Colorado has enacted a number of tort reform statutes. Typically, these statutes limit the amount of tort damages available to a plaintiff. For example, CRS § 13-21-102.5(3)(a) limits non-economic damages in a tort action to $468,010 (but this cap is increased to a maximum of $936,030 if the plaintiff can show by “clear and convincing” evidence that the higher cap is warranted). Additional examples include:
- Limitation of recovery to $436,070 in net pecuniary and non-economic damages cap for a wrongful death claim (CRS § 13-21-203(1).);
- Limitation to recovery of economic damages only for injury or death caused by a dog bite (CRS § 13-21-124(2).);
- Limitation of personal injury damages against a ski area operator to $1,000,000, and limitation of derivative claims to $250,000. (CRS § 33-44-113.)
- Limit of $1,000,000 in total damages (including economic, non-economic, and punitive) recoverable against all health care professionals as a result of negligent health care (CRS § 13-64-301(1)(b).); and
- Limit of $280,810 in total damages recoverable against a licensed seller of alcohol based on a dram shop claim (CRS § 12-47-801(3)(c).).
But, what happens when two of these damage cap statutes conflict? Specifically, what happens when an heir brings a wrongful death claim against a bar based on a liquor liability or “dram shop” theory of liability? Is the plaintiff limited to the greater damages cap of $436,070 in non-economic damages, or the lesser $280,810 cap of total damages under a dram shop claim? This question is explored below.
Dram Shop Liability, Generally
A “dram shop” cause of action includes any theory of liability against a licensed purveyor of liquor for injury or property damage suffered because of the intoxication of a third person due to the sale or service of alcohol to such person. (CRS § 12-47-801(3)(a).) For example, if a patron consumes alcohol at a bar and then kills a pedestrian while driving home after, the decedent’s heir’s lawsuit against the bar would be considered a “dram shop” cause of action.
A dram shop cause of action must be filed within one year of the date of the sale of alcohol. (CRS § 12-47-801(3)(a)(II).) The bar will only be held liable if the plaintiff can show either: 1) the bar willfully and knowingly served alcohol to a person under the age of 21, or 2) the bar willfully and knowingly served alcohol to a person who was visibly intoxicated. (CRS § 12-47-801(3)(a)(I).)
Finally, as mentioned in the introduction above, in any dram shop action, the total liability is limited to $150,000 adjusted for inflation. (CRS § 12-47-801(3)(c).) The current adjusted cap is $280,810. (Col. Sec. of State “Adjusted Limitations for Damages.”) The limit applies between one liquor licensee and one individual. (Brown v. Hollywood Bar (1997) 942 P.2d 1363.)
Wrongful Death Claims, Generally
Unlike the shortened one-year statute of limitations for a dram shop claim, plaintiffs have two year to file a wrongful death cause of action. (Rowell v. Clifford (1998) 976 P.2d 263.) A decedent’s spouse, heir, or parent (if the decedent is unmarried and without descendants) may pursue a wrongful death claim. (CRS § 13-21-201(1).)
Regardless of who brings suit, the recovery is divided among such heirs via Colorado’s descent and distribution statutes. (CRS § 13-21-201(2).) Because wrongful death causes of action are considered a single injury to the decedent, recovery is shared among the decedent’s survivors. This means there is a single award for all heirs as opposed to an individual recovery by each heir. (Steedle v. Seref (2007) 167 P.3d 135.)
Total damages for wrongful death non-economic losses are limited to $250,000, adjusted for inflation. (CRS § 13-21-203(1).) The current adjusted damages cap is $436,070. (Col. Sec. of State “Adjusted Limitations for Damages.”) An heir may recover his or her net pecuniary losses in addition to the non-economic damage cap. (Lahan v. Chi Psi Praterntiy (2008) 175 P.3d 97.)
Wrongful Death vs. Dram Shop Damage Cap
Taken together, a dram shop defendant is left to wonder which limit applies under the scenario where an intoxicated patron kills someone while driving. Is it the lower dram shop limit or the much higher wrongful death limit?
