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Colorado Court of Appeals

Mitton v. Danimaxx of Colorado, Inc.

2023 COA 18. No. 19CA0984. Colorado Dram Shop Act—Civil Liability.

February 23, 2023

Ward consumed multiple alcoholic beverages at a restaurant. Then, while intoxicated, she drove to Danimaxx of Colorado, Inc., d/b/a Breckenridge Market & Liquor (the Market), where she purchased a 12-pack of beer and a bottle of tequila. Ward drove from the Market; lost control of her car; and struck another vehicle, killing its two occupants. The liquor that Ward purchased at the Market was found unopened in her car. Ward was convicted of multiple crimes, and two Market employees were convicted of selling alcohol to a visibly intoxicated person.

As relevant here, plaintiffs Mitton and the Woods, the surviving family members of the two deceased occupants, sued the Market under the Colorado Dram Shop Act (the Act). Plaintiffs filed a CRCP 56(h) motion for determination of a question of law, asking the district court to rule that the Market could be found liable for damages under the Act even though Ward did not consume the alcohol it sold to her. The Market moved for summary judgment, asserting that it could not be liable under the Act because Ward’s intoxication was not due to the Market’s alcohol sale. The district court agreed and entered summary judgment for the Market.

On appeal, plaintiffs argued that § 44-3-801(3)(a) of the Act is ambiguous, and based on public policy and analogous caselaw from other states, the only requirements for the Act’s application are that (1) the claimant is suing the alcoholic beverages vendor, (2) the claimant was injured by an intoxicated person, and (3) the defendant-vendor provided the intoxicated person with one or more alcoholic beverages. However, the statutory language is unambiguous, and it requires a showing that the driver who caused the injury could have become intoxicated due to the vendor’s sale of alcohol to her. Because that was not the case here, the Market was not subject to civil liability under the Act and the district court did not err.

The order was affirmed.

Official Colorado Court of Appeals proceedings can be found at the Colorado Court of Appeals website.

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