One Way a Plaintiff May Try to Get Around Colorado’s Noneconomic Cap in a Wrongful Death Case: Claim a Felonious Killing

One Way a Plaintiff May Try to Get Around Colorado’s Noneconomic Cap in a Wrongful Death Case: Claim a Felonious Killing

The Colorado wrongful death statute specifies who may file a wrongful death claim, including time limits to each potential plaintiff’s ability to commence an action.[i] The surviving spouse of decedent is the only person who may file a wrongful death claim in the first year after death.[ii]  During the second year after death, both the surviving spouse and the surviving children of decedent are allowed to file a claim.[iii]  If the decedent left no surviving spouse and no surviving children, then decedent’s parents may file a wrongful death claim.[iv]

Wrongful death claimants may recover for their economic losses resulting from the death caused by the tortfeasor, but noneconomic damages are capped in Colorado.  Noneconomic losses include past and future “grief, loss of companionship, impairment of the quality of life, inconvenience, pain and suffering, and emotional stress.”[v]  For wrongful death actions, the current adjusted limitation for claims for relief that accrue on and after January 1, 2020 is $571,870.[vi]   For those actions that accrued on and between January 1, 2008 and December 31, 2019, the limitation is $436,070.[vii]

However, this damages cap does not apply if the death at issue occurred as the result of a “felonious killing,” which is defined under the Colorado Probate Code at C.R.S. § 15-11-803(1)(b).  A felonious killing, “…is the killing of the decedent by any 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,” as the crimes are defined in C.R.S. § 18-3-102 to C.R.S. § 18-3-104.[viii]

An Actual Criminal Conviction is Not Necessary

A criminal conviction of a defendant is not necessary to establish a felonious killing.  Under C.R.S. § 15-11-803(7), notwithstanding the disposition of a criminal proceeding, an interested person may petition the court to determine whether, by a preponderance of the evidence standards each of the elements of felonious killing of the decedent have been established.[ix]  Therefore, the trial court may independently determine whether the conduct of the at-fault party constituted a felonious killing. The language of the statute has been held to be broad enough to allow such a determination even where the person was acquitted, was convicted of a lesser offense, or where no criminal proceeding was ever initiated.[x]

Colorado’s Definitions of Murder and Manslaughter

In a civil wrongful death case, Colorado’s criminal law statutes come into play to provide the elements necessary to determine whether a felonious killing has occurred.  In order to find a felonious killing, elements of one of the following must be satisfied:

A person commits the crime of murder in the first degree if after deliberation and with the intent to cause the death of a person other than himself, he causes the death of that person or of another person.[xi]

A person commits the crime of murder in the second degree if the person knowingly causes the death of a person.[xii]

A person commits the crime of manslaughter if such person recklessly causes the death of another person.[xiii]

Often, Manslaughter is at issue in Civil Proceedings, Not Murder

It is relatively easy for a trial court when the defendant in a wrongful death case has been previously convicted or the intent (“deliberation and with intent” or “knowingly”) is apparent under one of Colorado’s murder statutes’ elements.[xiv]  Where it becomes more difficult is in the case of no prior conviction and the trial court is looking to apply the facts of the case to the manslaughter elements.[xv]  It is from there that the majority of civil wrongful death actions will arise and more often than not in the driving context. In this circumstance, the trial court will be asked to determine, by a preponderance of the evidence, whether the defendant in the wrongful death case has “recklessly” caused the decedent’s death.

Considerations to be Made by the Trial Court when Determining Whether “Reckless” Conduct Resulted in Death

A person acts recklessly when he or she consciously disregards a substantial and unjustifiable risk that a result will occur.[xvi]  Case law explains, the inquiry is whether the defendant caused the death of the decedent “…by acting in a manner that involves a substantial and unjustifiable risk of death of the victim, and although the actor is conscious of the risk, he…nevertheless chooses to engage in the action.”[xvii]

A risk does not have to be “more likely than not to occur” or “probable” in order to be substantial.  A risk may be substantial even if the chance the harm will occur is well below fifty percent.[xviii]  Whether a risk is substantial is a matter of fact that will depend on the specific circumstances of each case.  For instance, driving a car is not conduct that by its nature necessarily involves a substantial risk of death to others, but after viewing the facts of a particular case closely a court may determine that the defendant created a substantial risk of death.[xix] A court cannot generically characterize the actor’s conduct (e.g., driving a truck) in a manner that ignores the specific elements of the conduct that create a risk (e.g., driving a truck with failing brakes on a highway).[xx]  The concept of a “substantial and unjustifiable risk” implies a risk that constitutes a gross deviation from the standard of care a reasonable law-abiding person would exercise under the circumstances.[xxi]

In addition to showing a person created a substantial and unjustifiable risk, the actor must have “consciously disregarded” the risk in order to act recklessly.  A person acts with a conscious disregard of the risk created by conduct when the actor is aware of the risk and chooses to act despite that risk.[xxii]  A court or trier of fact may infer a person’s subjective awareness of a risk from the particular facts of a case, including the person’s particular knowledge or expertise.[xxiii]  Only a “slight risk of death” to another person is necessary to meet this element[xxiv].


 Whether a felonious killing occurred for the purpose of invalidating the applicability of Colorado’s noneconomic cap in a wrongful death claim is a highly fact-specific undertaking that could have significant ramifications to the overall value of a claim. Presently, noneconomic damages in a wrongful death action are limited to just $571,870 (for actions that accrued on or after January 1, 2020).  In the event the trial court determines by a preponderance of the evidence a felonious killing occurred, the jury is free to award any amount it deems fair and reasonable to compensate the surviving spouse or children for their grief, loss of companionship, impairment of the quality of life, inconvenience, pain and suffering, and emotional stress.


[i] C.R.S. § 13-21-201(1)(a)–(b).

[ii] Id.

[iii] Id.

[iv] Id.

[v] C.R.S. § 13-21-203(1)(a).

[vi] C.R.S. § 13-21-203(1); see also Adjusted Limitation on Damages Certificate,

[vii]   Id.

[viii] C.R.S. § 15-11-803(1)(b).

[ix] C.R.S. § 15-11-803(7)(b).

[x] Estate of Wright, ex rel. Wright v. United Servs. Auto. Ass’n, 53 P.3d 683, 686 (Colo. App. 2001).

[xi] C.R.S. § 18-3-102(1)(a).

[xii] C.R.S. § 18-3-103.

[xiii] C.R.S. § 18-3-104.

[xiv] C.R.S. § 18-3-102(1)(a) and C.R.S. § 18-3-103.

[xv] C.R.S. § 18-3-104.

[xvi] People v. Garcia, 1 P.3d 214, 223 (Colo.App.1999)(cert. granted May 22, 2000).

[xvii] Moore v. People, 925 P.2d 264, fn. 6 (Colo.1996)

[xviii] See People v. Deskins, 927 P.2d 368, 373 (Colo.1996) (finding reckless conduct where defendant disregarded risk that “any of the cars on the road” on a particular night might contain children) (emphasis omitted); see also Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law § 3.7(f) at 336 (1986).

[xix] See, e.g., People v. Clary, 950 P.2d 654, 658–59 (Colo.App.1997) (finding that driving a truck without adequate brakes constituted reckless conduct for vehicular homicide count).

[xx] People v. Hall, 999 P.2d 207, 218 (Colo. 2000).

[xxi] Id.

[xxii] Id. at 219.

[xxiii] Id. at 220.

[xxiv] Id.

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