Lead Opinion
delivered the Opinion of the Court.
We granted certiorari to review the court of appeals’ decision in Daly v. Observatory Corporation,
I.
In this case, the plaintiff, Raymond F. Daly, filed a tort action against the Observatory Corporation, which owned and operated a tavern, and a tavern customer, Russell Sheard, for damages resulting from an incident in which Sheard, in the early morning hours of January 28, 1984, while leaving the parking lot of the tavern, drove his automobile into the rear of a car occupied by the plaintiff, Daly, and. operated by Daly’s companion, Michael Fitzpatrick, and pushed the car across the parking lot and over an embankment, thereby causing injuries to Daly. Sheard settled with Daly prior to trial.
The case was tried to a jury in July 1985, and the evidence established the following sequence of events. At approximately 7:30 p.m. on Friday, January 27, 1984, Daly arrived at the Observatory, which holds a tavern license to sell malt, vinous, and spirituous liquors for consumption by customers on its premises in Evergreen, Colorado. The tavern is small, with a bar and several bar stools, and twelve tables around the bar. There were three persons, a bartender and two waitresses, who were working at the tavern on the night in question. The Observatory provided entertainment by a band on weekend evenings.
After his arrival, Daly met several of his coworkers at the tavern, including Michael Fitzpatrick, and spent the evening drinking and socializing. Sheard entered the tavern at approximately 8:30 p.m. He had nothing to drink prior to his arrival and was not familiar to those working at the tavern. Sheard ordered a beer at the bar from the bartender, Peri Eringen, and .paid for the drink in cash. Sheard, who described himself at trial as having an outgoing personality toward women in bars, struck up a “flirtatious” conversation with bartender Eringen. The conversation, however, re-, suited in a minor argument when Sheard asked the bartender for some paper on which to write and the bartender told him she was too busy to get him the paper. Sheard became upset and grabbed a billing tab from a waitress. Because the waitresses were required to account for each of their billing tabs, Eringen, who was some
Sheard sat at the bar until approximately 9:00 p.m., when he met Stacy Spielberger, and then • both Sheard and Spielberger moved to a table. Spielberger spent about two hours with Sheard at the table and found him to be “overly friendly” and “flirtatious.” During the two hours at the table, Sheard ordered a drink for Spielber-ger and himself, both of which were placed on his tab by a waitress. Spielberger’s friend, Richard Roth, joined Spielberger and Sheard at the table around 10:30 p.m. Roth spoke with Sheard for approximately one-half hour before leaving the Observatory and found him to be an “extroverted, overfriendly” person. Neither Roth nor Spielberger was of the opinion that Sheard showed any signs of intoxication during their conversations with him. Sheard testified at trial that during the entire evening he had consumed about three or four beers and one or two coffees with brandy.
At approximately 1:00 a.m., Sheard asked his waitress, Cheryl Ann Pope, who was there working as both a waitress and a bartender, for his tab. Pope testified that she had been “keeping an eye” on Sheard “because he .was being so friendly” and that, in the course of the evening, he had asked each of the three women working at the tavern — Pope, Eringen, and the other waitress — for a date. Pope calculated the tab at $17.00, of which approximately $8.50 was for drinks and the balance for food Sheard had ordered during the evening. Sheard gave his credit card to Pope in payment of the bill. Pope ran the card through a credit card machine and placed a pen, the credit card, and the charge slip at Sheard’s table for his signature. When Pope returned for the signed charge slip, however, all three items were missing. Sheard said that he did not know what happened to the items, and Pope again took his credit card and prepared a new charge slip for Sheard’s signature. When Pope returned the second time, she discovered the charge slip burning in a candleholder on the table. Pope decided to make a third attempt at completing Sheard’s charge transaction, but discovered that the credit card machine was missing. Pope then informed Sheard that she could not find the credit card machine and asked him if he would pay his bill in cash. Sheard agreed to pay the bill in cash, but Pope did not return his credit card to him.
