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Przekurat v. Torres

Court of Appeals of Colorado, Seventh Division

December 1, 2016

Jared J. Przekurat, by and through his parent, co-guardian, co-conservator and next friend, Jerome Przekurat, Plaintiff-Appellant,
v.
Christopher Torres, Samuel S. Stimson, Peter Stimson, and Mitchell Davis, Defendants-Appellees.

         Boulder County District Court No. 12CV540 Honorable Judith L. LaBuda, Judge Honorable Bruce Langer, Judge

         JUDGMENT AFFIRMED

          Ciccarelli & Associates, P.C., A. Troy Ciccarelli, Littleton, Colorado; The Fowler Law Firm, LLC, Timms R. Fowler, Fort Collins, Colorado, for Plaintiff-Appellant

          Hall & Evans, L.L.C., Alan Epstein, Denver, Colorado; Ray Lego & Associates, Thomas E. Hames, Greenwood Village, Colorado, for Defendant-Appellee Christopher Torres

          Prendergast & Associates, P.C., Paul A. Prendergast, Littleton, Colorado, for Defendants-Appellees Samuel S. Stimson and Peter Stimson

          Campbell, Latiolais & Averbach, LLC, Colin C. Campbell, Kirsten M. Dvorchak, Denver, Colorado, for Defendant-Appellee Mitchell Davis

          OPINION

          BERGER JUDGE.

         ¶ 1 In 2005, the General Assembly amended the Colorado Dram Shop Act, section 12-47-801, C.R.S. 2016, to impose civil liability not only when a social host knowingly served alcoholic beverages to a person under the age of twenty-one, but also when the social host "knowingly provided the person under the age of twenty-one a place to consume an alcoholic beverage." § 12-47-801(4)(a)(I); see Ch. 282, sec. 6, § 12-47-801, 2005 Colo. Sess. Laws 1244-45. No Colorado appellate court has addressed the meaning of the 2005 amendments; this case requires us to do so.

         ¶ 2 Plaintiff, Jared J. Przekurat, was severely injured after Hank Sieck drove Przekurat's car home from a party and was involved in a catastrophic single-car accident. Sieck was highly intoxicated at the time of the accident and was under the age of twenty-one.

         ¶ 3 Przekurat claimed that the four hosts of the party, defendants Christopher Torres, Samuel S. Stimson, Peter Stimson, and Mitchell Davis (the hosts), were liable for his damages under the 2005 amendments to the Dram Shop Act because the hosts "knowingly provided [Sieck] a place to consume an alcoholic beverage." In granting the hosts' summary judgment motion, the district court rejected Przekurat's expansive interpretation of the 2005 amendments and determined that Przekurat failed to establish that there were disputed issues of material fact on whether any of the hosts knew that Sieck was under the age of twenty-one or that he was drinking alcohol at the party.

         ¶ 4 We conclude that the trial court correctly construed the 2005 amendments and also correctly determined that Przekurat failed to demonstrate a disputed issue of material fact regarding the hosts' knowledge that Sieck was underage and was drinking at the party. Accordingly, we affirm the summary judgment in favor of the hosts.

         ¶ 5 While we agree with Przekurat that the district court erred in denying on jurisdictional grounds his motion for reconsideration of summary judgment, that error does not require reversal or a remand.

         I. Relevant Facts and Procedural History

         ¶ 6 The hosts shared a house in Boulder. To celebrate Davis' twenty-fourth birthday and Torres' graduation from college, they planned a party at the house. The hosts invited numerous people to the party, hired a disc jockey, and provided two kegs of beer. Although the witnesses' testimony varied regarding the number of attendees at the party, it appears that at various times, between twenty to more than one hundred people attended.

         ¶ 7 Among the attendees were Przekurat, who was twenty-one years old at the time, and Sieck, who was twenty years old. Sieck did not know any of the hosts, but was invited to the party by his friend, Victor Mejia, who in turn had been invited not by one of the hosts, but by another person who was also involved in planning the party. The only indication that Sieck interacted with any of the hosts that night came from Mejia's deposition testimony, where he stated that he, Sieck, and some others encountered Torres in the kitchen of the house where the party was taking place. According to Mejia, Torres said to Mejia something like "I don't really know these other people, but I know you." There was no evidence in the record that Sieck (or anyone else) ever told the hosts that Sieck was under the age of twenty-one.[1]

         ¶ 8 Sieck apparently drank substantial amounts of alcohol at the party.[2] At approximately two o'clock in the morning, Sieck, Przekurat, and Mejia left the party in Przekurat's car, which Sieck drove. Sieck drove at speeds in excess of one hundred miles per hour before losing control of the car, driving off of the road, and colliding with an embankment. The car rolled several times, ejecting Przekurat. All three occupants of the car survived the crash, but Przekurat sustained catastrophic injuries, including brain damage, which rendered him incompetent and he now requires around-the-clock care for the rest of his life.

