Justia.com Opinion Summary: Respondent Michael Strauch was stabbed by an intoxicated person outside of Eden Nightclub on New Year's Eve. Eden is owned by Petitioner Build It and They Will Drink, Inc. (Build It). Mr. Strauch filed a number of claims against Build It, including general negligence, premises liability claims and a "dram shop" claim for his injuries after the stabbing. The trial court dismissed all claims after determining that the attack was not foreseeable, and that Build It had no duty to insure Mr. Strauch's safety once he left the nightclub. The Court of Appeals reversed only the dram shop liability claim, holding that Colorado law does not require consideration of "foreseeability" in assessing liability against a club that serves alcohol. Build It appealed. Upon review, the Supreme Court found that the plain language of Colorado Dram-Shop Statute defined the criteria for liability without mentioning "foreseeability." The Court held that an injury does not have to be foreseeable after the sale or service of alcohol. The Court affirmed the appellate court's judgment that held Build It liable for Respondent's injuries.
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ADVANCE SHEET HEADNOTE
June 6, 2011
No. 09SC1011, Build It and They Will Drink, Inc., d/b/a Eden
Nightclub, and Rodney Owen Beers v. Michael Alan Strauch:
Dram-Shop Liability.
In this case involving an unprovoked stabbing by an
intoxicated nightclub patron, the Colorado Supreme Court granted
certiorari to determine whether the court of appeals erred in
holding that reasonable foreseeability, an element derived from
a traditional common law negligence action, may not be
considered in determining whether a vendor of alcohol is liable
for injuries caused by intoxicated patrons under Colorado‟s
dram-shop statute, section 12-47-801, C.R.S. (2010).
Section 12-47-801 expressly abolishes any common law action
against a vendor of alcohol beverages, adopting a general rule
that the consumption of alcohol, rather than the sale, service,
or provision of alcohol, is the proximate cause of injuries
inflicted on another by an intoxicated person.
Nevertheless,
the statute also creates liability for liquor licensees by
describing the limited circumstances under which there are
exceptions to the rule that consumption is the proximate cause
of injuries inflicted by an intoxicated person.
Therefore, section 12-47-801 replaces the common law
proximate cause determination with specific statutory elements,
eliminating civil liability for liquor licensees except when
there is a willful and knowing sale of alcohol to a visibly
intoxicated person, and injury resulting from the intoxication.
Under these circumstances, the sale or service of alcohol is the
proximate cause of a plaintiff‟s injuries, and a vendor of
alcohol is liable for limited damages.
Because the plain language of the statute defines the
criteria for proximate cause and liability without mention of
foreseeability, the supreme court holds that liability under
section 12-47-801 does not require that the plaintiff‟s injury
be a foreseeable consequence of the sale or service of alcohol.
Therefore, the supreme court affirms the judgment of the court
of appeals.
2
SUPREME COURT, STATE OF COLORADO
101 West Colfax Avenue, Suite 800
Denver, Colorado 80202
Case No. 09SC1011
Certiorari to the Colorado Court of Appeals
Court of Appeals Case No. 08CA2241
Petitioners:
Build It and They Will Drink, Inc., d/b/a Eden Nightclub, and
Rodney Owen Beers,
v.
Respondent:
Michael Alan Strauch.
JUDGMENT AFFIRMED
EN BANC
June 6, 2011
Harris, Karstaedt, Jamison & Powers, P.C.
A. Peter Gregory
Englewood, Colorado
Harris, Karstaedt, Jamison & Powers, P.C.
Steven R. Helling
Colorado Springs, Colorado
Attorneys for Petitioner Build It and They Will Drink,
Inc., d/b/a Eden Nightclub
Wills & Adams, LLP
Wm. Andrew Wills, II
John S. Pfeiffer
Colorado Springs, Colorado
Attorneys for Respondent
Campbell, Latiolais & Ruebel, P.C.
