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Lyons v. Nasby3/20/1989
ns. Id.
We see no reason why this conclusion should not be extended to patrons as well as to third parties. If the factors enumerated in Smith indicate that a duty is owed, the status of the party as a consumer rather than a third party should not, as a matter of law, preclude the recognition of a duty. Courts that have refused to recognize such a duty usually base their decision on public policy considerations. See, e.g., Kindt v. Kauffman, 57 Cal. App.3d 845, 855-56, 129 Cal. Rptr. 603, 610-12 (1976); Wright v. Moffitt, 437 A.2d 554, 556 (Del. Super. 1981); Swartz v. Huffmaster Alarms Sys. Inc., 145 Mich. App. 431, , 377 N.W.2d 393, 396 (1985); Allen v. County of Westchester, 109 A.D.2d 475, , 492 N.Y.S.2d 772, 776 (1985). A frequently cited example of the public policy concern is contained in Kindt v. Kauffman, 57 Cal. App. 3d 845, 129 Cal. Rptr. 603, where the court stated that:
The inestimable gift of reason and self-control cries out for preservation in every person, and the duty of its preservation devolves upon each member of the public. When the restraint of reason and the ability to care for one's self are perverted by a conscious, self-indulgent act of voluntary intoxication which temporarily casts off those powers, no societal or personal wrong, nor violation of public or social policy is accomplished or violated if the actor is alone held answerable for his injury. . . . Governmental paternalism protecting people from their own conscious folly fosters individual irresponsibility and is normally to be discouraged. . . . To go yet another step and allow monetary recovery to one who knowingly becomes intoxicated and thereby injures himself is in our view morally indefensible.
Id. at 855-56, 129 Cal. Rptr. 603, 610.
We agree that voluntary intoxication is a self-indulgent act. We also note that a person who voluntarily consumes alcohol to the point of intoxication is at the very least partially responsible for his injuries. However, the fact that the patron has acted in an unacceptable manner should in no way lessen the equally unacceptable conduct of a tavern owner. One who stands behind a bar and serves drink after drink to a visibly intoxicated customer engages in behavior which is as opprobrious as that of the customer. We think it "morally indefensible" to condone the conduct of a tavern owner who, so long as the patron is able to pay, continues to serve the intoxicated patron a steady stream of alcohol. In our view the conduct of both the patron and the tavern owner is reprehensible and should be discouraged. Insulating tavern owners, as a matter of law, from liability does not send the message that they, as well as their patrons, must be accountable for their actions.
Our framework for analyzing negligence claims will not casually and cavalierly be cast aside every time we disapprove of the plaintiff's conduct. Rather, we endeavor to apply conventional tort law principles to this issue in the same manner that they are generally applied. While we may frown upon the fact that the decedent had imbibed to and past the point of intoxication, our disapproval cannot be the basis, as a matter of law, for insulating tavern owners from the results of their misconduct. The appropriate mechanism for registering disapproval of the decedent's behavior lies in Colorado's comparative negligence statute, which requires the jury to assess the parties' relative degrees of fault when determining liability. See § 13-21-111, 6A C.R.S. (1987). We believe in the effectiveness of this statute, and will not usurp the jury's role in determining whether the plaintiff's misconduct, when compared to that of the defendant, was so great as to preclude
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