Sheard was concerned about his credit card and went downstairs to a telephone in order to call the police to report that the credit card machine was missing and that his credit card had not been returned to him. Sheard was new to the area and, being unaware that the Jefferson County Sheriff’s Office had jurisdiction over the area, attempted to call the “Evergreen Police.” While on the telephone, Pope approached Sheard to inform him that it was closing time and that he had to leave the tavern. Pope overheard Sheard’s telephone conversation and testified that, although he may have sounded “drunk” and “disoriented” because he was confused about the name of the local police department and he was unable to describe his present location, it was her opinion that he was not intoxicated. Sheard remained on the telephone and refused to leave despite Pope’s requests that he use the telephone at a restaurant across the street.
Pope went upstairs to assist the other waitress in closing the tavern. The only remaining customers in the tavern, in addition to Sheard, were Daly and Daly’s friend, Michael Fitzpatrick. Pope asked Daly and Fitzpatrick to remain in the tavern until Sheard left because, as Pope testified at trial, it was her experience that a customer who did not want to leave could give two women attempting to close the tavern a very difficult time. Daly and Fitzpatrick agreed to remain at the tavern until it was closed.
Fitzpatrick, on his own initiative, went down the stairs, grabbed Sheard’s shoul
Sheard left the tavern and went to his Jeep in the tavern parking lot. Shortly thereafter, Daly and Fitzpatrick left the tavern and went to Fitzpatrick’s Volkswagen in the tavern parking lot. Sheard observed them leaving the tavern and, becoming afraid that they would cause him bodily harm, decided to “immobilize” Fitzpatrick’s Volkswagen by pushing it over an embankment into the snow. Sheard drove his Jeep into Fitzpatrick’s Volkswagen and pushed Fitzpatrick’s vehicle over a high embankment, causing serious injury to Daly. Sheard then drove to a telephone booth and called the police.
At the conclusion of the evidence, the Observatory moved for a directed verdict on Daly’s claim that the Observatory was negligent in failing to protect Daly from the physical harm caused to him by Sheard. The district court granted the motion, concluding that the evidence was insufficient as a matter of law to establish that the Observatory had some notice or knowledge that the harm caused by Sheard was reasonably foreseeable. The trial court submitted to the jury Daly’s other theory of liability, which was based on the Observatory’s breach of a statutory and common-law duty not to serve alcoholic beverages to a visibly intoxicated person. The jury returned verdicts in favor of the Observatory on this claim.
Daly thereafter appealed to the court of appeals, claiming that the trial court erred in granting the Observatory’s motion for a directed verdict. In reversing the directed verdict and remanding the case for a new trial, the court of appeals held that the evidence of Pope’s request to Fitzpatrick and Daly to stay until Sheard had left the tavern, along with the evidence of Pope’s observation of the physical confrontation between Fitzpatrick and Sheard at the telephone, was sufficient to permit “a reasonable jury to determine that a reasonable bar owner would foresee a potential danger and act to prevent it” and that there thus was a question of fact as to whether the Observatory breached its duty to Daly. Daly,
II.
To recover on a claim of negligence, the plaintiff must establish the existence of a legal duty on the part of the defendant, breach of duty by the defendant, causation, and damages. E.g., Perreira v. State of Colorado,
A court’s determination that the defendant did or did not owe a legal duty to the plaintiff is “an expression of the sum total of those considerations of policy which lead the law to say that the plaintiff is [or is not] entitled to protection.” University of Denver,
In the instant case, Daly’s claim was predicated on dual theories of liability. The first theory was that the Observatory had a statutory and common-law duty not to serve alcoholic beverages to Sheard when he was visibly intoxicated and that the tavern breached its duty by serving Sheard while he was so intoxicated. We have held that a tavern owner has both a statutory and common-law duty to exercise due care not to serve alcoholic beverages to a visibly intoxicated patron and that the tavern owner who breaches that duty will be liable in tort to third persons who are harmed as a result of the owner’s breach of duty. Largo Corporation v. Crespin,
It is Daly’s second theory of liability which is the focus of our attention. Daly claimed that the Observatory knew or had reason to know that Sheard, by virtue of his conduct in the tavern on the evening in question and particularly his confrontation with Fitzpatrick, posed an unreasonable risk of harm to others, and that the Observatory breached its duty to protect its patrons from injury. In reversing the trial court’s directed verdict for the Observatory on this latter theory of liability, the court of appeals ruled as a matter of law that the confrontation between Sheard and Fitzpatrick in the tavern created a legal duty on the part of the Observatory to protect Daly from any further confrontation in the parking lot that might result in injury and that a jury question was presented as to whether the Observatory breached its duty.
