Wiltberger v. Lee-Ward Partners, LLC

Filing 51

OPINION AND ORDER granting in part and denying in part 44 Motion for Summary Judgment by Chief Judge Marcia S. Krieger on 7/19/17. (pglov)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Marcia S. Krieger
Civil Action No. 16-cv-00307-MSK-NYW
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 DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

THIS 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).
I.

Jurisdiction
Mr. 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. § 1332.
II.

Factual Background
The 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.
On 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
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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.
Witnesses 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.
The hit 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

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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.
III.

Standard of Review
Rule 56 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?
A trial 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. 2013).
The 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).

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Motions 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 and the motion
must be denied. See Leone v. Owsley, 810 F.3d 1149, 1153 (10th Cir. 2015); Schneider v. City of
Grand Junction Police Dep’t, 717 F.3d 760, 767 (10th Cir. 2013).
A different circumstance arises when the movant does not have the burden of proof. In
this circumstance, the movant contends that the non-movant lacks sufficient evidence to establish
a prima facie case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). The moving party must
identify why the respondent cannot make a prima facie showing; that is, why the evidence in the
record shows that the respondent cannot establish a particular element. See Collins, 809 F.3d at
1137. If the respondent comes forward with sufficient competent evidence to establish a prima
facie claim or defense, then a trial is required. Conversely, if the respondent’s evidence is
inadequate to establish a prima facie claim or defense, then no factual determination of that
claim or defense is required and summary judgment may enter. See Shero v. City of Grove,
Okla., 510 F.3d 1196, 1200 (10th Cir. 2007).

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IV.

Discussion
A. The Dram Shop Act Claim
Colorado’s Dram Shop Act, C.R.S. § 12-47-801, outlines civil liability imposed on a

vendor of alcoholic beverages for a plaintiff’s injuries inflicted by an intoxicated person. As
relevant to this case, subsection (3)(a) of the statute reads:
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) it is proven that the licensee willfully and knowingly sold or served any alcohol
beverage to such person who was… visibly intoxicated….
To successfully assert a claim against a licensee1 under the Dram Shop Act, a plaintiff
must prove that the defendant willfully and knowingly both (i) served alcohol to an individual;
and (ii) that the individual was visibly intoxicated. Christoph v. Colo. Commc’n Corp., 946 P.2d
519, 522 (Colo. App. 1997). At the summary judgment phase, the plaintiff may present either
direct or circumstantial evidence to establish each element. For example, a plaintiff might
allege that third parties saw the individual purchasing large quantities of alcohol and observed
the individual’s “loud and rowdy” behavior. The Thirsty Parrot contends that Mr. Wiltberger
cannot offer sufficient evidence of either element to establish a prima facie claim.
As to the first element, Mr. Wiltberger offers the testimony of Cresta Spitzmiller. She
testified that she remembered Mr. Alvarado arriving at the bar, and that he offered to buy her a
drink. Though she turned down his offer, Ms. Spitzmiller testified that she saw both Mr.
Alvarado and Mr. Higuero buy drinks from the Thirsty Parrot that night.

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The Thirsty Parrot appears to admits that it is a licensee as that term is used in the Dram
Shop Act. An independent review of the definitions provided in C.R.S. § 12-47-103 convinces
the Court that the Thirsty Parrot is in fact a licensee.
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Regarding the second element – whether the assailants were visibly intoxicated – the
evidence is conflicting. Mr. Wiltberger described both Mr. Alvarado and Mr. Higuero as
intoxicated and stated that the EMTs who helped him thought they were as well. Jordan Bigelow
testified that he thought that Mr. Alvarado had “reached his limit, where, he didn’t know what
was going on,” and that he had been “cut-off” by the bartender because of his intoxication. As
for the other participant in the fight, Mr. Higuero, one responding police officer, Officer
Markwell, composed a written statement 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. See Docket # 47-8.
However, Ms. Spitzmiller testified that Mr. Alvarado did not appear intoxicated because
he was not slurring his words, unsteady on his feet, or showing any other signs of intoxication.
Officer Ainsworth, a police officer who responded to the scene and restrained Mr. Alvarado, also
described him as cooperative and not visibly intoxicated.
The showing made by Mr. Wiltberger, if taken as true, is sufficient to make a prima facie
claim under the Dram Act. Evidence to the contrary creates a genuine issue of material fact
requiring a trial. Accordingly, the Thirsty Parrot’s Motion for Summary Judgment on Mr.
Wiltberger’s Dram Shop Act claim is DENIED.
B. The Colorado Premises Liability Claim
The Thirsty Parrot’s first argument is that Mr. Wiltberger’s CPLA is preempted by the
Dram Act which precludes all civil liability – including liability arising from both a common law
cause of action and a civil statutory violation – in cases involving claims against the vender of
alcoholic beverages by plaintiffs injured by an intoxicated patron of that vender. This is a

