Build It v. Strauch

• Decision Date: 06 June 2011
• Docket Number: No. 09SC1011.,09SC1011.
• Citation: 253 P.3d 302
• Parties: BUILD IT AND THEY WILL DRINK, INC., d/b/a Eden Nightclub, and Rodney Owen Beers, Petitionersv.Michael Alan STRAUCH, Respondent.
• Court: Colorado Supreme Court

253 P.3d 302

BUILD IT AND THEY WILL DRINK, INC., d/b/a Eden Nightclub, and Rodney Owen Beers, Petitioners

v.Michael Alan STRAUCH, Respondent.

No. 09SC1011.

Supreme Court of Colorado, En Banc.

June 6, 2011.

Harris, Karstaedt, Jamison & Powers, P.C., A. Peter Gregory, Englewood, Colorado, Harris, Karstaedt, Jamison & Powers, P.C., Steven R. Helling, Colorado Springs, Colorado, Attorneys for Petitioner Build It and They Will Drink, Inc., d/b/a Eden Nightclub.Wills & Adams, LLP, Wm. Andrew Wills, II, John S. Pfeiffer, Colorado Springs, Colorado, Attorneys for Respondent.

Campbell, Latiolais & Ruebel, P.C., Casey A. Quillen, Denver, Colorado, Attorneys for Amicus Curiae Colorado Defense Lawyers Association.No appearance by or on behalf of Rodney Owen Beers.Justice MARTINEZ delivered the Opinion of the Court.

I. Introduction

In this case, we address Colorado's dram-shop-liability statute, section 12–47–801, C.R.S. (2010). The dram-shop statute provides the sole means for someone injured by an intoxicated person to obtain a remedy from the vendor who sold or provided alcohol to the intoxicated person. Section 12–47–801 abolishes any common law cause of action against a vendor of alcohol while simultaneously creating statutory liability for such vendors under narrowly defined circumstances, including when the vendor willfully and knowingly serves alcohol to a visibly intoxicated person.

The petitioners in this case are Build It and They Will Drink (“Build It”), a liquor licensee doing business as Eden Nightclub, and Rodney Beers, the owner of Build It. The respondent Michael Strauch was stabbed by an intoxicated patron of Build It after both Strauch and his assailant attended a New Year's Eve party at Eden Nightclub. The unprovoked stabbing occurred a block-and-a-half away from the nightclub.

Strauch filed a number of claims against Build It, including general negligence and premises liability claims as well as a claim under the dram-shop-liability statute. The trial court dismissed all the claims after determining that the attack was not foreseeable, and that Build It therefore had no duty to insure Strauch's safety once he had left the premises. The court's analysis was rooted in the common law doctrine of foreseeability, which serves as a limit on the extent of liability in the context of general tort claims. The court of appeals reversed only on the dram-shop-liability claim, on the basis that section 12–47–801 does not require or permit consideration of foreseeability in assessing liability under the statute. Strauch v. Build It and They Will Drink, Inc., 226 P.3d 1235, 1238–39 (Colo.App.2009).

We granted certiorari to determine whether reasonable foreseeability, an element derived from a traditional common law negligence action, may be considered in determining whether a vendor of alcohol is liable for injuries caused by intoxicated patrons under the dram-shop-liability statute. Because we agree that under section 12–47–801, it is not necessary or appropriate to consider whether an injury was a foreseeable consequence of the sale or service of alcohol, we affirm the judgment of the court of appeals.

II. Facts and Proceedings Below

The facts of this case involve a New Year's Eve celebration that went awry when it ended in an unprovoked stabbing by an intoxicated partygoer. On December 31, 2006, Nathan Dickerman and Michael Strauch, who did not know each other, both attended a New Year's Eve party at Eden Nightclub. Dickerman had purchased the VIP admission package, which included complimentary champagne bottles, unlimited bottle service, and access to a VIP room with an unsupervised self-serve bar. In the VIP room, guests were told to mix their own drinks, although there were employees monitoring doorways and checking wristbands. According to testimony of partygoers, patrons at Eden were stumbling into walls, falling down, throwing drinks, vomiting, taking off clothes, and passing out.

By 11:30 p.m., Dickerman was extremely intoxicated, as demonstrated by the fact that he broke a light fixture, yelled at other patrons, and vomited before being escorted out of the club by friends. Despite this behavior, Dickerman was subsequently readmitted to the club.

At 12:45 a.m., Strauch left the club with his date and began walking toward his hotel. When he was a block-and-a-half away from the club, he heard someone, later identified as Dickerman, yelling obscenities. As the yelling got closer, Strauch turned around to discover a knife-wielding Dickerman standing right behind him. As Strauch continued walking quickly toward his hotel, he was stabbed in the back and in the chest by Dickerman.