Casey A. Quillen
Denver, Colorado
Attorneys for Amicus Curiae Colorado Defense Lawyers
Association
No appearance by or on behalf of Rodney Owen Beers.
JUSTICE MARTINEZ delivered the Opinion of the Court.
2
I.
Introduction
In this case, we address Colorado‟s dram-shop-liability
statute, section 12-47-801, C.R.S. (2010).
The dram-shop
statute provides the sole means for someone injured by an
intoxicated person to obtain a remedy from the vendor who sold
or provided alcohol to the intoxicated person.
Section
12-47-801 abolishes any common law cause of action against a
vendor of alcohol while simultaneously creating statutory
liability for such vendors under narrowly defined circumstances,
including when the vendor willfully and knowingly serves alcohol
to a visibly intoxicated person.
The petitioners in this case are Build It and They Will
Drink (“Build It”), a liquor licensee doing business as Eden
Nightclub, and Rodney Beers, the owner of Build It.
The
respondent Michael Strauch was stabbed by an intoxicated patron
of Build It after both Strauch and his assailant attended a New
Year‟s Eve party at Eden Nightclub.
The unprovoked stabbing
occurred a block-and-a-half away from the nightclub.
Strauch filed a number of claims against Build It,
including general negligence and premises liability claims as
well as a claim under the dram-shop-liability statute.
The
trial court dismissed all the claims after determining that the
attack was not foreseeable, and that Build It therefore had no
duty to insure Strauch‟s safety once he had left the premises.
3
The court‟s analysis was rooted in the common law doctrine of
foreseeability, which serves as a limit on the extent of
liability in the context of general tort claims.
The court of
appeals reversed only on the dram-shop-liability claim, on the
basis that section 12-47-801 does not require or permit
consideration of foreseeability in assessing liability under the
statute.
Strauch v. Build It and They Will Drink, Inc., 226
P.3d 1235, 1238-39 (Colo. App. 2009).
We granted certiorari to determine whether reasonable
foreseeability, an element derived from a traditional common law
negligence action, may be considered in determining whether a
vendor of alcohol is liable for injuries caused by intoxicated
patrons under the dram-shop-liability statute.
Because we agree
that under section 12-47-801, it is not necessary or appropriate
to consider whether an injury was a foreseeable consequence of
the sale or service of alcohol, we affirm the judgment of the
court of appeals.
II.
Facts and Proceedings Below
The facts of this case involve a New Year‟s Eve celebration
that went awry when it ended in an unprovoked stabbing by an
intoxicated partygoer.
On December 31, 2006, Nathan Dickerman
and Michael Strauch, who did not know each other, both attended
a New Year‟s Eve party at Eden Nightclub.
Dickerman had
purchased the VIP admission package, which included
4
complimentary champagne bottles, unlimited bottle service, and
access to a VIP room with an unsupervised self-serve bar.
In
the VIP room, guests were told to mix their own drinks, although
there were employees monitoring doorways and checking
wristbands.
According to testimony of partygoers, patrons at
Eden were stumbling into walls, falling down, throwing drinks,
vomiting, taking off clothes, and passing out.
By 11:30 p.m., Dickerman was extremely intoxicated, as
demonstrated by the fact that he broke a light fixture, yelled
at other patrons, and vomited before being escorted out of the
club by friends.
Despite this behavior, Dickerman was
subsequently readmitted to the club.
At 12:45 a.m., Strauch left the club with his date and
began walking toward his hotel.
When he was a block-and-a-half
away from the club, he heard someone, later identified as
Dickerman, yelling obscenities.
As the yelling got closer,
Strauch turned around to discover a knife-wielding Dickerman
standing right behind him.
As Strauch continued walking quickly
toward his hotel, he was stabbed in the back and in the chest by
Dickerman.
Strauch filed a number of claims against Dickerman, Build
It, and Beers.
Most of the claims filed against Build It and
Beers were based on theories of general negligence and premises
liability, theories under which liability is limited by the
5
concepts of foreseeability and proximate cause.
