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Summer weather and the implied warranty of habitability

As one of Colorado’s hottest summers on record continues on, a common question for landlords and tenants alike seems to be whether a landlord is obligated to fix things like electrical issues and broken air conditioning units.

By statute, residential leases in Colorado contain an “implied warranty of habitability”, which requires that the residence be fit for human habitation. C.R.S. 38-12-501, et seq. Generally, Colorado law requires that rental homes substantially have the following in good working order:

  • waterproofing and weather protection of roofs, walls, windows, and exterior doors;
  • functioning plumbing and, if applicable, gas lines;
  • running water;
  • hot water;
  • heating;
  • electricity;
  • reasonably clean common areas;
  • appropriate extermination efforts of rodents and other vermin;
  • appropriate exterior trash receptacles;
  • floors, stairways, and railings;
  • locks on exterior doors and latches on exterior windows; and
  • compliance with building, housing, and house code provisions which, if violated, would constitute a danger to a tenant’s life, health, or safety.

Thus, a landlord that fails to address leaking plumbing, electrical wiring issues, or damaged windows, as common examples, would potentially be in breach of the warranty of habitability. In general, if a landlord breaches the warranty of habitability by failing to repair issues within a reasonable amount of time after receiving written notice from a tenant, the tenant can break his or her lease and move out.

One thing notably absent from the above list is air conditioning. While this may seem surprising in the context of record summer temperatures, under the current law a landlord is nonetheless generally not required to provide air conditioning.

However, if a local building, housing, or house code requires air conditioning, a landlord’s failure to provide it could be a breach of the warranty of habitability. Similarly, an electrical, weather proofing, or plumbing issue that leads to non-functional air conditioning could also be a breach of the warranty of habitability.

Thus, while a landlord generally has a strong defense to a tenant’s claim that the landlord violated the warranty of habitability by not providing air conditioning, non-functional air conditioning could implicate the landlord’s other obligations under Colorado’s warranty of habitability.

Demystifying how people win trials

Getting involved in a legal dispute – whether civil or criminal, no matter the size – can be confusing and stressful. It’s natural to want a quick resolution. It’s natural to want to win. However, it is also important to understand what the judge and/or jury will be relying on in deciding who wins, and to understand your chances of success ahead of time.

Law vs. fact

Nearly every trial involved disputed questions of fact – was the defendant driving while impaired by alcohol? Which party’s negligence caused the motor vehicle collision? What was the dollar amount of damages caused to the plaintiff? These issues will be decided by the “finder of fact” – either the jury, or the judge if there is no jury. Parties, and their attorneys, can present evidence, such as witness testimony or exhibits, supporting their positions on the facts. The ultimate determination, however, will be made by the jury (or judge). This determination will be made at or after the trial, which may be months or even years after a lawsuit is filed.

If there are no significant factual disputes, it may be possible for a court to decide a case before trial. However, this is the exception, not the norm.

Some trials also involve disputed legal issues. However, the law applicable to a particular situation is often fairly well established, and often the most significant questions for trial are over what occurred factually.

Elements of proof

Nearly every trial involves specific legal claims, which in turn have specific elements. Personal injury lawsuits, for example, often include a claim for negligence – it may even be the only claim. To win on a negligence claim, the injured party needs to establish:

  • that the defendant owed a duty (such as a general duty to not drive negligently);
  • that the defendant breached that duty;
  • that the plaintiff suffered harm; and
  • that the defendant’s breach caused the plaintiff’s harm.

For a plaintiff to win at trial on a negligence claim, the jury generally needs to find that the factual evidence presented supports each of the above legal elements. In a civil case, the findings generally need to be by a “preponderance of the evidence” – 51% or more – as compared to a criminal case where the findings generally need to be beyond a reasonable doubt to support a conviction.

The importance of evidence

As the above may suggest, trials are often won by having better factual evidence than the other side. If a DUI suspect crashes her vehicle in to someone’s living room and gives a blood test that shows a BAC four times the legal limit, the prosecution will probably win at trial because it has overwhelming factual evidence. In less lopsided situations, the side that wins at trial may have won because it spent more time and effort investigating and understanding the facts before trial.

If you are involved in a lawsuit and hire an attorney, it is important to fully answer your attorney’s questions. This will allow him or her to present as much factual evidence in your support as possible, and to confront harmful facts in the best possible way. Unfortunately, trials are usually not won by winning the judge’s sympathy, by novel legal arguments, or by opposing parties slipping up on the witness stand. Rather, hard work and thorough investigation of the facts is often the best way to maximize the chance of winning at trial.

Pay for medpay

When purchasing or renewing an automobile insurance policy, you may be tempted to try to make your premium as low as possible. Your insurance agent might even tell you that medical payments coverage (also known as “medpay”) isn’t much different from underinsured/uninsured motorist coverage, and so why pay for it at all?

Think twice before rejecting medpay.

In Colorado, there are at least three major differences between medpay and underinsured/uninsured motorist coverage (known as UM/UIM coverage).

First, UM/UIM coverage is generally not available if you are found to be at fault for causing a motor vehicle collision. Medpay is.

Second, UM/UIM coverage is as a practical matter not available immediately after the collision. For an injured person to be entitled to UM/UIM coverage, it needs to be established that the at fault driver was uninsured or underinsured, which can often require waiting for a coverage investigation by his or her insurance company, and if there is even minimal coverage you may need to wait until your damages clearly exceed that coverage before your own UM/UIM coverage will be available. Traditionally, insurance companies often did not extend underinsured motorist benefits at all until the injured party reached a policy limits settlement with the at fault driver’s insurance company. In contrast, medpay benefits are generally available as soon as you have incurred collision-related medical bills.

Third, under Colorado law your insurance company generally has no right to be repaid for medpay benefits if you reach a settlement with the at fault driver’s insurance company. This is in contrast to other ways of paying for collision related medical bills, such as health insurance or medical liens. For example, if you incur $5,000 in medical bills for chiropractic care, have $5,000 in medpay benefits, and your automobile insurance company pays the chiropractor with your medpay, it will have no right to be paid back if you later settle with the at fault driver’s insurance company. This is true even if the at fault driver’s insurance company’s offer includes the chiropractor’s bills. 

Colorado Supreme Court announces new personal injury case decisions

On Monday, May 21, 2018, the Colorado Supreme Court announced two new decisions in the area of personal injury law.

In City & County of Denver v. Dennis, 2018CO37, the Court held that a motorcyclist who suffered serious injuries due to the condition of a Denver street could not recover because the street’s condition was not so bad that it posed an unreasonable risk that physically interfered with the flow of traffic. This case demonstrates the difficulty of bringing claims subject to Colorado’s Governmental Immunity Act.

In State Farm v. Fisher, 2018CO39, the Court upheld a Colorado Court of Appeals decision requiring insurance companies to provide underinsured and uninsured motorist benefits promptly, even when there is a dispute as to the amount of benefits the claimant is entitled to. The Court held that the insurance company must promptly pay the undisputed portion of benefits. This case is consistent with other recent Colorado law requiring that insurance companies pay their own insureds’ first party claims promptly, rather than delaying any payment until a full and final payment was agreed to.