Lyons v. Nasby

Decision Date20 March 1989
Docket NumberNo. 87SC387,87SC387
Citation770 P.2d 1250
PartiesDoris LYONS, Petitioner, v. Donald NASBY, d/b/a Cripple Creek Inn, Respondent.
CourtColorado Supreme Court

Barash & LeHouillier, Steven T. Nolan, Colorado Springs, for petitioner.

Zarlengo, Mott, Zarlengo & Winbourn, Michelle Holland, Denver, for respondent.

ERICKSON, Justice.

I.

Plaintiff-Petitioner Doris Lyons appeals from the decision in Lyons v. Nasby, 748 P.2d 1341 (Colo.App.1987), dismissing her claim which sought recovery under section 13-21-202, 6 C.R.S.1973 (Wrongful Death Act), 1 for the death of her son Timothy Lyons. Because her claim is brought under the wrongful death statute, the petitioner can maintain an action only if her son could have done so, had his injuries not proven fatal. Mangus v. Miller, 35 Colo.App. 335, 535 P.2d 219 (1975). The complaint alleges that on or about August 13, 1983, agents or employees of the respondent, Donald Nasby, d/b/a the Cripple Creek Inn, negligently served fermented and alcoholic beverages to Timothy even though he was visibly intoxicated at the time. It is further alleged that due to the respondent's negligence, Timothy, while intoxicated, drove his automobile off a mountain road and suffered fatal injuries.

The petitioner does not assert a claim under Colorado's Dram Shop Act, section 13-21-103, 6A C.R.S. (1987). 2 Rather, she predicates her claim upon the common-law theories of negligence and negligence per se. As support for her negligence per se claim, the petitioner alleges that respondent violated section 12-46-112, 5 C.R.S. (1973) (Beer Code) and section 12-47-128, 5 C.R.S. (1973) (Liquor Code), which provide that it is unlawful to sell beer or liquor to visibly intoxicated persons. §§ 12-46-112(1)(b)(I) & 12-47-128(1)(a). 3

At trial, the respondent moved to dismiss the complaint for failure to state a claim upon which relief can be granted. See C.R.C.P. 12(b). The trial court granted the motion, concluding that a tavern owner owes no duty to an intoxicated person. Rather, one who drinks to the point of intoxication "must assume the burden of injury to himself or his property." The trial court reasoned that a contrary ruling would open the floodgates of litigation and create an unmanageable quantity of litigation.

The court of appeals affirmed the trial court's judgment, concluding that no duty extended from a liquor vendor to an inebriate. The court of appeals based its conclusion on the rule that harm to a drinker is proximately caused by the consumption rather than the sale of the alcohol. Thus the respondent's act of serving the decedent was not the proximate cause of the patron's injuries, and consequently the respondent was not negligent. In Largo Corp. v. Crespin, 727 P.2d 1098 (Colo.1986), we expressly rejected the proximate cause rule relied upon by the court of appeals as "out-dated and ill-reasoned" in reaching the conclusion that a third party injured by an inebriate can, under certain circumstances, sue a tavern owner. Id. at 1103. We also stated that under a traditional tort law analysis, a liquor vendor may, again depending upon the circumstances, owe third parties a duty to refrain from serving visibly intoxicated patrons.

In the case now before us, the court of appeals did not follow the Crespin guidelines in reaching its decision. Its failure to do so requires us to reverse the court of appeals decision. In our view, Crespin permits the intoxicated person to pursue a claim against a tavern owner under common-law theories of negligence and negligence per se. Similarly, under Colorado law, the tavern owner can assert a contributory negligence defense against the patron.

Accordingly, we reverse the court of appeals decision and remand to the trial court for further proceedings consistent with this opinion.

II.

We preface this opinion by noting that subsequent to this claim's accrual on or about August 13, 1983, the General Assembly severely limited tavern owners' liability to their customers. In 1985, the legislature amended section 12-46-112 of the Beer Code and section 12-47-128 of the Liquor Code to provide retail sellers of alcoholic beverages with a good faith defense to civil actions under certain circumstances. See §§ 12-46-112(1)(b)(III), 12-47-128(5)(a)(IV), 5 C.R.S. (1985). 4 The amendments became effective on July 1, 1985, and apply to acts committed on or after that date. Ch. 114, sec. 5, § 12-47-130, 1985 Colo.Sess.Laws 540, 544. In 1986, the General Assembly again addressed the civil liability of tavern owners. The 1986 amendments make dramshop liability strictly a creature of statute in Colorado. Under the new laws, "[n]o civil action may be brought ... by the person to whom the alcoholic beverage was sold or served or by his estate, legal guardian, or dependent." § 12-47-128.5(3)(b), 5 C.R.S. (1988 Supp). The 1986 amendments went into effect on May 3, 1986, and apply to claims which accrue on or after that date. Ch. 100, § 12-47-128.5, 1986 Colo.Sess.Laws 659. Because the petitioner's claim accrued on or about August 13, 1983, the 1985 and 1986 amendments do not apply. See § 2-4-202, 1B C.R.S. (1980) (statutes are presumed to operate prospectively); Exotic Coins, Inc. v. Beacom, 699 P.2d 930 (Colo.) (same), appeal dismissed, 474 U.S. 892, 106 S.Ct. 214, 88 L.Ed.2d 214 (1985).

