Colorado Bar Fights: Who is Liable? A Landlord, a Tavern Owner or Both?

Colorado Bar Fights:  Who is Liable? A Landlord, a Tavern Owner or Both?

“Mean Streets,” “Roadhouse,” “Boondock Saints,” and “A Bronx Tale” all have epic bar fight scenes.  The common denominator is a tavern frequented by, let us just say, a rough crowd and a tavern owner who is presumably looking the other way.  Of course, it is just Hollywood.  Or is it?  What about our neighborhood watering holes?  Those establishments are not immune from the occasional or sometimes frequent disagreements among patrons devolving into fisticuffs or worse.

While the instigating individual is typically arrested and charged criminally, his/her victim may lawyer up to assert an assault and battery claim and exact some monetary punishment, but in search of deeper pockets plaintiff’s counsel may also look to assert claims against the landowner and liquor licensee.

The Premises Liability Act

In 1986, the Colorado legislature enacted the Premises Liability Act,[i] which reinstated the trespasser, license, and invitee classification scheme which existed prior to 1971.[ii]   The stated purpose of the Premises Liability Act was to “create a legal climate [to] promote private property rights and commercial enterprise and…foster the availability and affordability of insurance.” Relevant to the subject matter of this article, as it applies to invitees today, Colorado’s Premises Liability Act states in pertinent part as follows:

In any civil action brought against a landowner by a person who alleges injury occurring while on the real property of another and by reason of the condition of such property, or activities conducted or circumstances existing on such property, the landowner shall be liable only as provided in subsection (3) of this section…

(3)(c)(I) …an invitee may recover for damages caused by the landowner’s unreasonable failure to exercise reasonable care to protect against dangers of which he actually knew or should have known.[iii]

The seminal case in Colorado concerning a landowner’s liability for the criminal acts of a third-party on its premises is the Colorado Supreme Court case Taco Bell, Inc. v. Lannon.[iv] While the Lannon decision post-dates enactment of the Premises Liability Act, the events giving rise to the initial case arose in 1979.  Despite this, the Supreme Court’s decision is cited to this day for the proposition “that while owners or occupiers of land held open for business purposes are not insurers of their customers’ safety, a duty arises on the part of the owner or occupier to take reasonable measures to protect customers from injuries caused by the criminal acts of unknown third persons when such acts are generally foreseeable.”[v]

The Colorado Supreme Court expressly agreed with the Restatement (Second) of Torts on the issue, which recognizes an owner or occupier of property has a duty to protect customers from injury caused by criminal conduct in such circumstances. Section 344 provides:

A possessor of land who holds it open to the public for entry for business purposes is subject to liability to members of the public while they are upon the land for such a purpose for physical harm caused by the accidental, negligent, or intentionally harmful acts of third persons and by the failure of the possessor to exercise reasonable care to:

(a) discover that such acts are being done or are likely to be done, or

(b) give a warning adequate to enable the visitors to avoid the harm, or otherwise to protect them against it.[vi]

Also adopted by the Supreme Court was Comment f to section 344 of the Restatement (Second) of Torts, which makes clear the existence of this duty depends, to a great extent, on the foreseeability of criminal conduct by third persons.[vii]  Since the possessor is not an insurer of the visitor’s safety, he is ordinarily under no duty to exercise any care until he knows or has reason to know the acts of the third person are occurring, or are about to occur.[viii] He may, however, know or have reason to know, from past experience, there is a likelihood of conduct on the part of third persons in general which is likely to endanger the safety of the visitor, even though he has no reason to expect it on the part of any particular individual.[ix] If the place or character of his business, or his past experience, is such he should reasonably anticipate careless or criminal conduct on the part of third persons, either generally or at some particular time, he may be under a duty to take precautions against it, and to provide a reasonably sufficient number of servants to afford a reasonable protection.[x]

Typically, plaintiffs will allege in the complaint the landowner and tavern owner failed to take reasonable precautions and failed to have a doorman, security guard, or any other protection present to monitor, refuse entry to, or remove overly intoxicated persons in order to protect their invitees and patrons from assaults and other acts of violence occurring on its property, which actions were a proximate cause to whatever injuries plaintiff may have suffered.  Additionally, in order to bootstrap the Premise Liability Act and satisfy Lannon, plaintiffs will include the tavern has a long history of fights, violent assaults, attacks, police involvement and arrests, which was known to the defendants.

