Mountain Mobile Mix, Inc. v. Gifford, 81SC47

• Citation: 660 P.2d 883
• Decision Date: 22 February 1983
• Docket Number: No. 81SC47,81SC47
• Parties: MOUNTAIN MOBILE MIX, INC., a Colorado corporation, Petitioner, v. Pete GIFFORD, individually and d/b/a Foothills Concrete; Dale Green, individually and as a partner in Timberridge Construction Co., a partnership; and Timberridge Construction Co., a partnership, Respondents.
• Court: Supreme Court of Colorado

Page 883

660 P.2d 883

MOUNTAIN MOBILE MIX, INC., a Colorado corporation, Petitioner, v. Pete GIFFORD, individually and d/b/a Foothills Concrete;

Dale Green, individually and as a partner in Timberridge

Construction Co., a partnership; and Timberridge

Construction Co., a partnership, Respondents.

No. 81SC47.

Supreme Court of Colorado,

En Banc.

Feb. 22, 1983.

Cosgriff, Dunn & French, Timothy H. Berry, Leadville, for petitioner.

Madden & Strate, P.C., Trevor J. MacLennan, Denver, for respondents.

Ireland, Stapleton & Pryor, P.C., William G. Imig, Paul S. Sanzo, Denver, for Nat. Ass'n of Independent Insurers, amicus curiae.

Hoffman & McDermott, Gerald P. McDermott, Leland P. Anderson, Denver, for Colorado Trial Lawyers Ass'n, amicus curiae.

ERICKSON, Justice.

This appeal presents a case of first impression involving the liability of multiple defendants under the Colorado comparative negligence statute, section 13-21-111, C.R.S.1973. The sole issue is whether the comparative negligence statute should be interpreted to require that the contributory negligence of a plaintiff be compared against the combined negligence of multiple defendants. The court of appeals held that an individual comparison rule is to be applied which requires that the plaintiff's negligence be compared against the negligence of each defendant individually. Mountain Mobile Mix, Inc. v. Gifford, 628 P.2d 133 (Colo.App.1980). We reverse the court of appeals and hold that the negligence of multiple defendants should be combined when compared against the plaintiff's negligence. Damages may be recovered from multiple defendants found liable unless the plaintiff was 50% or more at fault.

I.

The respondents, Dale Green and Peter Gifford, contractor and subcontractor respectively, were jointly engaged in the construction of a residential duplex in Rifle, Colorado. Mountain Mobile Mix was to provide concrete for the foundation of the structure.

On January 25, 1978, Larry Lewis, an employee of the petitioner, Mountain Mobile Mix, Inc., delivered a load of concrete to the construction project. To facilitate Mountain Mobile Mix's delivery, Gifford and Green had constructed a dirt ramp from street level into the excavation site. The depth of the excavation was approximately seven feet. Lewis, the driver of the cement truck, arrived at the job site and proceeded to back onto the dirt ramp to make his delivery. As Lewis was backing his truck into the excavation, the edge of the dirt ramp collapsed, causing the truck to slide into the site. The truck and the construction project sustained damages of over $10,000.

A trial was held to the court, which determined that each party to the action was contributorily negligent. The court apportioned the negligence of the parties as follows:

                Mountain Mobile Mix  33 1/3%
                Gifford              33 1/3%
                Green                33 1/3%
                

The court then concluded that the Colorado comparative negligence statute, section 13-21-111, C.R.S.1973, barred Mountain Mobile Mix from recovering because its negligence was equal to the negligence of each of the defendants.

On appeal, the court of appeals agreed with the trial court. The court of appeals concluded that, under accepted canons of statutory construction, the comparative negligence statute precludes recovery for plaintiffs who are equally or more negligent than any joint tortfeasor. We disagree and therefore reverse the court of appeals.

II.

For a number of years, Colorado adhered to the common law rule that contributory negligence by the plaintiff was a complete bar to recovery. The rule led to harsh results in many cases where a plaintiff was only slightly at fault but was still denied any recovery. See generally Montgomery Elevator Co. v. Gordon, 619 P.2d 66 (Colo.1980); Darnell Photographs, Inc. v. Great American Insurance Co., 33 Colo.App. 256, 519 P.2d 1225 (1974). The General Assembly alleviated many of the undesirable consequences of contributory negligence when it adopted the comparative negligence statute in 1971. The statute, similar to those enacted in a number of other states, allows a plaintiff to recover damages unless the plaintiff has contributed 50% or more to the negligence which causes an accident.