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threshold legal issue. If the Thirsty Parrot is correct, then it does not matter whether a prima
facie showing on the premises liability claim has been made.
Unfortunately, the Dram Shop Act is not entirely clear on its face as to whether it
preempts only common law claims, or whether it preempts all civil claims, including those
arising under statute (such as the CPLA). On the one hand, as noted above, C.R.S. 12-47-801
provides that “no licensee [will be] civilly liable” for covered claims against the vendor of
alcoholic beverages except as provided in the Dram Shop Act. This statutory language makes
no distinction between civil liability arising from the common law and civil liability arising from
a statute. Nor is this the only instance in which C.R.S. 12-47-801 uses such broad language to
define its preemptive scope. Other subsections in the statute similarly preclude all “civil
liability” (except as set forth therein) for claims involving social hosts and culinary school
instructors. On the other hand, when the Colorado General Assembly passed the Dram Shop
Act, it included what appears to be a sort of statement of legislative purpose codified in the
statute itself. The relevant provision specifies:
The general assembly hereby finds, determines, and declares that this section shall be
interpreted so that any common law cause of action against a vendor of alcohol beverages
is abolished and that in certain cases the consumption of alcohol beverages rather than the
sale, service, or provision thereof is the proximate cause of injuries or damages inflicted
upon another by an intoxicated person except as otherwise provided in this section . . .
Id. at (1) (emphasis added). This subsection could be taken to imply that the intent of the
legislature was only to preempt common law claims against the vendor of alcoholic beverages. It
is silent as to any preemptive effect of the Dram Shop Act on civil statutory claims.
The question before the Court, then, is whether the reference to “any common law cause
of action” in subsection (1) of the statute effectively limits the scope of the “no licensee [will be]
civilly liable” language in subsection (3) of that law to encompass only civil claims arising from