The Dram Shop Act 

In 1986, the Colorado legislature passed the modern version of the Dram Shop Act which addressed, for the first time, social host liability. The Colorado Dram Shop Act states in relevant part as follows:

No licensee is civilly liable to any injured individual or his or her estate for any injury to the 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 the person, except when

(I) It is proven that the licensee willfully and knowingly sold or served any alcohol beverage to the person who was under the age of twenty-one years or who was visibly intoxicated; and,

            (II) The civil action is commenced within one year after the sale or service.[xi]

Do the Premises Liability Act and Dram Shop Act Co-Exist or Does the Dram Shop Act Preempt the Remises Liability Act?

A claim for relief for violation of the Premises Liability Act may only be asserted against the landowner.[xii]  A claim for relief for violation of the Dram Shop Act may only be asserted against the liquor licensee.[xiii]  At first blush, it would appear the two claims for relief could co-exist, because while the Dram Shop Act is a plaintiff’s sole remedy against an alcohol vendor for injuries caused by the sale or service of alcohol, the Premises Liability Act is directed against landowners and in this case failing to keep patrons safe from foreseeable criminal acts by third-parties. In other words, two different statutes targeted at two separate types of defendants.

The United States District Court for the District of Colorado in Wiltberger v. Lee-Ward Partners, LLC,[xiv] on a motion for summary judgment by the tavern, was asked to decide whether the Dram Shop Act preempted plaintiff’s Premises Liability Act claim for relief.  It was plaintiff’s theory of the case the two individuals served alcohol by the bar were intoxicated and they assaulted and injured him. He specifically alleged in his complaint the two men were “visibly intoxicated” and he incorporated the allegation into his Premises Liability Act claim.

The District Court wrestled with the lack of clarity in the Dram Shop Act whether it preempts only common law claims, or whether it preempts all civil claims, including those arising under statute, such as the Premises Liability Act.[xv] On the one hand, the Dram Shop Act provides “no licensee [will be] civilly liable” for covered claims against the vendor of alcoholic beverages except as provided in the Dram Shop Act.[xvi] This statutory language makes no distinction between civil liability arising from the common law and civil liability arising from a statute.[xvii] Nor is this the only instance in which the Dram Shop Act uses such broad language to define its preemptive scope.[xviii] Other subsections in the statute similarly preclude all “civil liability” for claims involving social hosts and culinary school instructors.[xix] 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.[xx] 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…[xxi]

Thus, the District Court framed the question as 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 the law to encompass only civil claims arising from the common law.  Ultimately, the District Court determined the Colorado legislature defined the Dram Shop Act’s preemption to broadly extend to all civil claims without distinguishing between common law and statutory claims.[xxii]

The District Court’s holding in Wiltberger is consistent with the Colorado Court of Appeals case, Strauch v. Build It and They Will Drink It.[xxiii] In Strauch, the Court of Appeals expressly held a Premises Liability Act claim involving a stabbing outside of a Colorado Springs nightclub committed by an intoxicated patron of the nightclub was preempted by the Dram Shop Act.[xxiv] Although the Colorado Supreme Court granted certiorari in Build It and They Will Drink, Inc. v. Strauch,[xxv] it did not take up part of the holding. Meaning, the Court of Appeals decision remains persuasive for trial courts on this issue.

In addition to discussing Strauch, the District Court also found support for its own decision on the ground the Strauch decision was handed down in 2009 and survived the Colorado legislature’s 2014 amendments to the Dram Shop Act, choosing not to alter the law to say it was only intended to preempt or preclude common law claims against covered vendors, and not all civil claims.[xxvi]

The District Court in Wiltberger summed up factually by stating:

Indeed, it was Mr. Wiltberger’s position throughout the litigation “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; he is claiming he suffered an injury from an intoxicated person; and he is claiming those individuals were provided alcohol by the bar. Based on the language of the Dram Shop Act and the foregoing Colorado authorities interpreting and applying it, the Act thus applies and preempts all other civil claims against the vendor of the alcohol.[xxvii]


Since the Dram Shop Act limits the amount of total damages a plaintiff can recover from a liquor licensee to $280,810, plus prejudgment interest at a rate of 9% per year, and the Premises Liability Act does not, it is advisable to move for dismissal or summary judgment when representing a liquor licensee faced with a complaint alleging these two claims for relief.

Although a Premises Liability Act claim against a liquor licensee is preempted by the Dram Shop Act, this scenario may be different when there are two separate entities, the landowner and the liquor licensee.  In such a situation, if any one or all of the arguments can be factually supported, the landlord’s defense counsel should argue lack of knowledge of prior incidents within the bar, lack of control of the premises, and not being responsible for creating any condition on the premises or conducting any activity on the premises in any way related to the allegations contained in plaintiff’s complaint.

