Lyons v. Nasby3/20/1989
; Brannigan v. Raybuck, 136 Ariz. 513, , 667 P.2d 213, 217 (1984) (violation of statute is negligence per se unless excused when, for example, "defendant was unable after reasonable diligence to comply with [the statute]"); Wright v. Moffitt, 437 A.2d 554, 557 (Del. Super. 1981); Miller v. City of Portland, 288 Or. 271, , 604 P.2d 1261, 1264-65 (1980); Majors v. Brodhead Hotel, 416 Pa. 265, , 205 A.2d 873, 875-76; W. Prosser, D. Dobbs, R. Keeton, D. Owen, prosser & Keeton on Torts 229-30 (5th ed. 1984). We note, however, that the respondent's alleged violation of sections 12-46-112 and 12-47-128, if proved, would not preclude him from asserting a contributory negligence defense. See Thomas v. Pete's Satire, Inc., 717 P.2d 509, 510 (Colo. App. 1985); see also Ewing v. Cloverleaf Bowl, 20 Cal. 3d 389, 402, 572 P.2d 1155, 1160, 143 Cal. Rptr. 13, 19 (1978).
C.
CONTRIBUTORY NEGLIGENCE
The next issue which must be addressed is what role, if any, Colorado's comparative negligence statute plays in this dispute. Section 13-21-111, 6A C.R.S. (1987), which went into effect on July 1, 1977, abrogated the traditional contributory negligence doctrine and in its place substituted a comparative negligence statute. Where the old statute barred a plaintiff from recovering if he or she were at all negligent, the comparative negligence statute permits a plaintiff to recover so long as his or her negligence was less than that of the defendant. § 13-21-111(1); see also Graf v. Tracy, 194 Colo. 1, 568 P.2d 467 (1977); Heafer v. Denver-Boulder Bus Co., 176 Colo. 157, 489 P.2d 315 (1971). Under the comparative negligence statute the relative degrees of the plaintiff's and defendant's fault must be ascertained to determine whether and what amount of recovery is proper.
Some jurisdictions have held that a defendant who is negligent per se cannot avail him or herself of the contributory/comparative negligence defense. See, e.g., Galvin v. Jennings, 289 F.2d 15, 19 (3d Cir. 1961); Soronen v. Olde Milford Inn, Inc., 46 N.J. 582, 589, 218 A.2d 630, 634 (1966). The rationale for this holding is that a tavern owner's duty not to serve intoxicated patrons would be rendered meaningless if the tavern owner could avoid or lessen its responsibility for the breach of that duty by simply accusing the patron of drinking too much.
Other jurisdictions have rejected any rule that precludes a defendant from asserting the contributory/comparative negligence defense. The reasoning here is that the common-law doctrine of negligence per se should not be applied in such a manner to abrogate the legislatively imposed requirement that a jury determine the degree of negligence attributable to the plaintiff and defendant. See Bissett v. D.M.I., Inc., 220 Mont. 153, 717 P.2d 545, 547 (Mont. 1986); see also Brannigan v. Raybuck, 136 Ariz. 513, , 667 P.2d 213, 218 (1983) (implicitly recognizing that comparative negligence is available as a defense).
Colorado has cast its lot with the latter jurisdictions. In McCormick v. United States, 539 F. Supp. 1179 (D. Colo. 1982), a plaintiff who was injured when a postal service employee ran a red light and struck the plaintiff's automobile sued the government under a theory of respondeat superior. The plaintiff claimed that the employee was negligent, and as proof of that claim asserted that running the red light violated Colorado's statutory traffic provisions and thus rendered the defendant negligent per se. The federal district court agreed, but noted that although the defendant may b
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 Colorado DUI Attorneys
DUI Lawyers
|