In a decision issued Sept. 10, the Colorado Supreme Court ruled that a social host can only be held liable for injuries an intoxicated guest causes to another person if the host knowingly provided the underage guest a place to consume alcohol with knowledge the specific person was under age 21.
The court’s decision turned on the interpretation of the word “knowingly” in the Colorado Dram Shop Act Section 12-47- 801(4)(a)(I). House Bill 05-1183 amended the statute to impose civil liability when a social host knowingly provides a person under 21 a place to drink alcohol, in addition to liability for providing the alcohol itself. But the section begins with a general exemption from liability for social hosts providing alcohol, and knowingly providing alcohol or a place to consume it to an underage person is an exception.
In the underlying case, Jerome Przekurat sued on behalf of his son, Jared, for serious injuries he sustained from a crash as a passenger in a car driven by Hank Sieck. Sieck, then 20, had drunk a substantial amount of alcohol at a house party in Boulder hosted by defendants Christopher Torres, Samuel Stimson, Peter Stimson and Mitchell Davis. Afterward he left with Jared Przekurat and Victor Mejia, driving Przekurat’s car, and caused an accident in which Przekurat was thrown from the car.
Jerome Przekurat sued Torres, Samuel and Peter Stimson and Davis, claiming they should be held liable under the Dram Shop Act’s social host provision. Sieck did not know the hosts, and the district court record did not contain evidence that Sieck or anyone else told the hosts he was under 21.
The district court granted summary judgment in favor of the hosts, finding they had no actual knowledge that Sieck was under 21 and was either knowingly supplied alcohol the hosts or knowingly allowed to drink alcohol on their property. The Colorado Court of Appeals affirmed the decision in 2016. The Supreme Court also affirmed, concluding the Dram Shop Act’s language is unambiguous in its requirement that a social host who provides a venue to drink alcohol must have actual knowledge that a particular guest is underage to be liable for any damage or injury that guest causes.
The opinion referenced a 1994 Court of Appeals precedent, Dickman v. Jackalope, Inc., which the Supreme Court determined the lower appeals court correctly relied on. The Court of Appeals in Dickman determined the Dram Shop Act’s plain language indicates that “willfully and knowingly” for a liquor licensee’s liability applies to both the licensee’s mental state regarding the sale or service of alcohol and also to their knowledge of a purchaser’s age. The word “willfully” was removed when the legislature amended the statute in 2005.
“Of course, the provision of a place to provide for consumption of alcohol must be done knowingly, as it is difficult to conceive how a social host could unknowingly provide a place for alcohol consumption and still be considered a social host,” wrote Colorado Supreme Court Justice Melissa Hart in the opinion. “To conclude that ‘knowingly’ only modifies the act of providing the space would thus make that word superfluous in the statutory scheme.”
During oral arguments, Hart’s line of questioning seemed to indicate her inclination toward a narrow interpretation of “knowingly” as written in the statute. She compared Section 12-47- 801(4)(a)(I) to other states’ adaptations of the Dram Shop Act that specifically include a reasonableness standard for knowledge of a person’s age in the given circumstances.
“Just the word ‘knowingly’ is generally construed to require actual knowledge without some evidence in the statute that it means something else,” she said.
But attorneys for Przekurat argued constructive knowledge of a guest’s age should be sufficient to establish liability for a social host. In this instance, they said the hosts throwing an open party without restricting access to the house or the alcohol should have given the hosts constructive knowledge that Sieck was underage. The attorneys and Angie Paccione, a former state legislator, said the 2005 amendments to Colorado’s Dram Shop Act were not intended to create such a narrow definition of liability for social hosts.
“Just the opposite is the intent,” Paccione said. “The person hosting should essentially assume that everyone is underage, and people should have to prove that they are of age in order to consume [alcohol].” Paccione submitted an affidavit in Przekurat v. Torres about the legislature’s intent for House Bill 05-1183. The bill was introduced in response to a rash of deaths from on Colorado campuses from binge drinking in the early 2000s, including Samantha Spady at Colorado State University and Gordie Bailey at the University of Colorado Boulder. Paccione said she would look into contacting former colleagues who are still in the legislature to possibly amend the law again.
Troy Ciccarelli, Przekurat’s trial counsel, said from his perspective as an advocate for his clients, the court’s “razor-thin” determination of liability hit him hard. He said he believes the ruling eviscerates the legislature’s intent in amending the Colorado Dram Shop Act.
“It was a tragic missed opportunity for the Supreme Court to really dive in and get into the game and get some traction and really address this problem from a judicial perspective,” he said.
Ciccarelli said neither the Court of Appeals nor the Supreme Court addressed a 1992 Court of Appeals precedent that created a liability loophole House Bill 05-1183 was intended to close. In Forrest v. Lorrigan, the court declined to impose liability on a social host for providing a place for underage guests to drink if the host did not have control over or take an active part in supplying alcohol to the underage guests.
“Eerily absent in either the Court of Appeals or Supreme Court opinion is any citation to Forrest v. Lorrigan,” Ciccarelli said.
Appellate co-counsel Timms Fowler said the Supreme Court also did not address a 2005 Court of Appeals precedent, Full Moon Saloon v. City of Loveland. The case determined constructive knowledge of a customer being underage is sufficient to revoke a liquor licensee’s license.
“Look for a discussion about Full Moon in the Supreme Court opinion,” he said. “[It’s] not there.”
As of press time, Fowler said it hasn’t yet been decided whether the plaintiffs will petition the court for rehearing.
Defendant Mitchell Davis’ attorney Colin Campbell said he does not believe the Supreme Court’s decision is intended to create open season for willful ignorance by social hosts of their guests’ age.
“I think there remains an obligation for a social host to be mindful of the age of the people who are drinking at their place,” he said. “If there’s any indication that would inform the social host, even indirectly, that underage people are drinking on their premises, that may well impose liability.”
He pointed out that the Supreme Court’s opinion did not address a definition of actual knowledge. The court declined to review whether this case’s fact pattern could establish actual knowledge. In instances when a trial court concludes that reasonable minds would reach the same inference, Campbell said an appellate court has authority to determine whether the trial court made the conclusion correctly. In this case, it has been undisputed that the party’s hosts did not have actual knowledge Sieck was under 21.
“The concept of actual knowledge versus circumstantial evidence of actual knowledge gets to be a pretty blurred line, at least in certain factual situations,” he said. “There’s the implication there that it may have been a close call from their perspective as to whether the circumstances of the party may actually reach the point of establishing actual knowledge.”
Campbell believes that if circumstantial knowledge of a guest’s age were the standard to meet, the parties would agree the case’s fact pattern meets that bar.
The opinion closed with the court deferring responsibility to the legislature for expanding social host liability. “As voiced by Przekurat throughout this case, there may be strong policy arguments in favor of imposing liability on social hosts who should have reason to know that they are providing a place for underage drinking. Such policy considerations, however, are for the General Assembly to weigh.”
— Julia Cardi