 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
Christoph v. Colorado Communications Corp.2/20/1997
In this action concerning the death in an automobile accident of Michaela Vargas (decedent), plaintiffs, Juan Aguero, Rosemary Mendez, and Gustavo Aguero (through his guardian ad litem, James Christoph), the decedent's children, sought to impose liability on defendants, Colorado Communications Corporation, a Colorado corporation doing business as KBNO Radio, Inc. (KBNO), the Robby Ferrufino Memorial Fund (the Fund), and Zee C. and Norma Olson Ferrufino (Ferrufinos). Plaintiffs appeal a summary judgment in favor of defendants and also appeal the trial court's award of defendants' costs. The Fund cross-appeals on the costs issue. We reverse and remand for further proceedings.
On August 21, 1993, Jose Vargas (Vargas), and plaintiff Gustavo Aguero, with others, attended a rodeo held at the Boulder County Fairgrounds.
The Fund had arranged with KBNO to operate all of the concession stands at the rodeo. In return for selling beer and soft drinks, the Fund was allowed to retain all sales proceeds. The Ferrufinos supervised the Fund volunteers who staffed the concession stands.
Plaintiffs allege that, from the time of the group's arrival at 4:30 p.m. until Vargas, decedent, and plaintiff Gustavo Aguero left at 8:30 p.m., Vargas drank at least 12 beers that he had purchased from the concession stand. Upon leaving the rodeo, Vargas drove his automobile in a reckless manner, causing it to leave the road, injuring Gustavo Aguero and fatally injuring decedent. At the time of the accident, Vargas' blood alcohol level was no less than .165 percent.
As a result of the accident, in June 1994, plaintiffs instituted this action to recover damages for their mother's death, alleging that defendants had violated §§ 12-46-112.5(3) and 12-47-128.5(3), C.R.S. (1991 Repl. Vol. 5B).
Section 12-47-128.5(3) provides:
(a) No licensee is civilly liable to any injured individual or his estate for any injury to such individual or damage to any property suffered because of the intoxication of any person due to the sale or service of any alcoholic beverage to such person, except when:
(I) It is proven that the licensee willfully and knowingly sold or served any malt, vinous, or spirituous liquor to such person . . . who was visibly intoxicated . . . .
Similarly, § 12-46-112.5(3) states:
(a) No licensee is civilly liable to any injured individual or his estate for any injury to such an individual or damage to any property suffered because of the intoxication of any person due to the sale or service of any alcoholic beverage, including fermented malt beverages, to such person, except when:
(I) It is proven that the licensee willfully and knowingly sold or served any fermented malt beverage to such person . . . who was visibly intoxicated . . . .
Specifically, plaintiffs alleged that defendants had "willfully and knowingly" served alcohol to a "visibly intoxicated" Vargas, resulting ultimately in decedent's death.
Immediately before trial, the court reconsidered its previous denials of defendants' motions for summary judgment. Finding that plaintiffs had failed to present any direct evidence that defendants had "willfully and knowingly" served alcohol to a "visibly intoxicated" Vargas, the trial court then granted defendants' motions for summary judgment. This appeal followed.
Summary judgment is a drastic remedy and should only be granted upon a clear showing that there is no genuine issue of material fact. C.R.C.P. 56(c); Smith v. Boyett, 908 P.2d 508 (Colo. 1995).
The moving party has the burden of establishing that no triable issue exists and all doubts
Page 1 2 3 4 5 Colorado DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|