Motion to Amend Complaint to Add Punitive Damages – Drunk Driver

Plaintiff, Joe Innocent (hereinafter “Plaintiff”), by and through his attorneys, D.J. Banovitz, Esq., hereby submits the following PLAINTIFF’S MOTION TO AMEND COMPLAINT TO INCLUDE PUNITIVE DAMAGES PURSUANT TO C.R.S. § 13-21-102. As grounds therefore, Plaintiff states and alleges as follows:


Plaintiff commenced this action on October 2, 2009. The case was at issue on October 13, 2009. The parties have exchanged C.R.C.P. 26a1 disclosures by November 2, 2009.

This case comes as a result of a June 4, 2007 automobile collision. The Defendant failed to stop at a stoplight and rear ended the Plaintiff causing significant, painful, permanent injuries to the Plaintiff. Defendant was charged with Careless driving pursuant to C.R.S. 42-4-1402; Following too Closely pursuant to 42-4-1008(1); Driving under the influence of drugs alcohol or both pursuant to C.R.S. 42-4-1301(1)(a); and Driving with excessive alcohol content pursuant to C.R.S. 42-4-1301(2)(a). See police report attached hereto as Exhibit 1.

The accident report and narrative include that the Defendant had an odor of alcohol, bloodshot watery eyes, could not satisfactorily complete roadside sobriety testing, and blew in excess of .300 on a portable breath test. In addition, investigating officers reported two nearly empty bottles of wine in Defendant’s Car. See Exhibit 1.



C.R.C.P. 15 allows a plaintiff to amend a complaint upon leave of court. It is a longstanding judicial principle that a motion for leave to amend a complaint should be freely granted, and that C.R.C.P. 15 is to be liberally applied. Van Schaack v. Phipps, 558 P.2d 581 (Colo.App. 1976); Eckstine v. Harris, 521 P.2d 1280 (Colo.App. 1974).

Trial courts should permit amendments to pleadings at any stage of the litigation process so long as undue delay does not result and other parties are not prejudiced by such amendments. Ajay Sports, Inc. v. Casazza, 1 P.3d 267 (Colo.App. 2000).

In this case there will simply be no new issues interjected into this case by the granting of the instant motion. As exemplary damages are based on the identical conduct of the underlying action, there is no prejudice to defendant.

In his Complaint, Plaintiff reserved a fifth claim for relief punitive and/or exemplary damages making it clear that he would seek to prove willful and wanton conduct (and/or punitive damages). In addition, Plaintiff ‘s general allegations included averments that Defendant’s conduct was willful and wanton, reckless and heedless to the consequences or safety of others. Defendant’s own conduct further serves as notice of the likelihood of exemplary damages being sought against him. Therefore, any “notice” requirement has been satisfied by the allegations contained in the original Complaint.


Defendant’s conduct was unmistakably willful and wanton and he clearly acted with, “an evil intent or wrongful motive … or created and then purposefully disregarded a substantial risk of harm.” Pizza v. Wolf Creek Ski Dev. Corp., 711 P.2d 671 (Colo. 1985). In addition, this is not the first time that Defendant has engaged in such conduct. The accident report indicates that Defendant had at least one prior alcohol related driving offense.

C.R.S. § 13-21-102. Exemplary damages, in pertinent part reads:

(1)(a) In all civil actions … [if a wrong] is attended by circumstances of … willful and wanton conduct, the jury …may award him reasonable exemplary damages. (b) As used in this section, “willful and wanton conduct” means conduct purposefully committed which the actor must have realized as dangerous, done heedlessly and recklessly, without regard to consequences, or of the rights and safety of others, particularly the plaintiff. (1.5)(a) A claim for exemplary damages in an action governed by this section may not be included in an initial claim for relief … [but]… may be allowed … after … the plaintiff establishes prima facie proof of a triable issue….

Based on defendant’s conduct in this case (See Exhibit 1) and Defendants admissions in his Answer to the Complaint, that he admitted to operating his vehicle after having several alcoholic beverages plaintiff seeks to include exemplary damages as remedy.

An Amended Complaint and proposed Order is filed contemporaneously herewith.


WHEREFORE, Plaintiff respectfully requests the entry of an Order allowing Plaintiff to amend hir Complaint, to include exemplary damages pursuant to C.R.S. § 13-21-102.