Additionally,
Strauch filed a dram-shop claim under section 12-47-801 on the
basis that Build It served alcohol to a visibly intoxicated
Dickerman.
Build It and Beers filed a motion for summary
judgment on all the claims, and the motion was granted on
September 18, 2008.
In the oral order granting the motion for
summary judgment, the trial court focused on the foreseeability
of the attack and the extent of Build It‟s duty to insure the
safety of its patrons.
The trial court reasoned that going
forward with the case would require the court to find that Build
It‟s duty to insure the safety of its patrons required Build It
to not only get a patron safely off the premises, but also to
“actually escort him home.”
Additionally, the court discussed
the unforeseeability of the attack, distinguishing this case
from those where an establishment has notice of incidents
occurring in an adjacent parking lot.
Because the trial court
found that there was no prior notice that an attack would occur
a block-and-a-half from the premises, it ruled that Strauch
could not succeed on any of his claims against Build It and
Beers and granted the motion for summary judgment.
The court of appeals affirmed the grant of summary judgment
for all the claims except the statutory claim under section
12-47-801.
Strauch, 226 P.2d at 1236.
The court of appeals
held that the common law doctrine of reasonable foreseeability
6
does not apply in actions against alcohol vendors under section
12-47-801, and therefore that the trial court erred by
considering whether Build It could have foreseen the attack.
Id.
Because section 12-47-801 expressly abolishes any common
law tort action against alcohol vendors, the court concluded
that the statute provides the “definitive text” on the subject.
Id. at 1238.
Accordingly, the court of appeals declined “to
read an additional element into a statute that already reflects
a legislative policy judgment of when alcohol vendors can and
cannot be liable for injuries caused by their intoxicated
patrons.”
Id.
In its analysis, the court also compared
Colorado‟s dram-shop statute to ones from other states and
concluded that Colorado had conspicuously omitted proximate
cause as an element.
Id.
The court reversed the grant of
summary judgment on the statutory claim and remanded for
proceedings on the merits.
Id. at 1239.
Build It petitioned this court for certiorari to determine
whether foreseeability of an injury-causing event is an element,
or appropriate consideration in determining liability of a
liquor licensee for the sale or service of alcohol under section
12-47-801.
In its petition, Build It contends that by removing
foreseeability from the analysis, section 12-47-801 becomes a
strict liability statute.
Furthermore, Build It argues that the
court of appeals‟ interpretation will result in a “Pandora‟s box
7
of claims by every victim of an intentional crime . . . where
the perpetrator claimed he got drunk at some bar before
committing the act.”
This result, Build It claims, is contrary
to the legislative intent to restrict recovery against liquor
licensees and will “render licensees a virtual insurer of the
safety of all persons visiting its premises.”
We granted certiorari to determine whether an injury must
be foreseeable to a liquor licensee for liability under the
dram-shop statute.
Because we conclude that the plain language
of section 12-47-801 does not include foreseeability, we decline
to read an additional element into the statute.
Therefore, we
affirm the judgment of the court of appeals.
III.
Analysis
a. Standard of Review
This case requires us to determine whether section
12-47-801 imports reasonable foreseeability into an analysis of
liability under the statute.
Because the issue is one of
statutory interpretation, we review de novo.
157 P.3d 1072, 1076 (Colo. 2007).
Clyncke v. Waneka,
In doing so, we strive to
give effect to the intent of the legislature.
Id. at 1077.
When determining the intent of the legislature, we first look to
the language of the statute to ascertain its plain meaning.
Golden Animal Hosp. v. Horton, 897 P.2d 833, 836 (Colo. 1995).
8
b. The Dram-Shop-Liability Statute
Section 12-47-801, also known as the dram-shop-liability
statute, provides the exclusive remedy for a plaintiff injured
by an intoxicated person against a vendor of alcohol beverages.
