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                                                      ADVANCE SHEET HEADNOTE
                                                               September 10, 2018

                                      2018 CO 69

No. 17SC15, Przekurat v. Torres,—Statutory Construction—Colorado Dram Shop Act.

      The supreme court affirms the judgment of the court of appeals. The supreme

court holds that, under the plain language of section 12-47-801(4)(a), a social host who

provides a place to drink alcohol must have actual knowledge that a specific guest is

underage to be held liable for any damage or injury caused by that underage guest.
                      The Supreme Court of the State of Colorado
                      2 East 14th Avenue • Denver, Colorado 80203

                                        2018 CO 69

                            Supreme Court Case No. 17SC15
                         Certiorari to the Colorado Court of Appeals
                          Court of Appeals Case No. 15CA1327

                                        Petitioner:

 Jared J. Przekurat, by and through his parent, Co-Guardian, Co-Conservator and next
                                friend, Jerome Przekurat,

                                             v.

                                      Respondents:

       Christopher Torres, Samuel S. Stimson, Peter Stimson, and Mitchell Davis.

                                   Judgment Affirmed
                                         en banc
                                    September 10, 2018


Attorneys for Petitioner:
Ciccarelli & Associates, P.C.
A. Troy Ciccarelli
      Littleton, Colorado

The Fowler Law Firm, LLC
Timms R. Fowler
      Fort Collins, Colorado

Attorneys for Respondent Christopher Torres:
Hall & Evans, L.L.C.
Alan Epstein
      Denver, Colorado

Ray Lego & Associates
Thomas E. Hames
      Greenwood Village, Colorado

Attorneys for Respondents Samuel S. Stimson and Peter Stimson:
The Prendergast Law Firm P.C.
Paul Prendergast
      Littleton, Colorado

Attorneys for Respondent Mitchell Davis:
Campbell, Latiolais & Averbach, LLC
Colin C. Campbell
      Greenwood Village, Colorado

Attorneys for Amicus Curiae Colorado Defense Lawyers Association:
Ruebel & Quillen, LLC
Julia L. Stamski
Jeffrey Ruebel
        Westminster, Colorado

Attorneys for Amicus Curiae Colorado Trial Lawyers Association:
Burg Simpson Eldredge Hersh Jardine, PC
Jessica L. Derakhshanian
Nelson Boyle
       Englewood, Colorado


JUSTICE HART delivered the Opinion of the Court.
¶1    Does Colorado’s dram-shop liability statute require a social host who provides a

place to drink alcohol to have actual knowledge that a specific guest is underage to be

held liable for any damage or injury caused by that underage guest? Concluding that

the plain language of the statute is unambiguous, we hold today that it does.

                          I. Facts and Procedural History

¶2    One night in June 2011, Defendants Mitchell Davis, Samuel Stimson, Peter

Stimson, and Christopher Torres threw a party at a house they were renting in Boulder

to celebrate one defendant’s birthday and another’s college graduation. They invited a

number of people, and information about the party was posted on social media.

Between 20 and 120 guests attended at various points throughout the evening. Not all

who came to the party had been specifically invited by the defendants. Some heard

about it from other party-goers. Some guests may have brought their own alcohol, but

alcohol was provided by the party hosts as well.

¶3    Plaintiff Jared Prezkurat and Hank Sieck went to the party that night with Victor

Mejia. Mejia had heard about the party through a friend, Robert Fix, who knew the

defendants and helped plan the party.      Sieck was twenty-years old.     None of the

defendants knew Sieck before that night. During the party, the only interaction that any

of the defendants may have had with Sieck was a brief encounter when defendant

Torres greeted Mejia and others, saying to Mejia, “I don’t really know these other

people, but I know you.” Sieck, for his part, does not recall meeting Torres. There is no

evidence in the record that any of the defendants were aware that Sieck was underage.



                                           3
¶4     Sieck drank both beer and hard alcohol at the party. Around 2 a.m., Sieck, Mejia,

and Przekurat left the party in Przekurat’s car. Sieck drove, at times going more than

one-hundred miles per hour. He lost control of the car and drove into a ditch, rolling

the car several times. Przekurat was thrown from the vehicle and suffered severe, life-

altering injuries.

¶5     Przekurat’s father sued the defendant hosts on behalf of his son, alleging in

pertinent part that they knowingly provided a place for Sieck, an underage person, to

drink alcohol, and that they thus should be liable under section 12-47-801, C.R.S. (2017)

(“Dram Shop Act”),1 for the damages that resulted from Sieck’s actions.         All four

defendants moved for summary judgment on the ground that there was no evidence to

show that any of them actually knew that Sieck was drinking at their house or that he

was underage.        In response, Przekurat argued that constructive knowledge was

sufficient to establish social-host liability under the Dram Shop Act, and that since

defendants provided alcohol without restriction and there were many underage

drinkers at the party, there was sufficient evidence of constructive knowledge. The

district court granted summary judgment in favor of all four defendant hosts,

concluding that a social host must actually know that a person is underage in order to

impose liability under the Dram Shop Act, and finding that there was no evidence that




1In 2018, the General Assembly relocated this section with minimal changes that are not
pertinent to our analysis to section 44-3-801 as part of a new Title 44 of the Colorado
Revised Statute. Ch. 152, sec. 2, § 44-3-801, 2018 Colo. Sess. Laws 949, 1047–49.

