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Lyons v. Nasby3/20/1989
d on the theory that the proximate cause of injury was the act of the consumer in drinking the liquor and not the act of the person providing it.
A proximate causation analysis balances philosophic, pragmatic, and moral approaches to causation. See Kowal v. Hofher, 181 Conn. 355, 436 A.2d 1 (1989). A policy decision as to which party should be held responsible for a particular injury is often incorporated into the concept of "proximate cause." The common law rule that the provider of alcohol did not "cause" the injury, reflects the decision that human beings, drunk or sober, are reasonable for their own torts. See Wright v. Moffitt, 437 A.2d 554 (Del 1981); State v. Hatfield, 197 Md. 249, 78 A.2d 754 (Md. App. 1951). Common law did not recognize the existence of proximate cause because an intoxicated person's injury "was the result of his own negligence or his own voluntary act of rendering himself incapable of driving a car rather than the remote act of the [provider] in dispensing the liquor. . . ." Reed v. Black Caesar's Forge Gourmet Restaurant, 165 So. 2d 787, 788 (Fla. App. 1964).
The common law rule proved to be harsh in those cases where an intoxicated person injured an innocent third party. Because the third party had no role in causing the inebriate's intoxication, whereas the provider and the consumer both participated in placing the dangerous force in motion which eventually injured the third party, it was considered fair to recognize a cause of action in favor of the third party against the provider of alcohol. We recognized such an action in Largo Corp. v. Crespin, 727 P.2d 1098 (Colo. 1986). Almost every jurisdiction has recognized or established a cause of action for the innocent third party, either through dram shop legislation or judicially created common law. See Sorensen v. Jarvis, 119 Wis. 2d 627, 350 N.W.2d 108 (1984) (appendix contains list of those jurisdictions which have recognized common law liability against a tavern owner for injuries sustained by third persons as a result of the acts of an intoxicated patron).
However, these same compelling reasons are not found where the consumer of alcohol himself is injured. Although interpreting a dram shop act, the Minnesota Supreme Court aptly stated : "To hold otherwise, we believe, would be to permit one who has been an intentional accessory to the illegality to shift the loss resulting from to a person no more responsible for the damage than he himself has been. So considered, the case is different from that of the party who suffers loss at the hands of a person with whose intoxication he had no involvement. . . ." Turk v. Long Branch Saloon, 280 Minn. 438, 442, 159 N.W.2d 903, 906 (1968). This sentiment was also expressed in Reed v. Black Caesar's, 165 So. 2d 787, 788 (Fla. App. 1964), when the court stated: "We find no authority, absent legislative enactment, to extend the same protection to those who become voluntarily drunk so that a right of action arises in them because of injury caused by their own intoxication as is sometimes extended to third persons who are injured by such intoxicated persons." Many jurisdictions which have created a cause of action for an innocent third party have denied a cause of action to the consumer himself. See, e.g., Sutter v. Hutchings, 254 Ga. 194, 327 S.E.2d 716 (1985); Bertelmann v. Taas Assoc., 69 Haw. 95, 735 P.2d 930 (Haw. 1987); Cuevas v. Royal D'Iberville Hotel , 498 So. 2d 346 (Miss. 1986); Trujillo v. Trujillo, 104 N.M. 379, 721 P.2d 1310 (1986); Miller v. City of Portland, 288 Or. 271, 604 P.2d 1261 (1980).
Courts have denied a claim to an intoxicated person who injures himself on several grounds. Some courts have retained the common
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