challenging but the applicable act is meant to function as a guidepost and blueprint for actions brought when a loved one meets a wrongful and untimely death and sets the parameters within which the survivors’ claims for legal relief may properly be brought.
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. He 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 Barnes and Noble & Amazon.com.