Comparative negligence statutes are generally a means of apportioning the damages of a tort among the tortfeasors. Prosser, Comparative Negligence, 51 Mich.L.Rev. 465 (1953). Two types of comparative negligence statutes predominate. The first, "pure comparative negligence," permits a plaintiff to recover damages regardless of his degree of fault, though damages are correspondingly reduced by the percentage to which the plaintiff contributed to his loss. See C. Heft & C. Heft, Comparative Negligence Manual § 1.50 (1978 & 1982 Supp.). For example, a 90% negligent plaintiff could still recover 10% of the total damages.

The second, "mixed comparative negligence," permits a plaintiff to recover when his negligence causes less than a specified percentage of the tort. Id. at § 1.40. Typically, the cut-off percentage is 50%. Thus, a plaintiff who is less than 50% contributorily negligent may still recover damages, though the amount of his recovery will be proportionally reduced by the plaintiff's percentage of contributory fault. The common law doctrine of contributory negligence as a complete bar applies to plaintiffs over the set percentage. Pure or mixed comparative negligence schemes have been adopted in nearly forty states by either judicial decision or by legislative act. Id. at Appendix II.

Colorado has a mixed comparative negligence statute. The statute provides in part:

"(1) Contributory negligence shall not bar recovery in any action by any person or his legal representative to recover damages for negligence resulting in death or in injury to person or property, if such negligence was not as great as the negligence of the person against whom recovery is sought, but any damages allowed shall be diminished in proportion to the amount of negligence attributable to the person for whose injury, damage, or death recovery is made." ¹

(Emphasis added.) A plaintiff in Colorado who is 50% or more negligent is barred from recovery under this modified contributory negligence rule. The question remains as to what effect multiple defendants will have on the plaintiff's right to recover. ²

III.

This case revolves around the proper interpretation of the comparative negligence statute. It is axiomatic that a statute should be construed liberally so that the true intent and meaning of the General Assembly may be fully carried out. Section 2-4-212, C.R.S.1973 (1980 Repl.Vol. 1B); People v. Lee, 180 Colo. 376, 506 P.2d 136 (1973). It is presumed that the General Assembly intended a statute to effect a just and reasonable result. Section 2-4-201, C.R.S.1973 (1980 Repl.Vol. 1B); see generally R. Dickerson, The Interpretation and Application of Statutes 43-103 (1975). If the language of a statute is not dispositive, courts must resolve the ambiguity by interpreting the statute in accordance with the purposes sought to be attained, with the circumstances under which the statute was enacted, and with other statutes or common law relating to the same or similar subjects. Section 2-4-203, C.R.S.1973 (1980 Repl.Vol. 1B). We must therefore construe any ambiguities in the comparative negligence statute to harmonize the statute's language with the purposes of comparative negligence and related tort doctrines of joint and several liability and contribution among tortfeasors.

The controversy in this appeal arises from the language in the statute which purports to limit recovery if plaintiff's "negligence was not as great as the negligence of the person against whom recovery is sought" (emphasis added). The respondents argue that the plain language of the statute dictates that plaintiff's negligence should be compared against each defendant's negligence. In our view, the issue cannot be resolved by a mechanical and narrow reading of the statute. See Posey v. District Court, 196 Colo. 396, 586 P.2d 36 (1978), People v. Silvola, 190 Colo. 363, 547 P.2d 1283 (1976).

In addition to the previously mentioned canons of statutory construction which the General Assembly has codified, it has directed us that the use of a singular in a statute also includes the plural. Section 2-4-102, C.R.S.1973 (1980 Repl.Vol. 1B); see also Renck v. Motor Vehicle Division, 636 P.2d 1294 (Colo.App.1981) (police "officer" includes "officers"). The respondents would have us ignore rules for statutory interpretation when there is no indication that the comparative negligence statute was intended to embody an individual comparison rule. If the General Assembly truly intended the phrase "the person" to exclude the plural, then it could have unambiguously provided for that result by using the phrase "each individual person." See Van Horn v. William Blanchard Co., 173 N.J.Super. 280, 285, 414 A.2d 265, 267 (1980) (Pressler, J., dissenting) (legislature should have used "any person" to clarify statute). Even though the General Assembly's wording is imprecise, we do not believe that a strict parsing of the statutory language compels an individual comparison rule. See also Odenwalt v. Zaring, 102 Idaho 1, 624 P.2d 383 (1981) (Bistline, J., concurring in part, dissenting in part); Board of County Commissioners v. Ridenour, 623 P.2d 1174 (Wyo.1981) (McClintock, J., specially concurring). We must therefore construe the statute in light of its intended purpose. Examination of the underlying public policy which the General Assembly intended to effectuate with the comparative negligence statute convinces us, as it has other courts and legislatures, that a combined comparison approach best serves those ends.

There has been a marked split of opinion on how best to meet the goals of the comparative negligence acts. Courts have interpreted statutory language which is identical or substantially similar to Colorado's...