Lyons v. Nasby3/20/1989
the law will aid neither. See, e.g., Isaak v. Perry, 118 Colo. 93, 193 P.2d 269 (1948); Italian-American Bank v. Lepore, 79 Colo. 466, 246 P. 792 (1926). Here, Timothy Lyons willingly drank the alcohol served to him while he was intoxicated. He then got behind the wheel of his car in a drunken state, contrary to law, and died as a result. "To allow recovery in favor of one who has voluntarily procured a quantity of liquor for his or her own consumption with full knowledge of its possible or probable results 'would savor too much of allowing [said] person to benefit by his or her own wrongful act.'" Allen v. County of Westchester, 109 A.D.2d 475, , 492 N.Y.S.2d 772, 776 (1985) (quoting Buntin v. Hutton, 206 Ill. App 194, 199 (1917)). See also 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); Miller v. City of Portland, 288 Or. 271, 604 P.2d 1261 (1980).
The majority concludes that the policy concerns enumerated above will be accommodated by submitting the issue of comparative negligence to the jury. I disagree. The jury's function is to determine questions of fact, not to determine whether a duty exists. This is a question of law. Therefore, the decision whether a person may recover for the results of his own intoxication should be made by this court.
Even if it were proper to impose a duty on the provider of intoxicating beverages, in this case petitioner should be precluded from recovering because her son voluntarily consumed the liquor and then drove his car in violation of law. Where one consciously chooses a dangerous course of action with knowledge of facts which, to a reasonable mind, create a strong probability that injuries to others will result, his conduct is wanton. Steeves v. Smiley, 144 Colo, 5, 354 P.2d 1011 (1960). I can reach no other conclusion than to find that the petitioner's son acted in a willful and wanton manner by driving his car on mountain roads while intoxicated. I believe, as a matter of law, this degree of recklessness evidenced an absolute failure to exercise reasonable care under conditions which rendered probable a likelihood that harm would result to himself or others, and thus bars petitioned from recovering.
Several other courts have reached the same conclusion. In Trenier v. California Investment & Development Corp., 105 Cal. App. 3d 44, 164 Cal. Rptr. 156 (1980), the court found that the plaintiff, who drove when he was clearly in no condition to do so and created a potent and lethal threat not only to his own safety, but also to the safety of any others, was guilty of willful misconduct and could not recover against the person who served him alcoholic beverages. In Davis v. Stinson, 508 N.E.2d 65 (Ind. App 1987), the court determined that a person who drives while intoxicated is guilty of willful and wanton misconduct as a matter of law, and recovery is barred. See also Kemock v. Mark II, 62 Ohio App. 2d 103, 404 N.E.2d 766 (1978).
Where, as here, an intoxicated person drives his vehicle reckless disregard for the safety of others, he is by law, more than 50% responsible for any injuries he causes to himself. As between the provider and the consumer of an alcoholic beverage, the consumer has the last opportunity to avoid the effect of the alcohol, by not drinking or not driving, and thus as between the two, the negligence of the consumer is the greater. Sutter v. Hutchings, 254 Ga. 194, 327 S.E.2d 716 (1985). I would, therefore, find as a matter of law that petitioner is barred from recovering in this case.
Petitioner
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