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Wiltberger v. Lee-Ward Partners, LLC

United States District Court, D. Colorado

September 18, 2017

RYAN WILTBERGER, Plaintiff,
v.
LEE-WARD PARTNERS, LLC, a Colorado corporation d/b/a The Thirsty Parrot Bar & Grill, a/k/a The Thirsty Parrot, Defendant.

          OPINION AND ORDER ON PLAINTIFF'S MOTION TO RECONSIDER RULING ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

          MARCIA S. KRIEGER UNITED STATES DISTRICT COURT.

         THIS MATTER comes before the Court on Plaintiff Ryan Wiltberger's Motion for Reconsideration/Clarification (#53).

         I. Jurisdiction and Legal Standard

         Mr. 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.

         There 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).

         An 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.

         II. Issue Presented

         In the 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.

         Mr. 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.

         III. Discussion

         A. Applicability of the Dram Shop Act

         In the 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?

         As 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.

         Here, 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 ΒΆΒΆ 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 ...


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