We have considered in prior decisions the ■ existence and scope of a tavern proprietor’s duty of care to a tavern patron. In Cubbage v. Leep,
There is nothing in this record to indicate that Mrs. Cubbage acted in any other manner than a person of ordinary prudence would act under similar circumstances. For aught that appears in the record the Millhollins were sober and law abiding when they entered Cubs In, and when Mrs. Millhollin attacked Mrs. Cub-bage the latter called for help and asked that the sheriff be called, but her plea was not heeded. There is nothing in the record to indicate that Mrs. Cubbage knew or had reason to believe or anticipate that her argument with Mrs. Mill-hollin would erupt in violence.
The Millhollins had been in the Cubbage Tavern many times following this incident and no disturbance or boisterous conduct had been indulged by them during this six months period. It is conceded that the operator of a restaurant which dispenses intoxicating liquors is not an insurer of the safety of its guests, but is liable only for negligence.
137 Colo, at 290,
In Vigil v. Pine,
Our decisions in Cubbage and Vigil clearly indicate that the foreseeability of harm plays a prominent role in resolving the tavern proprietor’s legal duty of care to patrons and other persons legitimately on the tavern premises. Under Cubbage and Vigil, a plaintiff, in establishing foresee
While foreseeability of harm is a prominent element in determining a tavern proprietor’s legal duty to patrons and other persons legitimately on the tavern premises, it is not the exclusive element. Our recent decisions make clear that a court must also consider, in addition to the foreseeability of harm, the social utility of the proprietor’s conduct, the magnitude of the burden of guarding against the injury, the consequences of placing that burden upon the defendant, and any other relevant factors implicated by the facts of the case. E.g., Perreira,
A possessor of land who holds it open to the public for entry for his 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 or animals, 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.
We then quoted with approval comment f to section 344, which states that “[s]ince 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 that the acts of the third person are occurring, or are about to occur.” Because the plaintiff in Taco Bell had been injured during a robbery at the restaurant located in a high crime area, and because the restaurant had been subjected to ten armed robberies during the preceding three years, we determined that the risk of injury to the plaintiff was foreseeable.
III.
It was incumbent upon Daly to establish a legal duty on the part of the Observatory to protect him from the bodily harm caused to him by the act of Sheard, a tavern patron. The foreseeability element of legal duty required Daly to establish that the employees of the Observatory had some notice, either actual or constructive, that Sheard posed an unreasonable risk of harm to Daly or other persons legitimately on the tavern premises. Our review of the record satisfies us that the foreseeability element of- legal duty was not satisfied in this case.
The employees of the Observatory, had no familiarity with Sheard prior to the evening in question, and Sheard’s conduct, while somewhat bothersome to the bartender and waitress, was not such as to put the employees on notice that he was prone to engage in physically assaultive conduct toward anyone or was inclined to take retaliatory action against Fitzpatrick or Daly upon their leaving the tavern. Sheard was neither physically nor verbally aggressive toward anyone at the tavern. He apologized to the bartender when the bartender displayed her displeasure at his attempt to take a waitress’ billing tab and write on it, and when a controversy later arose between Sheard and the waitress over his credit card, he manifested no physically aggressive tendencies whatsoever. Although the waitress, Cheryl Ann Pope, requested Fitzpatrick and Daly to remain at the tavern until Sheard had left, she did so only to avert any possible difficulties with Sheard in the event no other men were in the tavern at closing. There is no evidence that Pope asked Fitzpatrick to physically confront Sheard, nor did she have any expectation that Fitzpatrick would do so. To be sure, Pope did witness a brief and relatively uneventful physical confrontation between Fitzpatrick and Sheard, but Sheard was a passive party to the confrontation and neither said nor did anything to put Pope on notice that he would retaliate against Fitzpatrick or Daly upon leaving the tavern.
