United States District Court, D. Colorado
OPINION AND ORDER ON PLAINTIFF'S MOTION TO
RECONSIDER RULING ON DEFENDANT'S MOTION FOR SUMMARY
S. KRIEGER UNITED STATES DISTRICT COURT.
MATTER comes before the Court on Plaintiff Ryan
Wiltberger's Motion for Reconsideration/Clarification
Jurisdiction and Legal Standard
Wiltberger moves the Court to reconsider its prior July 19,
2017 Order (#52) granting in part and denying in part
Defendant The Thirsty Parrot Bar and Grill's (the
“Thirsty Parrot”) Motion for Summary Judgment.
is no formal mechanism for a “motion for
reconsideration” under federal statute or the Federal
Rules of Civil Procedure. See Hawkins v. Evans, 64
F.3d 543, 546 (10th Cir. 1995). Nonetheless, federal courts
generally will permit a party to file a reconsideration
motion under certain circumstances; the court's treatment
of such a motion will depend on whether the order is a final
order or an interlocutory one. Here, Mr. Wiltberger seeks
review of an interlocutory order. Haas v. Tulsa Police
Dep't, 58 Fed. App'x 429, 431 (10th Cir. 2003).
interlocutory motion for reconsideration “invok[es] the
district court's general discretionary authority to
review and revise interlocutory rulings prior to entry of
final judgment.” Fye v. Okla. Corp.
Comm'n, 516 F.3d 1217, 1223 n.2 (10th Cir. 2008)
(internal quotation omitted); see also Nat. Bus. Brokers,
Ltd. v. Jim Williamson Prods., Inc., 115 F.Supp.2d 1250,
1255 (D. Colo. 2000). This inherent power is not governed by
rule or statute and is rooted in the court's equitable
power to process litigation to a just and equitable
conclusion. Nat. Bus. Brokers, 115 F.Supp.2d at
1256. A court has broad discretion to reconsider and alter
its interlocutory orders, but as a practical matter, a party
seeking reconsideration must set forth facts or law of a
strongly convincing nature if that party is going to succeed
in convincing the Court to reverse its prior decision.
Court's July 19, 2017 Order, the Court held that Mr.
Wiltberger's Colorado Premises Liability Act
(“CPLA”) claim was preempted by the Colorado Dram
Shop Act (the “Dram Shop Act”), which expressly
bars any civil action (except in limited circumstances)
against a licensed vendor of alcoholic beverages by a person
who was injured by an intoxicated patron. Mr. Wiltberger
challenges that determination. He argues that the CPLA claim
is premised on the theory that the Thirsty Parrot provided
inadequate security to protect its patrons, and thus is
unrelated to the Thirsty Parrot's service of alcohol.
According to Mr. Wiltberger, because his CPLA claim is (at
least possibly) independent of any alcohol-related
allegations, it should not be preempted by the Dram Shop Act.
Wiltberger vaguely alluded to this argument in a single
sentence in his summary judgment opposition, and he did not
flesh it out to any degree. However, because he did at least
mention it, the Court concludes that it warrants at least
discussion and analysis. Therefore, the Court reconsiders its
prior ruling, but the outcome remains unchanged.
Applicability of the Dram Shop Act
Court's prior Order, the Court did not address whether
the Dram Shop Act preempts Mr. Wiltberger's claim based
on the Defendant's alleged lack of adequate security.
That is new question which can be stated succinctly: does the
Dram Shop Act preempt a claim involving an intoxicated person
that purportedly arises from a cause in addition to the
conduct of that intoxicated person?
discussed in the prior Order, the Dram Shop Act broadly
encompasses any civil action seeking redress “for any
injury… 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.” C.R.S. §
12-47-801(3)(a). The Colorado Supreme Court has interpreted
that language to mean that the Dram Shop Act “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.”
Build It & They Will Drink, Inc. v. Strauch, 253
P.3d 302, 303 (Colo. 2011) (emphasis added); accord
Westin Operator, LLC v. Groh, 347 P.3d 606, 609 (Colo.
2015). Under this formulation, if the injury is caused by an
intoxicated person, then the Dram Act preempts claims against
the vendor who sold the liquor to the intoxicated person. The
only requirements for application of the Dram Shop Act are
that: (1) the claimant is suing the vendor of alcoholic
beverages; (2) the claimant was injured by an intoxicated
person; and (3) the defendant-vendor provided the intoxicated
person with one or more alcoholic beverages. There is no
provision that exempts application of the Dram Shop Act if
there is an intervening or contributory cause for the injury
that is unrelated to the tortfeasor's intoxication.
Indeed, under the foregoing Colorado authorities interpreting
and applying the Dram Shop Act, direct causation of the
injury does not appear to be a strict prerequisite for
application of the statute. Instead, those authorities
primarily focus on the intoxicated state of the individual
causing the injury.
Mr. Wiltberger's theory of the case is that two
individuals served alcohol by the Thirsty Parrot were
inebriated, and they assaulted and injured him. He
specifically alleges in his complaint that the two men were
“visibly intoxicated, ” and he incorporates that
allegation into his CPLA count. (#39, at
¶¶ 15, 26.) Indeed, Mr. Wiltberger's position
throughout the litigation - including in the summary judgment
proceedings that are the subject of his Motion for
Reconsideration - has been that his assailants were
intoxicated. Therefore, all of the requirements necessary to
invoke the Dram Shop are met. Mr. Wiltberger is suing a
licensed vendor of alcoholic beverages (the Thirsty Parrot);
he is claiming that he suffered an injury from an intoxicated
person (or, in his case, two intoxicated individuals); and he
is claiming that those individuals were ...