Espadero v. Feld

• Decision Date: 23 December 1986
• Docket Number: No. Civ. A. 85-C-248.,Civ. A. 85-C-248.
• Citation: 649 F. Supp. 1480
• Parties: Luis E. ESPADERO and Mario Jorge Pieroni, Plaintiffs, v. Jerry FELD, individually and d/b/a 404 Club, Defendant. Jerry FELD d/b/a Club 404, Third-Party Plaintiff. v. KARL R. HANSEN INSURANCE AGENCY, Karl Hansen, individually, and Mid-America Preferred Insurance Company, a Missouri corporation authorized to do business in Colorado.
• Court: U.S. District Court — District of Colorado

649 F. Supp. 1480

Luis E. ESPADERO and Mario Jorge Pieroni, Plaintiffs, v. Jerry FELD, individually and d/b/a 404 Club, Defendant.

Jerry FELD d/b/a Club 404, Third-Party Plaintiff. v. KARL R. HANSEN INSURANCE AGENCY, Karl Hansen, individually, and Mid-America Preferred Insurance Company, a Missouri corporation authorized to do business in Colorado.

No. Civ. A. 85-C-248.

United States District Court, D. Colorado.

Nunc Pro Tunc November 14, 1986.

Decided December 23, 1986.

Charles S. Vigil, David C. Vigil, Denver, Colo., for plaintiffs.

Bernard H. Thorn, Mellman & Thorn, P.C., Denver, Colo., for defendant.

Harland G. Balaban, Balaban & Levinson, Denver, Colo., for Karl R. Hansen Ins. Agency and K. Hansen.

Jack D. Henderson, Henderson & Streelman, P.C., Denver, Colo., for Mid-America Preferred Ins. Co.

ORDER

CARRIGAN, District Judge.

Plaintiffs Luis E. Espadero and Mario Jorge Pieroni filed this action against the defendant Jerry Feld, individually and doing business as the 404 Club, alleging negligence resulting in personal injury and death. Plaintiff Espadero suffered serious injury when a van he was driving was struck by an automobile driven by a drunk driver, Donald P. Brown. Plaintiff Pieroni's wife, Alejandra Beatrix Pieroni, was a passenger in the Espadero van, and was killed in the collision. At the time of her death she was nine months pregnant, and her full-term unborn male son also was killed in the crash. Plaintiffs allege that immediately prior to the accident, the defendant negligently served alcoholic drinks to Brown when he was visibly and severely intoxicated.

Defendant has moved, pursuant to Fed. R.Civ.P. 12(b)(6), to dismiss certain portions of the plaintiffs' complaint for failure to state a claim, or, in the alternative, for partial summary judgment pursuant to Fed.R.Civ.P. 56. Plaintiffs have opposed the motion. All issues have been thoroughly briefed and oral argument has been heard. I am filing this memorandum opinion to explicate the reasons for my order issued orally from the bench at the hearing. Jurisdiction is based on diversity pursuant to 28 U.S.C. § 1332(a)(2), and Colorado substantive law governs.

I. Negligence Per Se as a Separate Claim.

Plaintiffs allege common law negligence in their first and fifth claims for relief. They further allege, in their second and sixth claims for relief, that the defendant is liable on a theory of negligence per se because he allegedly violated C.R.S. § 12-47-128(1)(a), a penal statute prohibiting the sale of alcoholic beverages to a visibly intoxicated patron.

Defendant contends that alleging violation of a penal statute does not state a separate claim for relief. Defendant's position is that proof of such violation at trial would not establish a claim separate from the negligence claim, but merely would constitute additional evidence in support of that claim. Plaintiffs argue that, perhaps from an abundance of caution, this matter was pleaded as a separate claim to be sure adequate notice was given. In my view, the defendant is correct and no separate claim need be pleaded to justify admitting the evidence in question. Crespin v. Largo Corp., 698 P.2d 826 (Colo.App.1984), (held recovery of damages under C.R.S. § 12-47-128(1)(a) not permitted; but violation of that statute may be introduced as evidence of negligence). See also, Hull v. Rund, 150 Colo. 425, 374 P.2d 351 (1962); Bartley v. Floyd & Skip Liquors, 695 P.2d 781 (Colo.App.1984). It follows that the plaintiffs Espadero and Pieroni may assert negligence per se but only as additional evidence, or an additional theory in support of their common law negligence claims, not as an additional claim.

Since the plaintiffs' second and sixth claims fail to state claims for relief, they must be dismissed without prejudice pursuant to Fed.R.Civ.P. 12(b)(6).