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the common law. Because this is a diversity case, the question is answered by application of
Colorado law.
Colorado courts have held that declarations of legislative purpose or policy can be useful
when construing or interpreting a statute, at least when that statute is ambiguous. See, e.g.,
People v. Cross, 127 P.3d 71, 74-76 (Colo. 2006), However, as a general rule, a broad statement
or declaration of legislative purpose – even when codified into statute – cannot be used to create
an ambiguity in an otherwise unambiguous more-specific statutory provision. See United States
v. Husted, 545 F.3d 1240, 1245-46 (10th Cir. 2008).
The Thirsty Parrot’s that subsection (3)(a)’s mandate that “no licensee [will] be civilly
liable” encompasses both common law and statutory civil claims is founded on a decision from
the Colorado Court of Appeals, Strauch v. Build It and They Will Drink It, 226 P.3d 1235 (Colo.
App. 2009), which addresses the precise issue. In Strauch, the plaintiff was stabbed by an
intoxicated person a block or so away from a nightclub at which the assailant had been drinking.
The plaintiff brought a number of claims including negligence, premises liability under the
CPLA, and Dram Shop liability. The trial court dismissed all claims against the defendant. The
Colorado Court of Appeals reversed the dismissal of the Dram Shop Act claim but affirmed
dismissal of the CPLA claim. In doing so, it stated:
The [trial] court properly entered judgment for defendants on the remaining claims
alleging civil conspiracy, negligence, and violations of the premises liability statute. The
Colorado statute provides the exclusive civil remedy against licensed alcohol vendors and
their agents in cases such as this. [C.R.S. §] 12–47–801(3)(a) makes explicit that “[n]o
licensee is civilly liable” under these circumstances except as provided therein.
226 P.3d at 1239 (emphasis added). The Colorado Supreme Court subsequently granted
certiorari with respect to another (unrelated) issue in the case, and without addressing the
interplay between the Dram Act and the CPLA, it affirmed. Build It & They Will Drink, Inc. v.
Strauch, 253 P.3d 302, 304 (Colo. 2011).
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The Thirsty Parrot argues that because the Colorado Supreme Court did not review the
conclusion of the Colorado Court of Appeals that the preemptive effect of the Dram Shop Act
extends to CPLA statutory claims, that aspect of the decision remains in effect. The Thirsty
Parrot is correct. Where, as apparently was the case in Strauch,2 the Colorado Supreme Court
denies a petition for certiorari on one or more issues, “[t]he denial of certiorari does not
determine the merits of the case, but reflects only that the case is not properly postured for
review.” Allison v. Indus. Claim Appeals Office, 884 P.2d 1113, 1118 (Colo. 1994). As such,
the fact that the Colorado Supreme Court chose not to review the Colorado Court of Appeals’
conclusion in Strauch that the Dram Shop Act preempted the plaintiff’s CPLA claim does not
affect that aspect of the court’s holding. It remains just as instructive or precedential as it would
be if the Colorado Supreme Court had declined certiorari in its entirety, or if the losing party had
not sought certiorari in the first place.
That then raises the question of how much weight the Court of Appeals’ Strauch decision
should be afforded by this Court. The general rule for federal courts is that intermediate state
appellate decisions can provide persuasive – though not binding – guidance in diversity
jurisdiction cases involving unsettled questions of state law. Clark v. State Farm Mut. Auto. Ins.
Co., 319 F.3d 1234, 1240 (10th Cir. 2003). “Although [federal courts] are not bound by a lower
state court decision, decisions of a state’s intermediate appellate courts are some evidence of
how the state supreme court would decide the issue, and [federal courts] can consider them as

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The Colorado Supreme Court’s order granting certiorari in the case specifically stated
that review was limited to “[w]hether the court of appeals erred in holding that reasonable
foreseeability (proximate cause) of the injury-causing event is not an element, or an appropriate
consideration, in determining the liability of a licensee under [C.R.S. § 12-47-801, C.R.S.],” and
it was “DENIED AS TO ALL OTHER ISSUES.” Build It and They Will Drink It v. Strauch,
Case No. 09-SC-1011, 2010 WL 894040 (Mar. 15, 2010).
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such, even if they are not binding precedent under state law.” Id.; accord May v. Travelers Prop.
Cas. Co. of Am., 263 Fed. App’x 673, 680 (10th Cir. 2008).
The Court finds that the Colorado Court of Appeals’ reasoning represents Colorado law
for several reasons. First, C.R.S. § 12-47-801(3)(a)’s admonition that “no licensee [to sell
alcoholic beverages] is civilly liable” for an injury caused by an intoxicated patron of that
licensee-vendor is not ambiguous . It is broad, to be sure, but it nonetheless encompasses on its
face any “civil liability” without distinguishing between common law and statutory civil claims.
The fact that the Colorado General Assembly chose to repeat the broad “civil liability”
formulation multiple times in the statute underscores the seemingly affirmative intent of the
legislature to give the Dram Shop Act preemption provision broad scope. There is no doubt that
the reference to “any common law cause of action” in subsection (1) of the statute appears to be
contrary to the broad “civil liability references”3, but as a statement of legislative intent or
purpose, it cannot be used to render a subsequent, more specific substantive statutory provision
ambiguous. Husted, 545 F.3d at 1245-46.
The relative longevity of Strauch also strongly supports the view that it was correctly
decided and remains good law. The Colorado Court of Appeals handed down the decision in
2009. Yet despite the fact that Strauch is the only appellate decision to interpret and construe the
preemptive effect of the Dram Shop Act on statutory claims against licensee-vendors, in all the
time since, the Colorado General Assembly has never taken any action to change the statute to

