What did you know?

A constantly vexing question for plaintiff lawyers is when a person’s liability for another’s drunkenness kicks in.

On June 2011 four young men threw a party in Boulder, Colorado. It must have been a good one, because it attracted many people beyond the invitees. One such person was 20-year-old Hank Sieck, who attended with Jared Przekurat. They were friends of a friend of a friend of the organisers (no, really).  Alcohol was served and Sieck became drunk. He and Przekurat left in the latter’s car, with Sieck driving. Inevitably an accident occurred, causing Prezkurat severe brain injuries.

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Hank Sieck (Image from here)

Sieck was imprisoned for four years and ordered to pay restitution to Przekurat of $833,194.10: People v Sieck, 351 P.3d 502 (Colo. Ct App., 2014). Prezkurat sued the party organisers. Colorado’s Dram Shop Act (12-47-801, CRS (2017)) provides at (4)(a)(I) that

No social host who furnishes any alcohol beverage is civilly liable to any injured individual … for any injury to such individual …, because of the intoxication of any person due to the consumption of such alcohol beverages, except when … It is proven that the social host knowingly served any alcohol beverage to such person who was under the age of twenty-one years or knowingly provided the person under the age of twenty-one a place to consume an alcoholic beverage.

The District Court summarily dismisses the claim, finding that a social host must actually know a guest is underage to sustain dram shop liability. The Court of appeal agreed: Przekurat v Torres, 2016 COA 177. Przekurat appealed to the Supreme Court of Colorado.

The Supreme Court agreed with the District Court. It found, firstly, that the requirement to act knowingly applied both to provision of a place to drink and also the (under)age of the drinker.

[T]he 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. To conclude that “knowingly” only modifies the act of providing the space would thus make that word superfluous in the statutory scheme.

The next question for the Court was whether the host must actually know the drinker’s age or whether constructive knowledge would suffice. Specific knowledge was found to be required under the norms of statutory construction –

Affording “knowingly” its “plain and ordinary meaning,”…, we conclude that actual knowledge is required. When the General Assembly imposes a constructive knowledge requirement, it typically provides that a person “should have known” of a particular thing. … Statutory interpretation in Colorado has consistently construed the words “know” or “knowingly” without that qualifying “should have known” to require actual knowledge.

Przekurat’s claim was dismissed.

Przekurat v Torres, 2018 CO 69

But the tree had to fall

Nobody asked the tree what it thought about the matter.

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Catalpa tree (Image from here)

In about 1930 a catalpa tree began to grow in the Washington Park neighbourhood of Denver. Eighty years of subdivisions and land transfers later, the tree was on the boundary of blocks owned by the Loves and the Kloskys (sadly, the case does not disclose that the blocks were called Blackacre and Whiteacre, which would have been rather cool). Specifically, 74% of the trunk was on Klosky’s land and 26% on Love’s land. The tree dropped leaves, braches and seed pods on both properties. Klosky decided to cut the tree down. Love objected and obtained a restraining order pending an injunction preventing Klosky felling the tree.  The Loves’ application was dismissed by the Denver District Court, although in words many garden lovers would understand  Judge Hoffman said –

[T]he law often requires me [to] do things I don’t want to do. If I [were] the emperor of Washington Park, I would, I would order this tree not cut down. It’s a beautiful tree, it’s a great tree. But that’s not my role. I’m not the emperor of Washington Park. I have to follow what I think the law is, and my conclusion is that the Loves have not met their burden of proof.

The Loves appealed to the Colorado Court of Appeals, which dismissed their application: Love v Klosky, 2016 COA 131. They appealed to the Supreme Court of Colorado.

The Supreme Court considered its earlier decision in Rhodig v Keck, 421 P.2d 729 (Colo., 1966). Rhodig was found to have embraced the very old English case of Masters v Pollie, 2 Rolle 141; 81 ER 712 (Kings Bench, 1620). That case had found that in a case like the present, where the tree encroached on anothers property, the tree belonged to the owner of the land where the tree was planted. Rhodig had added a gloss that where such a tree had been jointly planted, jointly cared for, or treated as a boundary between properties, it could become joint property between the neighbours. This was not the case here. There being no case for overturning Rhodig, Klosky was entitled to remove the tree.

Love v Klosky, 2018 CO 20