Charlton v. Kimata, 815 P.2d 946, 951 (Colo. 1991) (discussing
the enactment of section 12-47-128.5, C.R.S. (1986), the
predecessor to section 12-47-801).
In enacting the statute, the
General Assembly expressly abolished any common law cause of
action against a vendor of alcohol beverages, making the
liability of alcohol vendors “strictly a creature of statute in
Colorado.”
Id. at 948-49; § 12-47-801 (“The general assembly
hereby finds, determines, and declares that this section shall
be interpreted so that any common law cause of action against a
vendor of alcohol beverages is abolished . . . .”).
Section 12-47-801 contains two subsections which are
relevant to this case.
The first is subsection (1), which
includes a legislative declaration that abolishes any common law
cause of action and also provides:
[T]hat in certain cases the consumption of
alcohol beverages rather than the sale,
service,
or
provision
thereof
is
the
proximate cause of injuries or damages
inflicted upon another by an intoxicated
person except as otherwise provided in this
section.
Therefore, subsection (1) establishes the general rule that
consumption of alcohol is the proximate cause of a plaintiff‟s
9
injuries except under the circumstances described later in the
statute.
Subsection (3)(a) eliminates civil liability for a
liquor licensee for any injury or damage “suffered because of
the intoxication of any person due to the sale or service of any
alcohol beverage to such person,” except when:
(I)
It is proven that
knowingly
sold
beverage to such
age of twenty-one
intoxicated.
the licensee willfully and
or
served
any
alcohol
person who was under the
years or who was visibly
Thus, subsection (3) provides an exception both to the general
rule that consumption of alcohol is the proximate cause of
injuries inflicted by an intoxicated person and to the general
rule of non-liability for alcohol vendors.
Accordingly,
liability occurs when a liquor licensee willfully and knowingly
serves an underage or visibly intoxicated person and, because of
the intoxication, another person suffers an injury.
Civil
action under section 12-47-801 is further limited by a one year
statute of limitations and a liability cap of one hundred fifty
thousand dollars.1
Moreover, the statute explicitly disallows
recovery by the person to whom the alcohol beverage was sold or
served or by his or her estate, legal guardian, or dependent.
The concept of reasonable foreseeability is not explicitly
addressed anywhere in the statute.
1
The statute of limitations for a general tort action is two
years. § 13-80-102(1)(a), C.R.S. (2010).
10
c. History of Common Law Dram-Shop Liability in Colorado
In order to fully understand the issue in this case, it is
necessary to examine the historical interplay between common law
and statutory dram-shop liability in Colorado and the role that
the concept of foreseeability has played.
At common law neither
an intoxicated person nor a person injured by an intoxicated
person had a remedy against the provider of the alcohol.
v. Nasby, 770 P.2d 1250, 1253 (Colo. 1989).
Lyons
The rationale
behind the rule was that the consumption of alcohol, rather than
the provision of it, was the proximate cause of any injuries
suffered.
Sigman v. Seafood Ltd. P‟ship, 817 P.2d 527, 529
(Colo. 1991).
As such, responsibility was placed entirely on
the shoulders of the person who actually consumed the alcohol.2
The wisdom of the common law rule was brought into
question, however, by “the shift from commingling alcohol and
horses to commingling alcohol and horsepower.”
at 1254.
Lyons, 770 P.2d
The resulting increase in the severity and number of
alcohol-related injuries caused a number of jurisdictions,
including Colorado, to reject the traditional common law rule in
2
Nevertheless, since 1879, Colorado has provided a narrow
exception to the common law rule which provides a cause of
action for furnishing alcohol to a habitual drunkard after
appropriate notice has been given regarding the individual‟s
status as a habitual drunkard. § 13-21-103, C.R.S. (2010); see
also Largo v. Crespin, 727 P.2d 1098, 1105-07 (Colo. 1986).
11
order to permit negligence actions against vendors of alcohol.
Id.
The predecessor to section 12-47-801, which is identical to
the current statute in all aspects pertinent to our analysis,
was enacted on the heels of case law that expanded the liability
of an alcohol vendor.