                                           4
any of the defendants had actual knowledge of Sieck’s presence at their party or of his

age.

¶6       On appeal, a division of the court of appeals agreed with the district court that

the language of the Dram Shop Act clearly and unambiguously requires that a social

host must have actual knowledge that a person is underage in order to impose liability

for that person’s actions.

¶7       Przekurat petitioned for certiorari asking this court to determine whether

section 12-47-801(4)(a)(I) requires that a social host have actual knowledge of a person’s

underage status, or whether constructive knowledge is sufficient to impose liability.2

We conclude that the plain language of the Dram Shop Act requires actual knowledge,

and thus affirm the judgment.

                                        II. Analysis

                  A. Standard of Review and Canons of Construction

¶8       We review de novo questions of statutory interpretation such as this one. Build

It and They Will Drink, Inc. v. Strauch, 253 P.3d 302, 304 (Colo. 2011) (citing Clyncke v.




2   We granted certiorari to review the following issue:
         1. Whether the court of appeals negated the duty imposed by
            H.B. 05-1183 (C.R.S. § 12-47-801(4)(a)(I)) upon social hosts not to
            provide “a place” for underage drinking where the hosts threw a party
            and opened the venue to anyone of any age by requiring “actual
            knowledge” of a specific guest’s age.
The petition for certiorari did not raise whether summary judgment was properly
granted given the undisputed facts presented, so we do not address that issue now.

                                              5
Waneka, 157 P.3d 1072, 1076 (Colo. 2007)). Our fundamental duty in so doing is “to

give effect to the intent of the General Assembly,” looking first to the plain language of

the statute to ascertain its meaning. Id. at 304–05. We afford the words in the statute

their “plain and ordinary meaning,” Clyncke, 157 P.3d at 1077 (citing Golden Animal

Hosp. v. Horton, 897 P.2d 833, 836 (Colo. 1995)), seeking to give “consistent and

harmonious effect” to all the language of the statute, Colo. Common Cause v. Meyer,

758 P.2d 153, 161 (Colo. 1988).    Where the legislature has used the “same words or

phrases in different parts of a statute,” we ascribe a consistent meaning to those words

unless there is a “manifest indication to the contrary.” Id. If the language is “plain and

clear,” then we apply the statute “as written.” Clyncke, 157 P.3d at 1077 (citing Colo.

Water Conservation Bd. v. Upper Gunnison River Water Conservancy Dist., 109 P.3d

585, 593 (Colo. 2005)).

                   B. The Dram Shop Act’s Social Host Provision

¶9     The Dram Shop Act “provides the exclusive remedy for a plaintiff injured by an

intoxicated person against a vendor of alcohol beverages.” Build It, 253 P.3d at 305. In

passing the Dram Shop Act, the General Assembly noted that “the consumption of

alcohol beverages . . . is the proximate cause of injuries or damages inflicted upon

another by an intoxicated person except as otherwise provided in this section.”

§ 12-47-801(1), C.R.S. (2017). The Dram Shop Act limits a vendor’s or social host’s

liability for damage caused by an intoxicated person to the specific circumstances

defined in the statute. Prior to 2005, the statute provided that a social host was only

liable for the injuries caused by an intoxicated underage person if the host “willfully

                                            6
and knowingly served” any alcoholic beverages to that person. § 12-47-801, C.R.S.

(2004). In 2005, the General Assembly amended the law by eliminating the requirement

of willfulness and expanding liability to social hosts who not only knowingly serve

underage drinkers, but also knowingly provide a place for underage drinking. Ch. 282,

sec. 6, § 12-47-801, 2005 Colo. Sess. Laws 1244–45. The new text of the statute provides:

      No social host who furnishes any alcohol beverage is civilly liable to any
      injured individual or his or her estate for any injury to such individual or
      damage to any property suffered . . . because of the intoxication of any
      person due to the consumption of such alcohol beverages, except when:

      (I) It is proven that the social host . . . knowingly provided the person
      under the age of twenty-one a place to consume an alcoholic beverage . . . .

§ 12-47-801(4)(a), C.R.S. (2017) (emphasis added).

