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Lyons v. Nasby3/20/1989
Certiorari to the Colorado Court of Appeals,
ERICKSON
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), 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). 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).
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 (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 cour
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