In 1986, this court recognized a common
law dram-shop action against vendors of alcoholic beverages by
third parties injured by intoxicated persons.
Largo v. Crespin,
727 P.2d 1098, 1103-04 (Colo. 1986); Floyd v. Bartley, 727 P.2d
1109, 1110 (Colo. 1986).
We also extended the right to permit
first-party recovery by an intoxicated person who injures
himself against the vendor that supplied the alcoholic
beverages, holding that a tavern owner owes an intoxicated
patron a duty of care not to serve that person alcohol.
770 P.2d at 1254.
Lyons,
This now-abolished common law dram-shop
action included all the elements of a traditional negligence
claim.
Accordingly, the plaintiff had to prove that the
defendant owed the plaintiff a duty, and that the defendant‟s
breach of that duty proximately caused damage to the plaintiff.
Largo, 727 P.2d at 1102.
In a traditional negligence claim such as the one we
recognized in Largo, the concept of foreseeability is central to
establishing proximate cause.
“Foreseeability is the touchstone
of proximate cause,” acting as a guidepost to delineate the
12
extent to which a defendant may be held legally responsible for
a plaintiff‟s injury.
Walcott v. Total Petroleum, Inc., 964
P.2d 609, 611 (Colo. App. 1998).
The proximate cause
requirement is only satisfied where it is foreseeable that the
defendant‟s negligence “will result in injuries to others and
where this negligence is a substantial factor in causing the
injuries sustained.”
Ekberg v. Greene, 196 Colo. 494, 497, 588
P.2d 375, 377 (1978).
Therefore, so long as it is foreseeable
that an injury will occur, a defendant may be liable for the
plaintiff‟s injuries even when the injury is directly produced
by the “intentionally tortious or criminal act of a third
party.”
Largo, 727 P.2d at 1103.
The test of foreseeability
does not require a defendant “to foresee the exact nature and
extent of the injuries or the precise manner in which the
injuries occur, but only that some injury will likely result in
some manner as a consequence of his negligent acts.”
HealthONE
v. Rodriguez, 50 P.3d 879, 889 (Colo. 2002) (emphasis added).
Our decision to permit a common law action against a liquor
licensee was grounded in the concepts of proximate cause and
foreseeability.
We expressly rejected the old common law rule
that the consumption of alcohol is a superseding cause of the
injury, breaking the chain of causation between the vendor‟s
conduct and the plaintiff‟s injuries.
Largo, 727 P.2d at 1103.
Instead, we held that the existence of proximate cause is a
13
question for the jury, permitting a jury to conclude that the
sale or service of alcohol was the proximate cause of a
plaintiff‟s injuries.
We emphasized the importance of
reasonable foreseeability in a proximate cause determination,
reiterating that even an “intentionally tortious or criminal act
of a third party does not break the causal chain if it is
reasonably foreseeable.”
Id. at 1103.
Therefore, our decision
in Largo is a rejection of a per se rule that consumption is
always the proximate cause of a plaintiff‟s injuries and a
determination that service of alcohol may be the proximate cause
of the injuries if the injury-producing conduct is reasonably
foreseeable.
Furthermore, we concluded that it is both
foreseeable and likely that serving an intoxicated person more
alcohol than he or she could safely consume would result in
injury.
Largo, 727 P.2d at 1102.
d. Analysis of the Current Dram-Shop-Liability Statute
Even as our decisions in Largo and Floyd expanded an
alcohol vendor‟s liability, we acknowledged that the impact
would be short-lived.
In 1986, while Largo and Floyd were
pending in our court, the General Assembly responded to the
lower appellate court decisions recognizing a common law right
of action against vendors of alcohol.
As a result, the General
Assembly enacted the predecessor to section 12-47-801, which
abolished any common law cause of action against a vendor of
14
alcohol beverages except under the narrow circumstances
described in the statute.
Id. at 1106 n.3.
