Bartley v. Floyd, 83CA0265

• Decision Date: 29 November 1984
• Docket Number: No. 83CA0265,83CA0265
• Citation: 695 P.2d 781
• Parties: Michael J. BARTLEY, Plaintiff-Appellant, v. David Lee FLOYD, and Skip's Liquors, Inc., Defendants-Appellees. . I
• Court: Colorado Court of Appeals

Page 781

695 P.2d 781

Michael J. BARTLEY, Plaintiff-Appellant, v. David Lee FLOYD, and Skip's Liquors, Inc., Defendants-Appellees.

No. 83CA0265.

Colorado Court of Appeals Div. I.

Nov. 29, 1984.

Rehearing Denied Dec. 27, 1984.

Certiorari Granted (Floyd and Skipp's Liquors) April 15, 1985.

Horn, Anderson & Johnson, Gregory L. Johnson, Colorado Springs, for plaintiff-appellant.

Bailey & Robinson, R. Dennis Lambrecht, Colorado Springs, for defendant-appellee Skip's Liquors, Inc.

Tegtmeier & Sears, P.C., Lance M. Sears, Colorado Springs, for defendant-appellee David Lee Floyd.

TURSI, Judge.

Plaintiff, Michael J. Bartley, appeals from summary judgments for defendants, David L. Floyd and Skip's Liquors, Inc. We reverse.

Plaintiff was severely injured when the motorcycle he was riding collided with an automobile making a U-turn. The automobile was being driven by Edward E. Herbert, who is not a party to this appeal. Floyd was a passenger in the car.

From the depositions, there was evidence before the trial court that Herbert and Floyd, both 17 years of age, pooled their money to buy two six-packs of beer from Skip's. Herbert drove to Skip's and parked in front. Floyd purchased the beer, and returned to the vehicle. They drove to a park and, with two other friends, consumed the beer. The collision involved in this matter occurred as they left the park.

On appeal, plaintiff contends that questions of material fact exist concerning the liability of Floyd and Skip's. We agree.

The violation of a statute adopted for the safety of the public is negligence per se if it is established that such statute was enacted to protect persons such as plaintiff, and if such violation was a cause of the injury. Lambotte v. Payton, 147 Colo. 207, 363 P.2d 167 (1961); Crespin v Largo Corp. (Colo.App. No. 82CA0950, June 14, 1984).

Section 12-47-128(1)(a), C.R.S. (1978 Repl.Vol. 5) states as follows:

"It is unlawful for any person:

(a) To sell, serve, give away, dispose of, exchange, or deliver or permit the sale, serving, giving, or procuring of any malt, vinous, or spirituous liquor to or for any person under the age of twenty-one years ...."

A violation of this statute may constitute negligence per se and, thus, may be a breach of the duty of due care. Crespin v. Largo Corp., supra. Here, Skip's did violate the statute and thus did breach its duty to the public.

The duty to exercise reasonable care extends to those who could reasonably be foreseen as being subject to injury as a result of the lack of such care. Leppke v. Segura, 632 P.2d 1057 (Colo.App.1981). Skip's, however, contends that it is unforeseeable, as a matter of law, that a 17-year-old who has just purchased two six-packs of beer will share it with friends, one of whom may be driving. We reject this contention. The question of whether it was unforeseeable that the breach by Skip's caused damage to plaintiff's legally protected interest is one of fact and must be submitted to a factfinder. Metropolitan Gas Repair Service, Inc. v. Kulik, 621 P.2d 313 (Colo.1980); Leppke v. Segura, supra.

Here, there was deposition testimony that Floyd gave beer to the minor driver in violation of § 12-47-128(1)(a), C.R.S. (1978 Repl.Vol. 5). Thus, as with Skip's, there was an unresolved question of fact whether Floyd's violation of the statute was a cause of plaintiff's injuries, and the trial court erred in granting summary judgment as to Floyd.

Therefore, the judgment is reversed, and the cause is remanded to the trial court for reinstatement of plaintiff's complaint as to Floyd and Skip's, and for further proceedings consistent with the views expressed herein.

PIERCE,...