         ¶ 9 Przekurat's father sued the hosts on Przekurat's behalf, alleging, as pertinent to this appeal, liability under section 12-47-801(4)(a)(I) of the Dram Shop Act.

         ¶ 10 After his pre-discovery summary judgment motion was denied, Torres renewed his motion for summary judgment following the completion of discovery. He asserted that no evidence showed that he knew Sieck was drinking in his home or that Sieck was underage. The other three hosts moved for summary judgment on similar grounds.

         ¶ 11 Przekurat opposed the summary judgment motions, asserting that the hosts freely provided alcohol at the party, guests were invited without restriction, the hosts knew it was likely that people under the age of twenty-one would drink alcohol at the party, and many underage people drank alcohol at the party.

         ¶ 12 The district court granted summary judgment in favor of all the hosts, finding that there was no evidence "that Defendants had actual knowledge that Sieck was under the age of 21 and was either knowingly supplied alcohol by Defendants or knowingly allowed to consume alcohol on Defendants' property."

         ¶ 13 The court (with a different judge presiding) later denied Przekurat's motion to reconsider summary judgment not on the merits, but because it had been filed beyond the fourteen-day period prescribed by C.R.C.P. 59, thus supposedly depriving the court of jurisdiction.

         II. Interpretation of the "Social Host" Provision of the Colorado Dram Shop Act

         ¶ 14 Przekurat first argues that the district court erred when it held that section 12-47-801(4)(a)(I) of the Dram Shop Act requires actual knowledge of two separate elements: (1) that the defendant provided a place for the consumption of alcohol by a person under the age of twenty-one and (2) that the defendant knew that the person who consumed alcohol at that place was under the age of twenty-one. We hold that the district court correctly construed and applied the statute.

         ¶ 15 Statutory interpretation presents a question of law that we review de novo. Build It & They Will Drink, Inc. v. Strauch, 253 P.3d 302, 304 (Colo. 2011). "When interpreting a statute, we must ascertain and effectuate the intent of the General Assembly." Vanderborgh v. Krauth, 2016 COA 27, ¶ 8. To do so, we look first to the statutory language, giving words and phrases their plain and ordinary meanings according to the rules of grammar and common usage. § 2-4-101, C.R.S. 2016; Krol v. CF & I Steel, 2013 COA 32, ¶ 15.

         ¶ 16 "We read the language in the dual contexts of the statute as a whole and the comprehensive statutory scheme, giving consistent, harmonious, and sensible effect to all of the statute's language." Krol, ¶ 15. After doing this, if we determine that the statute is not ambiguous, we enforce it as written and do not resort to other rules of statutory construction. Id.

         ¶ 17 In enacting the Dram Shop Act, section 12-47-801, the General Assembly codified the common law rule that, except under limited circumstances, the consumption of alcohol is the proximate cause of injuries inflicted by an intoxicated person, not the provision of alcohol to that person. § 12-47-801(1); Build It, 253 P.3d at 307. Section 12-47-801 also codifies the limited exceptions to the general rule and thus provides the exclusive remedy for a plaintiff injured by an intoxicated person against a provider of alcoholic beverages. Build It, 253 P.3d at 305. As relevant here, section 12-47-801(4)(a)(I) provides:

No social host who furnishes any alcohol beverage is civilly liable to any injured individual . . . because of the intoxication of any person due to the consumption of such alcohol beverages, except when . . . [i]t is proven that the social host knowingly served any alcohol beverage to such person who was under the age of twenty-one years or knowingly provided the person under the age of twenty-one a place to consume an alcoholic beverage[.]

         ¶ 18 To decide this case, we must determine whether the word "knowingly, " which is not defined in the Dram Shop Act, applies to both the act of providing a place for a person to consume an alcoholic beverage and the age of the drinker, or, rather, as Przekurat contends, liability is established by proof only that the social host provided a "place to consume an alcoholic beverage" without regard to the social host's knowledge of the age of the drinker.

         ¶ 19 To decide this question, we look to the plain language of the 2005 amendments as well as to this court's decision in Dickman v. Jackalope, Inc., 870 P.2d 1261 (Colo.App. 1994). While Dickman addressed the statutory phrase "willfully and knowingly" in the context of the liability of liquor licensees for injuries to a person who was served alcohol by the licensees, it is nevertheless instructive. The statute addressed in Dickman provides:

No licensee is civilly liable to any injured individual or his or her estate for any injury to such individual or damage to any property suffered because of the intoxication of any person due to the sale or service of any alcohol beverage to such person, except when . . . [i]t is proven that the licensee willfully and knowingly sold or served any alcohol ...

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