Thus, the
legislature simultaneously abolished one cause of action and
created a new one, limiting the scope of liability according to
its own terms.
Although the express language of the statute
abolished the common law actions established in Largo and the
associated cases, the question we address today is whether
liability under section 12-47-801 requires proof that injury was
a foreseeable consequence of the sale or service of alcohol.
The plain language of the statute makes no mention of
reasonable foreseeability.
Nevertheless, the legislative
declaration focuses on proximate cause, raising the question of
whether liability under the statute requires or allows an
independent assessment of foreseeability as part of a proximate
cause limitation.
Consequently, it is necessary to closely
examine the terms of the statute.
Section 12-47-801 begins by not only abolishing any common
law cause of action against a vendor of alcohol beverages, but
also by reinstating the common law rule that consumption is the
proximate cause of injuries inflicted by an intoxicated person.
In doing so, “the legislature assigned the legal responsibility
for [negligent] acts to [the intoxicated] person even though
other causes, i.e., the provision of alcohol, led to the
result.”
Charlton, 815 P.2d at 951.
15
Through this language, the
legislature has expressly negated our holding as to proximate
cause in Largo, where we maintained that the provision of
alcohol, rather than the consumption, may be the proximate cause
of a plaintiff‟s injuries if the injury was foreseeable.3
Nevertheless, the legislature did not completely shield
liquor licensees from liability.
Instead, the dram-shop statute
permits liability under limited circumstances, which are
demarcated by a description of the circumstances under which the
exception to the reinstated common law rule applies.
As it
applies to liquor licensees, the statute reads that the
consumption, rather than the sale, service, or provision of
alcohol is the proximate cause of a plaintiff‟s injuries, except
when a liquor licensee willfully and knowingly serves an
underage or visibly intoxicated person.
Therefore, it follows
logically that when there is a willful and knowing sale of
3
The language of the original bill supports our conclusion that
the legislature was particularly focused on overruling the court
of appeals‟ decision, which we subsequently affirmed, regarding
proximate cause. The bill in its original form declared that
the statute should be interpreted to modify the holdings of
Floyd and Largo “in favor of a finding that in certain cases the
consumption of alcoholic beverages, including fermented malt
beverages, rather than the sale, service, or provision thereof
is the proximate cause of injuries or damages inflicted upon
another by an intoxicated person except as otherwise provided in
this section.” S.B. 86, 55th Gen Assemb., 2nd Reg. Sess. (Colo.
1986) (original version).
The enacted version of the statute
and its current embodiment replace the language about the Floyd
and Largo cases with a broader statement that “any common law
cause of action against a vendor of alcohol beverages is
abolished.”
16
alcohol to a visibly intoxicated person, the sale of alcohol is
the proximate cause of the plaintiff‟s injuries.
Because the criteria for proximate cause has been defined
by the statute, the statute, rather than a common law
foreseeability analysis, controls in assessing liability under
section 12-47-801.
Subsection (3) provides the elements that
must be proved to establish that a liquor licensee‟s sale or
service of alcohol is the proximate cause of a plaintiff‟s
injuries, and that consequently, the liquor licensee is liable
for the plaintiff‟s injuries.
Therefore, a plaintiff filing a
dram-shop claim against a liquor licensee must prove that the
licensee “willfully and knowingly sold or served” alcohol to an
underage or visibly intoxicated patron and that the plaintiff
suffered injuries “because of the [patron‟s] intoxication.”
By defining proximate cause in terms of the circumstances
under which it exists, the statute has eliminated foreseeability
from the proximate cause analysis.
Under the common law,
proximate cause, and in turn, liability, depended upon a finding
that injury was a foreseeable result of the sale.
In contrast,
under section 12-47-801, proximate cause and liability require
only willful, knowing service to a visibly intoxicated person
17
and a plaintiff who is injured because of the intoxication.4
Our
understanding of the statute is consistent with the General
Assembly‟s express intent to abolish the lower court holding
that we affirmed in Largo, which permitted a finding of
proximate cause when injury was a foreseeable consequence of the
provision of alcohol.