The Colorado Supreme Court has addressed this question as it applies to similar conflicts. For example, in Stamp v. Vail Crop. (2007) 172 P.3d 437, the court examined the question of whether the statutory wrongful death damages cap or statutory ski operator damages cap would apply in a wrongful death action based on a skier’s death caused by collision with a snowmobile driven by the ski operator’s employee. In this case of initial impression, the Supreme Court acknowledged the Colorado’s Legislative intent in enacting the Ski Safety Act (SSA) was to clarify the law regarding applicable duties and to reduce the unpredictability and risk of litigation for ski area operators. (Id. at 443 citing to Ch. 256, sec. 1, 1990 Colo. Sess. Laws 1540, 1540). Thus, the court reasoned the SSA was given primary control over litigation arising from a skiing accident. (Id. at 444.) As a result, the court concluded the SSA damages cap controls when in conflict with the Wrongful Death Act’s (WDA’s) damages caps. (Id. at 447).
Similarly, one might argue the Colorado Legislature enacted the Dram Shop Act (DSA) to regulate all causes of action against a vendor of alcohol for injuries of damages caused by service of alcohol. (See CRS § 12-47-801(1) and (3)(A)(I).)
At least one commentator, however, has articulated a potential challenge to this conclusion. The commentator explains that the DSA specifically mentions wrongful death actions for social hosts, but there is no such reference in the section that limits a liquor licensee’s liability. (Compare CRS § 12-47-801(4)(a) limiting social host liability for civil liability “including any action for wrongful death” to CRS § 12-47-108(3)(a) limiting civil liability for a licensee and excluding the “wrongful death” language.) Thus, one might argue the Legislature intended to exclude wrongful death damages from those regulated under the DSA. (See discussion at § 20:9.The 1986 Act—Wrongful death, 7 Colo. Prac., Personal Injury Torts And Insurance § 20:9 (3d ed.).)
While the commentator above admittedly iterated a creative argument, the overwhelmingly pervasive view is that the Colorado Supreme Court put this issue to rest in 2011 via its decision in Build It and They Will Drink v. Strauch (2011) 253 P.3d 302. Here, the Supreme Court explained the DSA entirely preempted any other law governing causes of action based on liquor liability. (Id. at 307.) Thus, it should be the DSA’s damages caps, as opposed to the WDA’s damages caps, that are applied in instances of liability based on service of liquor. In fact, the commentator described above even acknowledges this as the more common view. (See § 20:9.The 1986 Act—Wrongful death, 7 Colo. Prac., Personal Injury Torts And Insurance § 20:9 (3d ed.).) This interpretation is further bolstered by the fact published decisions routinely apply the DSA damages caps in liquor liability wrongful death matters. (See e.g. Simon v. Seafod LTD. (1991) 817 P.2d 527; and Gross v. B.G. Inc. (1999) 7 P.3d 1003).)
Damages against a licensed seller of liquor would be limited to a total $280,810 under the DSA. They would be limited to pecuniary loss plus $436,070 in non-economic damages under the WDA. This is a difference of $155,160 plus any pecuniary loss.
Among practitioners and judges, the commonly accepted view is liquor liability damages are controlled by the Dram Shop Act (DSA) as opposed to the Wrongful Death Act (WDA). If, however, a creative plaintiff files a dram shop action seeking wrongful death damages against a seller of alcohol, it would be well worth a motion asking the trial judge to rule on this issue of law.
 Note, Colorado H.B. 18-1025 has passed the Colorado House of Representatives and is pending before the Senate at the time this article was authored. H.B. 18-1025 would relocate the Title 12 liquor laws to Title 44 and amend some of the wording of title 12, including the provision of CRS § 12-47-801. The proposed language changes will re-codify the Dram Shop Act as CRS § 44-3-804. The substantive terms of the act remain unchanged.