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Moreover, it is not entirely clear that the statement of legislative purpose actually does
contradict or is inconsistent with an interpretation of C.R.S. § 12-47-801 that extends its
preclusive effect to both common law and statutory civil claims. The applicable language
merely indicates that the Dram Shop Act should be interpreted to preempt common law causes of
action; it says nothing about whether it also might preempt statutory civil claims. Insofar as a
subsequent provision goes on to also preempt or preclude such statutory claims, it could be
viewed as merely supplementing that legislative purpose or intent, and not undercutting it.
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address that issue and reverse the holding in the case. This includes in 2014, when the
legislature specifically amended C.R.S. § 12-47-801 to reflect recent statutory codification
changes – but it did not make any effort to alter the law to say that it was only intended to
preempt or preclude common law claims against covered vendors, and not all civil claims. 2014
Colo. Legis. Serv. Ch. 387 (S.B. 14-129) (West). That is a very telling omission for the purposes
of the Court’s analysis. “Under an established rule of statutory construction, the [Colorado]
legislature is presumed, by virtue of its action in amending a previously construed statute without
changing the portion that was construed, to have accepted and ratified the prior judicial
construction.” People v. Swain, 959 P.2d 426, 430–31 (Colo. 1998). This principle applies fully
where the prevailing judicial interpretation of the statute in question was handed down by the
Colorado Court of Appeals and not the Colorado Supreme Court. See, e.g., A.C. Excavating v.
Yacht Club II Homeowners Ass’n, 114 P.3d 862, 869 (Colo. 2005).
Mr. Wiltberger’s two primary arguments on the Dram Shop Act preemption issue are not
persuasive. First, he cites a Colorado Court of Appeals decision, Legro v. Robinson, 328 P.3d
238 (Colo. App. 2012), involving the interplay between the CPLA and the Colorado Dog Bite
Statute (C.R.S. § 13-21-124). Mr. Wilberger argues that because the plaintiff in that case was
permitted to pursue claims under both statutes, he should be allowed to proceed under both the
CPLA and Dram Shop Act. As Thirsty Parrot correctly points out, however, the Dog Bite
Statute does not have the sort of “exclusive remedy”or preemption language that is present in the
Dram Shop Act. The Legro case therefore is wholly inapposite.
Second, Mr. Wiltberger cites to a Colorado state district court case in which the plaintiff
apparently was permitted to proceed with both CPLA and Dram Shop Act claims. Setting aside
the fact that a Colorado state trial court decision has no precedential value, there is no indication

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that the preemption issue was raised in the case. It is entirely possible that the defendant in that
proceeding determined that other arguments or theories were more likely to be successful, or that
the defendant was unaware that a preemption argument even existed, and it did not raise it.
In sum, (i) the Colorado General Assembly defined the scope of Dram Shop Act
preemption to broadly extend to all civil claims without distinguishing between common law and
statutory claims; (ii) it did so at multiple places in the relevant statute; (iii) the only Colorado
appellate court to have considered this issue endorsed that broad scope of preemption, holding
that it encompasses CPLA claims; and (iv) the Colorado legislature has never taken any step to
change the Dram Shop Act in light of this prevailing interpretation, despite amending the statute
in 2014. The Court holds that C.R.S. § 12-47-801(3)(a) should be interpreted to bar Mr.
Wiltberger’s CPLA claim against the Thirsty Parrot involving his injury allegedly caused by an
intoxicated patron of that establishment. The Thirsty Parrot’s Motion for Summary judgment on
this claim is GRANTED.
V.

Conclusion
The Court hereby DENIES IN PART and GRANTS IN PART the Thirsty Parrot’s

Motion for Summary Judgment (# 44) as follows. Summary Judgment is DENIED on Plaintiff’s
Colorado Dram Shop Act claim (First Claim for Relief). That claim will proceed to trial.
Summary Judgment is GRANTED on the Plaintiff’s Colorado Premises Liability Act claim
(Second Claim for Relief) which is dismissed. Within fourteen days of this Order the parties are

directed to jointly contact chambers at [phone] to set this matter for a final pretrial
conference.

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DATED this 19th day of July, 2017.
BY THE COURT:

Marcia S. Krieger
United States District Court

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