We decline to read an additional element of foreseeability
into the analysis because the legislature has expressly provided
the requirements for liability under the statute, and they do
not include a requirement that injury was foreseeable by the
vendor who served the intoxicated person.
Accordingly, sending
the question of foreseeability to the jury would contradict the
plain language of the statute.
So long as there is willful
service and injury resulting from intoxication, there is no
4
Build It argues that in Sigman we used language implying that a
proximate cause determination is still necessary under the
statute. In that case, while addressing an argument that the
statute was void for vagueness, we stated that “Under subsection
(3)(a)(I), the sale or service of alcoholic beverages by a
vendor may be the proximate cause of injuries inflicted on a
third party by an intoxicated patron if the vendor „willfully
and knowingly‟ sold or served any liquor to a minor or to a
patron „who was visibly intoxicated.‟” Sigman, 817 P.2d at 53132 (emphasis added). The statement in question, however, was
dicta, and our use of the word “may” instead of the word “is”
does not amount to a judicial holding that proximate cause
remains a question for the jury. Furthermore, such a holding
would be in contravention to the plain language of the statute,
which only uses the word “is” when defining proximate cause in a
dram-shop case.
18
requirement that the injury be a foreseeable consequence of the
sale or service of alcohol.
To the extent that Build It argues that our cases have
continued to address foreseeability even after the enactment of
section 12-47-801, we note that the case cited for this argument
addressed foreseeability not in regards to dram-shop liability
under 12-47-801, but in regards to a tavern‟s general duty to
protect patrons on the premises from injury.
In Observatory
Corp. v. Daly, we expressed a lack of concern over the dram-shop
claims premised on the tavern‟s service to a visibly intoxicated
person.
780 P.2d 462, 466 (Colo. 1989).
Instead, we engaged in
a lengthy analysis of the role of foreseeability as it relates
to a “tavern proprietor‟s legal duty of care to patrons and
other persons legitimately on the tavern premises.”
Id. at 467;
see also Vigil v. Pine, 176 Colo. 384, 388, 490 P.2d 934, 936
(1971) (addressing whether tavern owner should not serve person
known to have violent tendencies); Cubbage v. Leep, 137 Colo.
286, 289 323 P.2d 1109, 1110 (1958) (noting that there was no
evidence that any party was intoxicated in case about tavern
owner‟s duty to protect patrons).
Although we concluded that a
tavern proprietor is not “a virtual insurer of the safety of all
persons legitimately on its premises,” this determination was
completely separate from the tavern‟s well-established duty “not
19
to serve alcoholic beverages to a visibly intoxicated patron.”5
Id. at 466, 469.
Therefore, because we are not presented with
an issue of general premises liability in the present case, the
foreseeability analysis presented in Observatory is irrelevant
to our discussion of dram-shop liability.
Our understanding that foreseeability is not an element or
appropriate consideration under section 12-47-801 does not
transform the statute into a strict liability statute.
Liability under section 12-47-801 turns on proof that the liquor
licensee “willfully and knowingly” served a visibly intoxicated
person.
As a result, liability depends on a finding that the
liquor licensee had a particular mental state.
In fact, this
standard requires proof of a relatively high level of fault,
because it turns on the licensee having actual knowledge of the
patron‟s intoxicated state and willfully serving alcohol to the
person anyway.
It would not be enough that the licensee “should
have known” that the person was visibly intoxicated.
In
addition to the high level of fault required, the cap on
liability and the limited period for filing a claim will prevent
a landslide of claims against vendors of alcohol beverages.
5
The trial court‟s foreseeability analysis appears to come from
the language in the Observatory case discussing the tavern
owner‟s general duty to protect persons legitimately on the
premises.
20
IV.
Conclusion
For the reasons stated above, we affirm the judgment of the
court of appeals.
21
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