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Lyons v. Nasby3/20/1989
e direct result of the shift. Garcia v. Hargrove, 46 Wis. 2d 724, , 176 N.W.2d 566, 572 (1970) (Hallows, C.J., dissenting), overruled by Sorensen v. Jarvis, 119 Wis. 2d 627, 350 N.W.2d 108 (1984).
Petitioner urges us to extend the modern trend of allowing recovery by applying Crespin in such a manner as to allow an injured inebriate, or his estate, to sue a tavern owner. Respondent argues that Crespin is inapplicable since it involved a third-party, rather than a first-party, claim. While Crespin is distinguishable from the case now before us, it does provide the appropriate analytical framework in which petitioner's claims should be reviewed.
A.
NEGLIGENCE
To state a prima facie case of negligence, a plaintiff must establish that the defendant owed plaintiff a duty which was breached and the breach of that duty proximately caused the plaintiff's injury. Leake v. Cain, 720 P.2d 152, 155 (Colo. 1986). Those courts that have refused to recognize an inebriate's right to pursue a negligence claim have typically done so on one of two grounds: the lack of a tavern owner's duty, as a matter of public policy, to one who is voluntarily drunk; or the lack of a proximate cause between the serving of the alcohol and the injury producing event. We have rejected both of these arguments in the context of third-party claims. See Crespin, 727 P.2d at 1102, 1104. Applying the Crespin analysis to a first-party claim, we conclude that prior to the 1985 and 1986 statutory amendments, a dispenser of alcohol was under a duty not to serve a visibly intoxicated person, that the dispenser's violation of this duty could be a proximate cause of the inebriate's injury, and that the inebriate or his estate could bring a claim against the dispenser for negligence.
1.
Duty
A person has a duty to act or refrain from acting when it is reasonably foreseeable that the failure to act or refrain will create an unreasonable risk of harm to another. Leake, 720 P.2d at 160; Metropolitan Gas Repair Serv., Inc. v. Kulik, 621 P.2d 313, 317 (Colo. 1980). The existence of a duty is a question of law to be determined by the court. Crespin, 727 P.2d at 1102; Smith v. City & County of Denver, 726 P.2d 1125 (Colo. 1986). In determining whether the law should impose a duty the court must consider several factors, including the extent, foreseeability and likelihood of injury, the social utility of the defendant's conduct, the magnitude of the burden placed on the defendant to guard against injury, and the consequences of placing that burden on the defendant. Smith, 726 P.2d at 1127.
We have stated before that a reasonable person would foresee that an inebriate will act without prudence, control, or self-restraint. Crespin, 727 P.2d at 1102. The lack of control, when coupled with the obvious possibility that the inebriate might attempt to drive an automobile, creates a foreseeable risk that the inebriate will suffer severe injury. The frequently raised argument that a tavern owner cannot foresee that an intoxicated patron will attempt to drive is untenable in light of the reality that travel by automobile is both "commonplace and necessary in today's society." Id. In Crespin we concluded that " alancing the foreseeablity, likelihood and extent of the probable injury against any conceivable 'utility' of serving an intoxicated person more alcohol than he or she can safely consume," a tavern owner owes a duty to third persons to act with reasonable care in dispensing alcoholic beverages to its patro
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