Lyons v. Nasby3/20/1989
t for further proceedings consistent with this opinion.
II.
We preface this opinion by noting that subsequent to this claim's accrual on or about August 13, 1983, the General Assembly severely limited tavern owners' liability to their customers. In 1985, the legislature amended section 12-46-112 of the Beer Code and section 12-47-128 of the Liquor Code to provide retail sellers of alcoholic beverages with a good faith defense to civil actions under certain circumstances. See §§ 12-46-112(1)(b)(III), 12-47-128(5)(a)(IV), 5 C.R.S. (1985). The amendments became effective on July 1, 1985, and apply to acts committed on or after that date. Ch. 114, sec. 5, § 12-47-130, 1985 Colo. Sess. Laws 540, 544. In 1986, the General Assembly again addressed the civil liability of tavern owners. The 1986 amendments make dramshop liability strictly a creature of statute in Colorado. Under the new laws, " o civil action may be brought . . . by the person to whom the alcoholic beverage was sold or served or by his estate, legal guardian, or dependent." § 12-47-128.5 (3)(b), 5 C.R.S. (1988 Supp). The 1986 amendments went into effect on May 3, 1986, and apply to claims which accrue on or after that date. Ch. 100, § 12-47-128.5, 1986 Colo. Sess. Laws 659. Because the petitioner's claim accrued on or about August 13, 1983, the 1985 and 1986 amendments do not apply. See § 2-4-202, 1B C.R.S. (1980) (statutes are presumed to operate prospectively); Exotic Coins Inc. v. Beacom, 699 P.2d 930 (Colo.) (same), appeal dismissed, 474 U.S. 892, 88 L. Ed. 2d 214, 106 S. Ct. 214 (1985).
III.
Respondent argues that notwithstanding the legislative amendments' inapplicability, the petitioner's claims are barred by common-law principles and precedent, and that even if such claims were recognized, the Colorado Dramshop Act preempts them. The preemption argument is without merit. In Largo Corp. v. Crespin, 727 P.2d 1098 (Colo. 1986), we held that the dramshop act neither expressly nor impliedly "preempt the field of civil liability or provide the exclusive remedy against vendors of alcoholic beverages." Id. at 1107. We reached this conclusion because, based upon our reading of the dramshop act's legislative history, the purpose of the act was to deter intemperance rather than provide a mechanism for civil relief. As such, we stated that the General Assembly did not intend that the dramshop act preempt common-law theories of civil liability. Id. at 1105. We reaffirm our conclusion in Crespin by now holding that petitioner's common-law negligence and negligence per se claims are not preempted by the dramshop act. See id.
At common law neither an inebriate nor a third party injured by an inebriate had a cause of action against the dispenser of the alcoholic beverage. See, e.g., Megge v. United States, 344 F.2d 31, 32 (6th Cir.), cert. denied, 382 U.S. 831, 15 L. Ed. 2d 74, 86 S. Ct. 69 (1965); Nolan v. Morelli, 154 Conn. 432, , 226 A.2d 383, 386 (1967). Many inroads have been made into this traditional rule, particularly along the lines of third party recovery. See. e.g., Crespin, 727 P.2d 1098; Ontiveros v. Borak, 136 Ariz. 500, 667 P.2d 200 (1983); Ono v. Applegate, 62 Haw. 131, 612 P.2d 533 (1980); Klingerman v. SOL Corp. of Maine, 505 A.2d 474 (Me. 1986). As explained in a dissenting opinion, recovery has become increasingly favored because of "the shift from commingling alcohol and horses to commingling alcohol and horsepower," and the increasing severity and number of injuries which are th
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