Lyons v. Nasby3/20/1989
109 Colo. 1, 121 P.2d 483 (1942). The plaintiff must also show that he or she is a member of the class of persons whom the statute was intended to protect and that the injuries suffered were of the kind that the statute was enacted to prevent. Crespin, 727 P.2d at 1108; Dunbar v. Olivieri, 97 Colo. 381, 50 P.2d 64 (1935). Respondent argues that this last requirement prevents any finding of negligence per se.
Petitioner asserts that the respondent violated sections 12-46-112, 5 C.R.S. (1973), and 12-47-128, 5 C.R.S. (1973), by serving decedent alcoholic beverages when he was visibly intoxicated. Section 12-46-112 of the Beer Code provides that it is illegal to sell fermented beverages to those who are visibly intoxicated, while section 12-47-128 of the Liquor Code provides the same with regard to fermented, vinous, or spiritous liquor. Respondent argues that sections 12-46-112 and 12-47-128 were designed to protect all members of the general public other than the drinker and thus cannot form the basis for a drinker's negligence per se claim. We rejected a similar argument in Crespin. There we held that although the legislative declaration of the Liquor Code did not mention as its purpose the protection of third parties, one purpose was nevertheless the public's protection, of which third parties were members. We also stated that since a purpose of the Liquor Code was to protect "the economic and social welfare and the health, peace and morals of the people," section 12-47-128 was undoubtedly designed in part to prevent injury to tavern patrons as well as to the general public. Crespin, 727 P.2d at 1108. Likewise, in New Safari Lounge, Inc. v. City of Colorado Springs, 193 Colo. 428, 567 P.2d 372 (1977), we held that a purpose of the Liquor Code was to protect the public's safety and, since the code did not single out patrons as being a class outside of the public, patrons were implicitly included within the protected class.
Our conclusion that patrons fall within the class of persons sections 12-46-112 and 12-47-128 were designed to protect is bolstered by the fact that section 12-47-128 "unquestionably reflects a legislative concern for the clear dangers surrounding the sale or provision to those who cannot safely consume it -- intoxicated persons, minors, and habitual drunkards." Crespin, 727 P.2d at 1108 (emphasis added). It is clear that furnishing alcohol to intoxicated patrons presents a risk not only to persons with whom the patron comes in contact, but also to the patron himself. As such, we hold that section 12-47-128, and its analogous counterpart, section 12-46-112, were designed in part to protect the decedent from the type of fatal injury he suffered as a result of the respondent's alleged violation of the statute. Other jurisdictions with similar statutes have held likewise. See. e.g., O'Hanley v. Ninety-Nine, Inc., 12 Mass. App. 64, 421 N.E.2d 1217, 1219-20 (1981); Majors v. Brodhead Hotel , 416 Pa. 265, , 205 A.2d 873, 875 (1965).
The respondent's violation of the statute, if proved, is conclusive evidence of negligence per se. See Crespin, at 1109; Reed v. Barlow, 153 Colo. 451, 386 P.2d 979 (1963); CJI-Civ.2d 9:14; see also Nazareno v. Urie, 638 P.2d 671, 675-76 (Alaska 1981), overruled on other grounds, Kavorkian v. Tommy's Elbow Room, Inc., 711 P.2d 521 (Alaska 1985)
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