III.

Respondent argues that notwithstanding the legislative amendments' inapplicability, the petitioner's claims are barred by common-law principles and precedent, and that even if such claims were recognized, the Colorado Dramshop Act preempts them. The preemption argument is without merit. In Largo Corp. v. Crespin, 727 P.2d 1098 (Colo.1986), we held that the dramshop act neither expressly nor impliedly "preempt[s] the field of civil liability or provide[s] the exclusive remedy against vendors of alcoholic beverages." Id. at 1107. We reached this conclusion because, based upon our reading of the dramshop act's legislative history, the purpose of the act was to deter intemperance rather than provide a mechanism for civil relief. As such, we stated that the General Assembly did not intend that the dramshop act preempt common-law theories of civil liability. Id. at 1105. We reaffirm our conclusion in Crespin by now holding that petitioner's common-law negligence and negligence per se claims are not preempted by the dramshop act. See id.

At common law neither an inebriate nor a third party injured by an inebriate had a cause of action against the dispenser of the alcoholic beverage. See, e.g., Megge v. United States, 344 F.2d 31, 32 (6th Cir.), cert. denied, 382 U.S. 831, 86 S.Ct. 69, 15 L.Ed.2d 74 (1965); Nolan v. Morelli, 154 Conn. 432, 436, 226 A.2d 383, 386 (1967). Many inroads have been made into this traditional rule, particularly along the lines of third party recovery. See, e.g., Crespin, 727 P.2d 1098; Ontiveros v. Borak, 136 Ariz. 500, 667 P.2d 200 (1983); Ono v. Applegate, 62 Haw. 131, 612 P.2d 533 (1980); Klingerman v. SOL Corp. of Maine, 505 A.2d 474 (Me.1986). As explained in a dissenting opinion, recovery has become increasingly favored because of "the shift from commingling alcohol and horses to commingling alcohol and horsepower," and the increasing severity and number of injuries which are the direct result of the shift. Garcia v. Hargrove, 46 Wis.2d 724, 737, 176 N.W.2d 566, 572 (1970) (Hallows, C.J., dissenting), overruled by Sorensen v. Jarvis, 119 Wis.2d 627, 350 N.W.2d 108 (1984).

Petitioner urges us to extend the modern trend of allowing recovery by applying Crespin in such a manner as to allow an injured inebriate, or his estate, to sue a tavern owner. Respondent argues that Crespin is inapplicable since it involved a third-party, rather than a first-party, claim. While Crespin is distinguishable from the case now before us, it does provide the appropriate analytical framework in which petitioner's claims should be reviewed.

A. NEGLIGENCE

To state a prima facie case of negligence, a plaintiff must establish that the defendant owed plaintiff a duty which was breached and the breach of that duty proximately caused the plaintiff's injury. Leake v. Cain, 720 P.2d 152, 155 (Colo.1986). Those courts that have refused to recognize an inebriate's right to pursue a negligence claim have typically done so on one of two grounds: the lack of a tavern owner's duty, as a matter of public policy, to one who is voluntarily drunk; or the lack of a proximate cause between the serving of the alcohol and the injury producing event. We have rejected both of these arguments in the context of third-party claims. See Crespin, 727 P.2d at 1102, 1104. Applying the Crespin analysis to a first-party claim, we conclude that prior to the 1985 and 1986 statutory amendments, a dispenser of alcohol was under a duty not to serve a visibly intoxicated person, that the dispenser's violation of this duty could be a proximate cause of the inebriate's injury, and that the inebriate or his estate could bring a claim against the dispenser for negligence.

1. Duty

A person has a duty to act or refrain from acting when it is reasonably foreseeable that the failure to act or refrain will create an unreasonable risk of harm to another. Leake, 720 P.2d at 160; Metropolitan Gas Repair Serv., Inc. v. Kulik, 621 P.2d 313, 317 (Colo.1980). The existence of a duty is a question of law to be determined by the court. Crespin, 727 P.2d at 1102; Smith v. City & County of Denver, 726 P.2d 1125 (Colo.1986). In determining whether the law should impose a duty the court must consider several factors, including the extent, foreseeability and likelihood of injury, the social utility of the defendant's conduct, the magnitude of the burden placed on the defendant to guard against injury, and the consequences of placing that burden on the defendant. Smith, 726 P.2d at 1127.

We have stated before that a reasonable person would foresee that an inebriate will act without prudence, control, or...

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