In sum, liability for a bar fight may or may not be shared by the landlord and a liquor licensee depending upon who the landlord and liquor licensee are (i.e. one in the same or separate entities), how plaintiff’s counsel frames the allegations in the complaint, and against whom the claims for relief are alleged.


[i] C.R.S. § 13-21-115(2).

[ii] The Colorado Supreme Court struck down as unconstitutional the Premises Liability Act in Gallegos v. Phipps, 779 P.2d 856, 862-63 (Colo.1989). In 1990, the Colorado legislature amended the Premises Liability Act to address the Supreme Court’s equal protection concerns and the status classifications, i.e. trespasser, licensee, and invitee, once again became applicable.

[iii] C.R.S. § 13-21-115(3)(c)(I).

[iv] 744 P.2d 43 (Colo. 1987).

[v] Taco Bell, Inc. v. Lannon, 744 P.2d 43, 46–47 (Colo. 1987)(citing Cohen v. Southland Corp., 157 Cal.App.3d 130, 203 Cal.Rptr. 572, 575 (1984); Antrum v. Church’s Fried Chicken, Inc., 40 Conn.Supp. 343, 499 A.2d 807, 808–10 (1985); Jardel Co., Inc. v. Hughes, 523 A.2d 518, 525 (Del.1987); Stevens v. Jefferson, 436 So.2d 33, 34–35 (Fla.1983); Taylor v. Hocker, 101 Ill.App.3d 639, 57 Ill.Dec. 112, 428 N.E.2d 662, 664 (1981); Martinko v. H–N–W Associates, 393 N.W.2d 320, 321–22 (Iowa 1986); Nappier v. Kincade, 666 S.W.2d 858, 860–62 (Mo.Ct.App.1984); Early v. N.L.V. Casino Corp., 100 Nev. 200, 678 P.2d 683, 684–85 (1984); Butler v. Acme Markets, Inc., 89 N.J. 270, 445 A.2d 1141, 1143 (1982); Nallan v. Helmsley-Spear, Inc., 50 N.Y.2d 507, 429 N.Y.S.2d 606, 407 N.E.2d 451, 457–58 (1980); Foster v. Winston-Salem Joint Venture, 303 N.C. 636, 281 S.E.2d 36, 38–39 (1981); Daily v. K–Mart Corp., 9 Ohio Misc.2d 1, 458 N.E.2d 471, 475 (1981); Uihlein v. Albertson’s, Inc., 282 Or. 631, 580 P.2d 1014, 1018 (1978). Murphy v. Penn Fruit Co., 274 Pa.Super. 427, 418 A.2d 480, 482–83 (1980)).

[vi] Lannon, 744 P.2d at 47 (citing (1965)).

[vii] Id. (citing Restatement (Second) of Torts § 344, cmt. f).

[viii] Id.

[ix] Id. at 47-48.

[x] Id. at 48.

[xi] C.R.S. § 44-3-801(3)(a)(I)–(II)

[xii] See, e.g., Teneyck v. Roller Hockey Colo., Ltd., 10 P.3d 707 (Colo.App.2000) (landowner duty to an injured sports spectator may be determined only under the Premises Liability Act); see also Pierson v. Black Canyon Aggregates, Inc., 48 P.3d 1215, 1219 (Colo.2002) (“The overriding purpose of the premises liability statute is to clarify and to narrow private landowners’ liability to persons entering their land….”).

[xiii] See, e.g., Charlton v. Kimata, 815 P.2d 946, 951 (Colo.1991) (discussing the enactment of C.R.S. § 12–47–128.5, the predecessor to C.R.S. § 12–47–801).

[xiv] 16-CV-00307-MSK-NYW, 2017 WL 4118446 (D. Colo. Sept. 18, 2017).

[xv][xv]Id. at *4

[xvi] Id.

[xvii] Id.

[xviii] Id.

[xix] Id.

[xx] Id.

[xxi] Id. (citing C.R.S. § 44-3-801(1)).

[xxii] Id at *6.

[xxiii] 226 P.3d 1235 (Colo. App. 2009).

[xxiv] Id. at 1239.

[xxv] 253 P.3d 302, 308 (Colo. 2011).

[xxvi] Wiltberger, 2017 WL 4118446 at *6 (citing 2014 Colo. Legis. Serv. Ch. 387 (S.B. 14–129) (West)).

[xxvii] Id. at *2 (emphasis added).

Keep Reading

More by this author