Chapter 28 - § 28.6 • CLAIMS BROUGHT BY ENTRUSTEE

• Jurisdiction: Colorado

§ 28.6 • CLAIMS BROUGHT BY ENTRUSTEE

Under the Colorado Dram Shop Act, C.R.S. §§ 44-3-801, et seq., a bar or restaurant that serves alcohol to a minor or visibly intoxicated person, thereby causing further alcohol-related impairment, can be held liable to a third person who is injured by the minor or intoxicated person.⁵⁸ However, the Act explicitly states that if the minor or intoxicated person who was served alcohol by the bar or restaurant is injured as a result of that service, neither that person nor the estate of that person can bring a civil lawsuit against those who served him or her alcohol.⁵⁹

In contrast with statutory Dram Shop Act claims, which prohibit an intoxicated person from recovering from a supplier of alcohol for the intoxicated person's own injuries, common law claims of negligent entrustment by entrustees against entrustors who are not suppliers of alcohol are not subject to such a limitation.⁶⁰ Rather, in Casebolt — a case in which a man died after driving his employer's vehicle while intoxicated, and his estate sought compensation from the employer — the Colorado Supreme Court stated that "[u]nder [Restatement] section 390 it is clear that an entrustee can recover for physical harm to himself resulting from the negligent entrustment."⁶¹ In support of this conclusion, the supreme court cited the plain language of section 390, which recognizes that an incompetent entrustee can cause harm "to himself and others"⁶² and states that an entrustor can be held liable for such harm. The court also cited Illustration 7 to section 390, which describes a fact pattern in which intoxicated entrustees of a boat die in a boating accident and the entrustor — who did not supply any alcohol but knew the entrustees were intoxicated — may be held liable to the entrustees' estates and the estate of a victim of the entrustees' negligent operation of the boat.⁶³ In addition, the Casebolt court cited public policy considerations that weigh in favor of allowing an entrustee to bring a negligent entrustment claim against an entrustor.⁶⁴

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Notes:

^[58] C.R.S. § 44-3-801. For a full discussion of dram shop-related civil claims, see Chapter 17, "Dram-Shop Liability."

^[59] C.R.S. § 44-3-801(3)(b). This statute supercedes Colorado common law which, prior to the enactment of the statute, permitted an injured patron or his or her estate to bring a claim against a bar or restaurant for overselling alcohol to that patron. See Lyons v. Nasby, 770 P.2d 1250 (Colo...