Kimberley Hoff 25 Oct.

2012 PAR 116 Negligence - Defenses In potential negligence cases where the plaintiffs actions may have in some way been responsible for what happened, in order to determine if a case may be brought and what its chances of success might be for the plaintiff (a significant concern for this plaintiff, as prison inmates may lose privileges for filing frivolous lawsuits against the government in Colorado1), first one must determine whether the jurisdiction the case would be heard in operates on contributory or comparative negligence logic. Most common law jurisdictions, including Colorado, now employ comparative negligence2. Under this scheme, the defendant may claim negligence on the part of the plaintiff as an affirmative defense only if the plaintiff was more negligent and thus more responsible for his own damages than the defendant3. Unlike contributory negligence schemes, this form of comparative negligence still allows the moreinnocent-than-guilty plaintiff recovery but reduces the amount that would have been awarded with no plaintiff negligence in proportion with the plaintiffs determined percent responsibility4. The last clear chance doctrine, where the last person who had the obvious opportunity to avert disaster is the one who bears the liability, also does not apply under comparative negligence5. So, in the case of the Limon Prison inmate, a judge or jury would have to find the Prison to be more at fault than the inmate but the fact that the most proximate cause of the electrocution was the inmate himself would not necessarily prevent the case from going forward. Assumption of risk would likely not be an effective alternative defense in this case--the inmate presumably knew that touching a light socket with dangling wires was dangerous but being left in complete darkness would also be dangerous (and deeply distressing to boot) and assumption of risk allows for riskier actions in extremity6. Now, while the inmate would likely have cause to sue and a decent chance of at least partial recovery, the issue of who should be named as a defendant is also significant in this case. Colorado government employees, like the prison guards who did not respond to the inmates requests that the light be repaired, are usually granted immunity from tort for actions taken in the execution of their official duties7. However, damages inflicted during the operation of a correctional facility are specifically waived from general governmental immunity8; the same clause also waives immunity for damages inflicted in the operation of public hospitals, suggesting that the statute was intended to create a higher standard of care for those helpless to act on their own behalf, like the ill and disabled or the incarcerated. Therefore, in this case the inmate could sue the guards who ignored him, and/or their supervisor, through the doctrine of respondeat superior9.
1 2

CRS 17-20-114.5(2a). CRS 13-21-111. 3 CRS 13-21-111 (1). 4 CRS 13-21-111 (3). 5 AM Best Company, Inc. Digest of Insurance Law: Colorado Sep. 2010. http://www.ambest.com/legal/digest/colorado.pdf 6 th Edwards, Linda L. et al. Tort Law. 4 ed. Delmar, 2009. 7 CRS 24-10-106. 8 CRS 24-10-106(1b). 9 Governmental immunity is in derogation of common law and thus to be narrowly constructed while its waivers are to be liberally constructed. Grabler v. Allen, 109 P.3d 1047 (Colo. App. 2005); Awad v. Breeze, 129 P.3d 1039 (Colo. App. 2005).