While the foreseeability element of legal duty does not require a tavern proprietor to foresee the specific type of harm which a tavern patron will perpetrate against another or the manner in which that harm will likely be caused, it does require that the proprietor have actual or constructive notice that the patron poses an unreasonable risk of physical harm to other persons legitimately on the premises. See generally Vigil,
There also are other factors, in addition to foreseeability, to consider in the duty analysis. While there is not §uch a significant degree of social utility in operating a tavern as to tilt the balance in favor of negating any legal duty to protect persons legitimately on the tavern premises from the harmful conduct of a tavern patron, we nonetheless must be mindful of the magnitude of the burden that would be implicated by imposing a legal duty to protect Daly from the physical harm perpetrated by Sheard under the circumstances of this case. To impose such a duty would be tantamount to requiring a tavern employee to divine future violence on the part of a tavern patron notwithstanding the absence of any objective evidence indicating that the patron constituted an unreasonable risk to the safety of others. The practical consequences of such a rule would be to render the tavern proprietor a virtual insurer of the safety of all persons legitimately on its premises. We decline to adopt such a
The judgment of the court of appeals is reversed and the case is remanded to that court with directions to return the case to the district court for reinstatement of the directed verdict entered in favor of the Observatory.
Notes
. Pursuant to the settlement agreement, Sheard remained a party defendant during the trial.
. Daly presented testimony from two law enforcement officers who responded to Sheard’s telephone call. Both officers testified that, although they did not administer a breath or a blood alcohol test to Sheard, they were of the opinion that when they contacted him at approximately 2:25 a.m. he was intoxicated. In addition, Daly also presented opinion testimony from Dr. Daniel Tietelbaum, a toxicologist, to the effect that, based on his review of the officers' report of their observations of Sheard’s physical characteristics, Sheard was very intoxicated when he left the tavern. While this opinion evidence of Sheard’s intoxication was relevant to Daly's claim that the Observatory was negligent in serving Sheard intoxicating beverages when Sheard was in a visibly intoxicated condition, that claim was resolved adversely to Daly by the jury. The opinion evidence of the officers and the toxicologist did not bear on Daly’s other theory of negligence — namely, that Sheard’s conduct in the tavern, particularly his confrontation with Fitzpatrick, placed the tavern’s employees on actual or constructive notice that he posed an unreasonable risk of bodily harm to others and that the tavern employees were under a legal duty to take precautionary measures to prevent any such harm from occurring.
. We also considered a tavern proprietor’s duty to a patron in Schneider v. Pinnt,
. Cases from other jurisdictions also support the view that prior notice of a patron’s unreasonable risk of harm to others is essential to establish the foreseeability element of legal duty. See, e.g., McFarlin v. Hall,
Concurrence Opinion
specially concurring:
Although I agree with the result reached by the majority, I write separately to set out what I perceive to be the proper analysis to resolve the issue of the duty of a tavern owner to its patrons.
As the trial court held, tavern owners have a duty to exercise reasonable care to protect patrons from foreseeable injury. Cubbage v. Leep,
The primary factor in determining the scope of a duty is whether a particular harm is reasonably foreseeable.. Taco Bell, Inc. v. Lannon,
Unlike Taco Bell, this case involves a specific threat. The evidence did not establish a general duty to protect patrons arising from past experience with criminal activity. Any duty to protect against harm. arose in the present case, if it did at all, from the activities of the defendant Sheard on the premises the night plaintiff’s injuries occurred. Nothing in the record gives rise to the inference that a reasonable person would have foreseen that Sheard would become aggressive and harm the plaintiff, or that anything the defendant’s employees could have done would have prevented that harm. See Yarborough v. Erway,
The confrontation between Fitzpatrick and Sheard did not take place at the request of any of defendant’s employees, but was entirely Fitzpatrick’s idea. See, e.g., Lindsay v. Hartog,
Once it is concluded that there was no duty to protect against Sheard’s unforeseeable behavior, the trial court’s directed verdict in favor of the defendant should be upheld. A discussion of policy considerations beyond foreseeability, which might be relevant to determining the scope of a duty in response to general threats, is unnecessary, where the threat involves a specific patron whose conduct becomes unexpectedly aggressive.
Accordingly, I specially concur in the result reached by the majority.