Bar can be sued for stabbing

By Jessica M. Karmasek | Jun 9, 2011


DENVER (Legal Newsline) - The Colorado Supreme Court said in a ruling Monday that it is not necessary or appropriate to consider whether an injury was a "foreseeable consequence" of the sale or service of alcohol.

The petitioners in the case are Build It and They Will Drink, 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 following a New Year's Eve Party held at Eden Nightclub. The unprovoked stabbing occurred about a block away from the club.

Following the stabbing, Strauch filed a number of claims against Build It, including general negligence and premises liability claims. He also filed a claim under the state's Dram Shop Liability statute.

The 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. It 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.

A trial court dismissed all of Strauch's 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.

The appeals court reversed only on the Dram Shop claim. It held that the common law doctrine of reasonable foreseeability does not apply in actions against alcohol vendors under the statute, and therefore that the trial court erred by considering whether Build It could have foreseen the attack.

The state's high court 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 statute.

The Court affirmed the judgment of the appeals court. Justice Alex J. Martinez authored the Court's opinion.

"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," the Court wrote.

"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."

The Court's decision is the latest in Dram Shop-related rulings.

The New Jersey Supreme Court, in a ruling last week, upheld an appellate court decision to permit persons convicted of a DUI offense to sue restaurants for injuries they cause to themselves.

The case stems from a 2006 incident in which a man crashed his motorcycle into a car and injured himself. His blood alcohol level was nearly two-and-a-half times the legal limit. He pleaded guilty to a DWI charge but later filed suit against Tiffany's Restaurant in Toms River under the state's Dram Shop Act.

From Legal Newsline: Reach Jessica Karmasek by e-mail at

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