II. Written Notice Pursuant to C.R.S. § 13-21-103.

Defendant next argues that liability under C.R.S. § 13-21-103, Colorado's "dram shop" statute, is conditioned on proof of written notice to the liquor establishment that a particular person is a habitual drunkard and should not be served alcohol. The cited statute reads in pertinent part as follows:

"Every husband, wife, child, parent, guardian, employer, or other person who is injured in person, or property, or means of support by any intoxicated person, or in consequence of the intoxication of any person, has a right of action, in his name, against any person who, by selling or giving away intoxicating liquors to any habitual drunkard, causes the intoxication, in whole or in part, of such habitual drunkard; ... No liability shall accrue against any such person as provided unless the husband, wife, child, parent, guardian, or employer first, by written or printed notice, has notified such person, or his agents, or employees not to sell or give away any intoxicating liquors to any habitual drunkard." (emphasis added).

It seems clear from the statute that the class of persons from whom notice is required does not include the plaintiffs. The only words that possibly might cover them are "or other person." But if the General Assembly had intended to require notice from all possible claimants, there would have been no need to list, "husband, wife, child, parent, guardian, employer...." Obviously "or other person" must be intended to describe others within the familial or employment relationships described. That interpretation might provide some rational foundation for the statute because such persons would be likely to know the drunken defendant's proclivities in advance of the event causing injury and if they knew where he got drunk regularly before driving, such a duty might rationally be imposed on them. Only if thus limited does the statute have any possible basis in reason.

On the other hand, the statutory construction sought by the defendant would produce the anomolous result of requiring the plaintiffs to notify the defendant of facts unknown to the plaintiffs, i.e., Brown's drunkeness and the place where he got drunk, prior to their tragic, unforeseen meeting with him on February 5, 1983. Defendants do not claim that the plaintiffs had previous knowledge of Brown's drinking habits. It is inconceivable that the Colorado General Assembly intended to limit a right of recovery under C.R.S. § 13-21-103 to only those victims of a drunk driver who had a personal or employment relationship with him before he injured them.

Plaintiffs adequately state claims for relief in their fourth and eighth claims, and to the extent that the defendant seeks summary judgment on these claims, it is denied.

III. Net Pecuniary Loss Under the Wrongful Death Statute.

Plaintiffs' fifth, sixth, seventh and eighth claims for relief are premised on C.R.S. § 13-21-202, the Colorado Wrongful Death Statute. Each of these claims contains a prayer for damages in excess of net pecuniary loss.

Damages in a wrongful death action are limited by C.R.S. § 13-21-202 to compensatory damages, and Colorado courts repeatedly have restricted the remedy to net pecuniary loss. See, e.g., Espinoza v. O'Dell, 633 P.2d 455 (Colo.1981). Exemplary or punitive damages are not recoverable in Colorado wrongful death actions. Mangus v. Miller, 35 Colo.App. 335, 535 P.2d 219, cert. dismissed 189 Colo. 481, 569 P.2d 1390 (1975). Nor does the statute permit recovery of general damages for grief or loss of comfort and society. Niven v. Falkenburg, 553 F.Supp. 1021 (D.Colo. 1983); Jones v. Hildebrant, 191 Colo. 1, 550 P.2d 339 (1976) cert. denied, 432 U.S. 183, 97 S.Ct. 2283, 53 L.Ed.2d 209 (1977). While a case might well be made that neither the statute nor its history justifies the narrow remedies so far accorded by Colorado case law, I am bound to follow the law declared by the state supreme court, and any changes must be sought in that forum.

Plaintiffs' prayer for relief under the wrongful death statute for damages beyond their net pecuniary losses is stricken.

IV. Wrongful Death of Unborn Viable Fetus.

Plaintiff Pieroni seeks damages pursuant to the Colorado Wrongful Death Statute for the wrongful death of his full-term, unborn son. Defendant argues that no recovery may be had under the statute for the wrongful death of a viable fetus. This issue has not been addressed by the Colorado courts or General Assembly. Defendant contends, however, that the legislature, and the courts by interpreting the statute as limiting recovery to net pecuniary loss, did not "contemplate" recovery for the unborn.

Defendants use of the word "contemplate" rather than "intend" is revealingly precise. In the late 1800's when the wrongful death statute was adopted in Colorado, actions for prenatal injuries and deaths were unknown. Legislators likely gave no thought to whether they were creating an action for prenatal death or whether the word "person" as used in the statute included a fetus at various stages of development.¹ See Britt v. Sears, 150 Ind.App. 487, 277 N.E.2d 20 (1971).

Thus it is appropriate to consider the broad, general intent and purpose of the General Assembly in enacting the wrongful death statute, including the goal of deterring those who might, negligently or purposefully, take human life. To preclude the plaintiff Pieroni from maintaining an action for the wrongful death of his unborn son would frustrate the legislature's intent to preserve and protect human life. As stated by the Alabama Supreme Court:

"To allow recovery where the fetus is stillborn is essential to the effectuation of legislative intent.... The paramount purpose of our wrongful death statute ... is the preservation of human life.... To deny recovery would sanction the tortfeasor's wrongful act and would clearly negate the primary objective of the statute." Eich v. Town of Gulf Shores, 293 Ala. 95, 300 So.2d 354, 356 (1974).

In addition, denying recovery would produce illogical and inequitable results. For example, to deny recovery where the injury is so...