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been in the contemplation of both parties, at the time they made the contract, as the probable
result of the breach of it’” (quoting Hadley v. Baxendale, (1854) 156 Eng. Rep. 145, 151)).
2. For special damages to be recoverable, they must have been within the reasonable
contemplation of the parties. Uinta Oil Ref. Co. v. Ledford, 125 Colo. 429, 244 P.2d 881
(1952); W. Union Tel. Co. v. Trinidad Bean & Elevator Co., 84 Colo. 93, 267 P. 1068 (1928)
(citing earlier cases); see also Gen. Steel Domestic Sales, LLC, 230 P.3d at 1285 (contract
damages are limited to those arising from risks considered and bargained for by parties);
Fountain v. Mojo, 687 P.2d 496 (Colo. App. 1984); RESTATEMENT (SECOND) OF CONTRACTS §
351 (1981).
3. Loss of future profits (as distinct from profits already lost) may be recovered in a
breach of contract action where they are established with reasonable certainty. Denny Constr.,
199 P.3d at 751 (“lost profits due to impaired bonding capacity, like all claims for lost profits,
must be established with reasonable certainty”); Acoustic Mktg. Research, Inc. v. Technics,
LLC 198 P.3d 96, 97 (Colo. 2008) (“future damages, including lost future royalties, may be
awarded in a breach of contract action if they are demonstrated with reasonable certainty”);
Belfor USA Grp., Inc. v. Rocky Mtn. Caulking & Waterproofing, LLC, 159 P.3d 672 (Colo.
App. 2006); see also Colo. Nat’l Bank of Denver v. Friedman, 846 P.2d 159 (Colo. 1993);
Lee, 144 Colo. at 278, 355 P.2d at 1087; Nevin v. Bates, 141 Colo. 255, 347 P.2d 776 (1959)
(lost profits claimed for breach of a lease denied as being too speculative); Uinta Oil Ref. Co.,
125 Colo. at 434, 244 P.2d at 884-85 (where existence of loss is established, plaintiff can recover
loss of net profits even though the exact amount may be difficult to ascertain); Carlson v. Bain,
116 Colo. 526, 182 P.2d 909 (1947) (lost profits allowed when rancher did not get possession of
ranch property and was unable to raise crops and livestock on the property); Colo. Nat’l Bank v.
Ashcraft, 83 Colo. 136, 263 P. 23 (1927) (the court did not err in giving an instruction that
allowed jury to consider lost profits in assessing damages, and the fact that the amount could not
be determined with exact certainty was not a valid basis for denial); Boyle v. Bay, 81 Colo. 125,
254 P. 156 (1927) (loss of net profits recoverable if, because of circumstances at time contract
entered into, the loss is reasonably within the contemplation of the parties); Corcoran v.
Sanner, 854 P.2d 1376 (Colo. App. 1993); Denver Publ’g Co. v. Kirk, 729 P.2d 1004 (Colo.
App. 1986) (where contract terminable at will upon notice being given within certain time, lost
profits are recoverable upon termination, but only for the period of time for which notice should
have been given but was not); L.U. Cattle Co. v. Wilson, 714 P.2d 1344, 1348 (Colo. App.
1986) (lost profits recoverable “if they are reasonably ascertainable based on past experience and
not too speculative, remote, or contingent”); Fagerberg v. Webb, 678 P.2d 544, 548 (Colo. App.
1983) (“Once the fact of damage has been proven, uncertainty as to amount will not prevent
recovery.”), rev’d on other grounds sub nom. Webb v. Dessert Seed Co., Inc., 718 P.2d 1057
(Colo. 1986); Stone v. Caroselli, 653 P.2d 754 (Colo. App. 1982) (lost profits sufficiently
foreseeable to be recovered by manufacturer where distributors breached contract to promote the
product and expand the market and difficulty in ascertaining exact amount of those damages
does not preclude their recovery).
4. Whether lost profits were reasonably foreseeable at the time the contract was made is
measured by an objective standard. Denny Constr., 199 P.3d at 743 (“the question is . . .
whether [the defendant] knew or should have known that such loss would probably occur”);
H.M.O. Sys., Inc. v. Choicecare Health Servs., Inc., 665 P.2d 635 (Colo. App. 1983); see also