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Lyons v. Nasby3/20/1989
e negligent per se, Colorado's comparative negligence statute nevertheless required the court to "apportion the parties' relative fault in determining the applicable recovery." Id. at 1182. This was so "even if the defendant has violated a penal statute and is himself negligent as a matter of law. See C.R.S. section 13-21-111(1) (1973)." Id.
In our view, allowing a tavern owner to assert the comparative negligence defense best comports with the purpose of section 13-21-111. To preclude a defendant from asserting this defense would be a statement by us that a defendant's violation of a statute such as the one involved here is, as a matter of law, the proximate cause of the plaintiff's injuries. The defendant would be foreclosed from showing that his violation did not contribute to the plaintiff's injuries or, conversely, that the plaintiff's negligence was greater than that of the defendant. Such a holding would clearly be contrary to traditional tort principles, namely that there be fault on the defendant's part and this fault contribute to the plaintiff's injuries. E.g., Majors v. Brodhead Hotel , 416 Pa. 265, , 205 A.2d 873, 877 (1965). We will not violate this most basic of tort principles. Accordingly, we hold that the respondent may assert the comparative negligence defense.
We also note that the degree of the parties' fault here is to be determined by the trier of fact. Only in the clearest of cases where the facts are undisputed and reasonable minds can draw but one inference should relative degrees of fault be determined as a matter of law. University of Denver v. Whitlock, 744 P.2d 54 (Colo. 1987). Absent this degree of clarity, the issue of comparative negligence should be submitted to the jury. The case before us lacks that degree of clarity which would allow the comparative negligence issue to be decided as a matter of law. The respondent's assertion that the decedent voluntarily and intentionally imbibed to and past the point of intoxication, when coupled with the petitioner's allegation that the respondent continued to serve her son even though visibly drunk, illustrate that there are disputed facts here. Accordingly, the determination of the relative degrees of the parties' fault must be made by the jury. See id.
IV.
In sum, we hold that prior to the 1985 and 1986 statutory amendments a tavern owner owed intoxicated patrons a duty not to serve them alcohol. We also find that a jury could determine that a breach of this duty was a proximate cause of the type of injuries suffered by the decedent. Moreover, if it ascertained that the despondent violated sections 12-46-112 and 12-47-128, and the violation proximately caused the decedent's injuries, the respondent was negligent per se. The despondent may assert the defense of comparative negligence.
Accordingly we reverse the court of appeals decision and remand to the trial court for further proceedings consistent with this opinion.
JUSTICE ROVIRA dissenting:
Recognizing a duty by a providor of alcoholic beverages to protect a consumer from his own intoxication denigrates the concept of individual responsibility, encourages overindulgence, and contravenes public policy. Accordingly, I respectfully dissent.
Petitioner's first claim is grounded in common law negligence. We must examine, therefore, whether her son, Timothy Lyons, could have recovered for his injuries had he survived. Until recently, the common law provided no remedy against one who furnished liquor to a person who voluntarily became intoxicated and consequently injured himself or another. This rule was base
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