Strauch filed a number of claims against Dickerman, Build It, and Beers. Most of the claims filed against Build It and Beers were based on theories of general negligence and premises liability, theories under which liability is limited by the concepts of foreseeability and proximate cause. Additionally, Strauch filed a dram-shop claim under section 12–47–801 on the basis that Build It served alcohol to a visibly intoxicated Dickerman. Build It and Beers filed a motion for summary judgment on all the claims, and the motion was granted on September 18, 2008. In the oral order granting the motion for summary judgment, the trial court focused on the foreseeability of the attack and the extent of Build It's duty to insure the safety of its patrons. The trial court reasoned that going forward with the case would require the court to find that Build It's duty to insure the safety of its patrons required Build It to not only get a patron safely off the premises, but also to “actually escort him home.” Additionally, the court discussed the unforeseeability of the attack, distinguishing this case from those where an establishment has notice of incidents occurring in an adjacent parking lot. Because the trial court found that there was no prior notice that an attack would occur a block-and-a-half from the premises, it ruled that Strauch could not succeed on any of his claims against Build It and Beers and granted the motion for summary judgment.

The court of appeals affirmed the grant of summary judgment for all the claims except the statutory claim under section 12–47–801. Strauch, 226 P.3d at 1236. The court of appeals held that the common law doctrine of reasonable foreseeability does not apply in actions against alcohol vendors under section 12–47–801, and therefore that the trial court erred by considering whether Build It could have foreseen the attack. Id. Because section 12–47–801 expressly abolishes any common law tort action against alcohol vendors, the court concluded that the statute provides the “definitive text” on the subject. Id. at 1238. Accordingly, the court of appeals declined “to read an additional element into a statute that already reflects a legislative policy judgment of when alcohol vendors can and cannot be liable for injuries caused by their intoxicated patrons.” Id. In its analysis, the court also compared Colorado's dram-shop statute to ones from other states and concluded that Colorado had conspicuously omitted proximate cause as an element. Id. The court reversed the grant of summary judgment on the statutory claim and remanded for proceedings on the merits. Id. at 1239.

Build It petitioned this court for certiorari to determine whether foreseeability of an injury-causing event is an element, or appropriate consideration in determining liability of a liquor licensee for the sale or service of alcohol under section 12–47–801. In its petition, Build It contends that by removing foreseeability from the analysis, section 12–47–801 becomes a strict liability statute. Furthermore, Build It argues that the court of appeals' interpretation will result in a “Pandora's box of claims by every victim of an intentional crime ... where the perpetrator claimed he got drunk at some bar before committing the act.” This result, Build It claims, is contrary to the legislative intent to restrict recovery against liquor licensees and will “render licensees a virtual insurer of the safety of all persons visiting its premises.”

We granted certiorari to determine whether an injury must be foreseeable to a liquor licensee for liability under the dram-shop statute. Because we conclude that the plain language of section 12–47–801 does not include foreseeability, we decline to read an additional element into the statute. Therefore, we affirm the judgment of the court of appeals.

III. Analysis

a. Standard of Review

This case requires us to determine whether section 12–47–801 imports reasonable foreseeability into an analysis of liability under the statute. Because the issue is one of statutory interpretation, we review de novo. Clyncke v. Waneka, 157 P.3d 1072, 1076 (Colo.2007). In doing so, we strive to give effect to the intent of the legislature. Id. at 1077. When determining the intent of the legislature, we first look to the language of the statute to ascertain its plain meaning. Golden Animal Hosp. v. Horton, 897 P.2d 833, 836 (Colo.1995).

b. The Dram–Shop–Liability Statute

Section 12–47–801, also known as the dram-shop-liability statute, provides the exclusive remedy for a plaintiff injured by an intoxicated person against a vendor of alcohol beverages. Charlton v. Kimata, 815 P.2d 946, 951 (Colo.1991) (discussing the enactment of section 12–47–128.5, C.R.S. (1986), the predecessor to section 12–47–801). In enacting the statute, the General Assembly expressly abolished any common law cause of action against a vendor of alcohol beverages, making the liability of alcohol vendors “strictly a creature of statute in Colorado.” Id. at 948–49; § 12–47–801 (“The general assembly hereby finds, determines, and declares that this section shall be interpreted so that any common law cause of action against a vendor of alcohol beverages is abolished....”).

Section 12–47–801 contains two subsections which are relevant to this...