United States District Court, D. Colorado
OPINION AND ORDER ON DEFENDANT'S MOTION FOR
S. Krieger Judge
MATTER comes before the Court on the Defendant Lee-Ward
Partners, LLC, d/b/a The Thirsty Parrot Bar & Grill's
(Thirsty Parrot) Motion for Summary Judgment (# 44), the
Plaintiff Ryan Wiltberger's Response (# 47), and the
Thirsty Parrot's Reply (# 50).
Wiltberger is a California resident. Lee-Ward Partners, LLC
is a Colorado limited liability company with two members:
Justin Myers, a Colorado resident, and Ralph Gillmore, also a
Colorado resident. The amount in controversy exceeds $75,
000. The Court exercises jurisdiction pursuant to 29 U.S.C.
following is a summary of the facts viewed in the light most
favorable to the non-movant, Mr. Wiltberger. More factual
details are provided as needed in the Court's discussion.
February 13, 2015, Mr. Wiltberger went to the Thirsty Parrot,
a nightclub located in Colorado Springs. He purchased a beer
on the second floor, and later, he went back to the same bar
area to purchase a second. After the bartender handed him his
second drink, he turned and took “two steps”
before he was assaulted. He was “punched, ” then
“hit again, and in between all that . . . stabbed in
the eye” with a glass. A bartender, Nana Debordes,
identified the assailant, later identified as Moses Alvarado,
who had picked up a “bucket glass” from a stack
on the bar and used it to strike Mr. Wiltberger in the face.
A second bartender, Jordan Gambucci, confirmed this account.
testified that there were signs of a conflict arising before
Mr. Wiltberger's assault. Ms. Gambucci observed that Mr.
Alvarado was “extremely animated and agitated as he was
throwing his hands in the air and moving as though he was
trying to get at somebody.” Mr. Debordes also told
police officers that before the assault Mr. Alvarado was
“being aggressive and confrontational.” While
medical and law enforcement personnel were assisting Mr.
Witlberger before he was transported to the hospital, he
identified Mr. Alvarado as his attacker. Mr. Wiltberger also
identified a second participant in the assault, Eduardo
Higuero. Mr. Wiltberger described both men as intoxicated,
and he subsequently indicated that the EMTs and the police
agreed that the men were drunk. One of the responding police
officers, Officer Markwell, composed a written statement
about the night, in which he described Mr. Higuero as
“showing several clear signs of intoxication, ”
including watery eyes, slurred speech, swaying, and a strong
odor of alcohol. As for whether Mr. Alvarado was intoxicated,
Mr. Bigelow testified that he believed Mr. Alvarado had
previously been “cut off” because he had
“reached his limit.” However, other witnesses did
not believe Mr. Alvarado was intoxicated.
to Mr. Wiltberger's eye with a glass object caused two
cuts to his eye, and permanently diminished his sight. He
asserts two claims for relief: violation of the Colorado Dram
Shop Act, C.R.S. § 12-47-801, and violation of the
Colorado Premises Liability Act, C.R.S. § 13-21-115 (the
CPLA). The Thirsty Parrot moves for summary judgment in its
favor on both claims.
Standard of Review
of the Federal Rules of Civil Procedure facilitates the entry
of a judgment only if no trial is necessary. See White v.
York Intern. Corp., 45 F.3d 357, 360 (10th Cir. 1995).
Thus, the primary question presented to the Court in
considering a Motion for Summary Judgment or a Motion for
Partial Summary Judgment is: is a trial required?
is required if there are material factual disputes to
resolve. As a result, entry of summary judgment is authorized
only “when there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a
matter of law.” Fed.R.Civ.P. 56(a); Savant Homes,
Inc. v. Collins, 809 F.3d 1133, 1137 (10th Cir. 2016). A
fact is material if, under the substantive law, it is an
essential element of the claim. See Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is
genuine if the conflicting evidence would enable a rational
trier of fact to resolve the dispute for either party.
Becker v. Bateman, 709 F.3d 1019, 1022 (10th Cir.
consideration of a summary judgment motion requires the Court
to focus on the asserted claims and defenses, their legal
elements, and which party has the burden of proof.
Substantive law specifies the elements that must be proven
for a given claim or defense, sets the standard of proof, and
identifies the party with the burden of proof. See
Anderson, 477 U.S. at 248; Kaiser-Francis Oil Co. v.
Producer's Gas Co., 870 F.2d 563, 565 (10th Cir.
1989). As to the evidence offered during summary judgment,
the Court views it the light most favorable to the non-moving
party, thereby favoring the right to trial. See Tabor v.
Hilti, Inc., 703 F.3d 1206, 1215 (10th Cir. 2013).
for summary judgment generally arise in one of two contexts -
when the movant has the burden of proof and when the
non-movant has the burden of proof. Each context is handled
differently. When the movant has the burden of proof, the
movant must come forward with sufficient, competent evidence
to establish each element of its claim or defense.
See Fed. R. Civ. P. 56(c)(1)(A). Presumably, in the
absence of contrary evidence, this showing would entitle the
movant to judgment as a matter of law. However, if the
responding party presents contrary evidence to establish a
genuine dispute as to any material fact, a trial is required