Lyons v. Nasby3/20/1989
law rule that the consumer's injuries are caused by his own actions rather than those of the provider of alcoholic beverages. See Nolan v. Morelli, 154 Conn. 432, 226 A.2d 383 (1967); Wright v Moffitt, 437 A.2d 554 (Del. 1981); Reed v. Black Caesar's, 165 So. 2d 787 (Fla. App, 1964); Fisher v. O'Connor's, Inc., 53 Md. App. 338, 452 A.2d 1313 (Md. App. 1982); Yoscovitch v. Wasson, 98 Nev. 250, 645 P.2d 975 (Nev. 1982); Webb v. Regua Ltd. Partnership, 624 F. Supp. 471 (E.D. Va. 1985).
Other courts have found that the intoxicated person assumed the risk, was contributorily negligent by law, or defeated his own cause of action through his willful and wanton misconduct. See Sissle v. Stefenoni, 88 Cal. App. 3d 633, 152 Cal. Rptr. 56 (1979); Sutter v. Hutchings, 254 Ga. 194, 327 S.E.2d 716 (1985); Davis v. Stinson, 508 N.E.2d 65 (Ind. App. 1987); Thrasher v. Leggett, 373 So. 2d 494 (La. 1979); Swartzenberger v. Billings Labor Temple, 179 Mont. 145, 586 P.2d 712 (Mont. 1978); Tome v. Berea Pewter Mug, Inc., 4 Ohio App. 3d 98, 446 N.E.2d 848 (1982); Kemock v. Mark II, 62 Ohio App. 2d 103, 404 N.E.2d 766 (1978).
A third approach used by courts to deny liability is to find that the provider of intoxicating beverages owes the consumer no duty to protect him from the results of his own intoxication, or that public policy considerations preclude the creation of a cause of action. See Bertelmann v. Taas Assoc., 69 Haw. 95, 735 P.2d 930 (Haw. 1987); Trujillo v. Trujillo, 104 N.M. 379, 721 P.2d 1310 (1986); Allen v. County of Westchester, 109 A.D.2d 475, 492 N.Y.S.2d 772 (1985); Miller v. City of Portland, 288 Or. 271, 604 P.2d 1261 (1980); Olsen v. Copeland, 90 Wis. 2d 483, 280 N.W.2d 178 (1979) (overruled in cases where third party is injured); Garcia v. Hargrove, 46 Wis. 2d 724, 176 N.W.2d 566 (1970) (overruled in cases where third party is injured).
Finally, several courts have declined to make a public policy determination, and have deferred to the legislature on this issue, See Carr v. Turner, 238 Ark. 889, 385 S.W.2d 656 (Ark. 1965); Felder v. Butler, 292 Md. 174, 438 A.2d 494 (Md. App 1981); Holmes v. Circo, 196 Neb. 496, 244 N.W.2d 65 (1976).
I believe, as did the court of appeals in Lyons v. Nasby, 748 P.2d 1341 (Colo. App 1987), that the best way to approach this issue is to determine whether the provider of intoxicating beverages owes a duty to protect a consumer from his own intoxication. Although I agree that a provider owes a duty to protect an innocent third party from the results of a consumer's intoxication, I do not believe that this duty extends to the intoxicated person himself.
The determination of whether a duty is owed involves weighty policy considerations. One court has described the considerations involved in determining whether a duty exists as follows:
An affirmative declaration of duty simply amounts to a statement that two parties stand in such relationship that the law will impose on one a responsibility for the exercise of care toward the other. Inherent in this simple description are various and sometimes delicate policy judgments. The social utility of the activity out of which the injury arises, compared with the risks involved in its conduct; the kind of person with whom the actor is dealing; the workability of a rule of care, especially in terms of the parties' relative ability to adopt practical means of preventing injury; the relative ability of the parties to bear the financial burden of injury and the availability of means by which the loss may be shifted or spread; the body of statutes and judicial precedents which color the parties' relationship; the prophylactic effect of a rule of liability;
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