¶10   Przekurat makes two arguments as to why this provision does not require a

social host to have actual knowledge of a specific person’s underage status to be liable

for that underage person’s actions. First, Przekurat argues that “knowingly” in the

social-host provision only requires knowledge about the provision of the space and not

about the age of the person. Second, Przekurat urges us to construe the language of the

statute to impose liability on a social host who has only constructive knowledge—or,

who should have known—that a particular individual was under the age of twenty-one

when providing a place for them to consume alcohol. In so doing, Przekurat argues

that the General Assembly intended to expand liability under the statute to cover this

sort of situation when it amended the statute in 2005.       The plain language of the

amended statute cannot hold the meanings Przekurat ascribes to it.



                                            7
                     C. The Word “Knowingly” Applies to the
                           Age of the Underage Person

¶11    In interpreting the social host provision of the Dram Shop Act, we must first

determine what “knowingly” modifies—does it only apply to the provision of a place,

or does it also apply to the age of the underage drinker? Przekurat argues for the

former, whereas the defendant hosts argue that it applies to the latter as well. The court

of appeals, relying on Dickman v. Jackalope, Inc., 870 P.2d 1261 (Colo. App. 1994), held

that the plain language of the statute indicates that “knowingly” applies to all elements

of liability under the statute. We agree.

¶12    In Dickman, the court of appeals was faced with whether the phrase “willfully

and knowingly” in the Dram Shop Act’s subsection on liquor-licensee liability—then

section 12-47-801(4)(a)—applied only to the licensee’s mental state regarding the sale or

service of alcohol or whether it also applied to his or her knowledge of the person’s age.

Id. at 1262. The injured plaintiff in that case argued that it only applied to the sale or

service of the alcohol, and not to the age of the underage drinker. Id. The court of

appeals disagreed, noting that the plaintiff’s interpretation would “render the ‘willful

and knowing’ language meaningless since it is difficult to imagine any sales or service

of alcohol by a licensee which are not deliberate.” Id.

¶13    Although Dickman dealt with a different portion of the Dram Shop Act than we

are faced with today, we agree that the court of appeals correctly determined by

analogy that the “mens rea”—here, “knowingly”—applies to both portions of the “actus

reus”—in this case, to both the provision of the space for alcohol consumption and the


                                            8
age of the specific underage drinker. Of course, the 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.

And we see no reason to conclude that the mental state would apply to the age of the

person under section 12-47-801(3)(a)(I), as the court of appeals correctly concluded that

it did in Dickman, but that it would not apply in the parallel provisions of

section 12-47-801(4)(a).

¶14    Przekurat argues that the elimination of the word “willfully” from

section 12-47-801(4)(a)(I) eliminates the mens rea requirement as it applies to a social

host’s knowledge of the age of a specific drinker. We are not persuaded. We must

presume that the General Assembly was aware of Dickman’s holding that the mens rea

requirement applies to the age of the underage drinker when it amended the statute in

2005. See Specialty Restaurants Corp. v. Nelson, 231 P.3d 393, 403 (Colo. 2010) (citing

Vaughan v. McMinn, 945 P.2d 404, 409 (Colo. 1997)) (”The [General Assembly] is

presumed to be aware of the judicial precedent in an area of law when it legislates in

that area [and] is presumed to adopt the construction which prior judicial decisions

have placed on particular language when such language is employed in subsequent

legislation.”). If the General Assembly had wished to supersede that holding, it could

have changed the syntax or added explicit language to clarify that the mens rea

requirement only applies to the provision of alcohol or a space to consume it in the

                                           9
social host provision.   It did neither, and we are not convinced that in deleting

“willfully” the General Assembly evinced an intent to limit the mens rea of

“knowingly” to only the provision of alcohol or a place to consume alcohol.3

            D. The Word “Knowingly” Requires Actual Knowledge

¶15   Having resolved that the statutory mens rea applies to both elements of the

social-host section of the Dram Shop Act, we must next determine what “knowingly”

means—does it require that the social host have actual knowledge of the specific

underage person’s age in order to attach liability, or does constructive knowledge

suffice? Affording “knowingly” its “plain and ordinary meaning,” Clyncke, 157 P.3d at

1077, we conclude that actual knowledge is required. When the General Assembly

imposes a constructive knowledge requirement, it typically provides that a person




3 Our conclusion is grounded in the plain language of the statute. We note, however,
that it is corroborated by legislative history, which indicates that this word was struck
in order to avoid the potential of a defendant’s homeowner’s insurance company
denying coverage of an intentional tort. Before the House Judiciary Committee, a
representative of the Colorado Trial Lawyers Association explained the reasoning
behind this change:
      The amendment that is being proposed is to strike the words “willfully
      and” from the language in the social host aspect of the bill. And, the
      singular purpose of this [deletion] is to allow the parent or the elder
      brother or someone like that [who] supplies [the] keg to have access to
      homeowners insurance, [as] the word ‘willfully’ takes it out of the
      purview of the insurance. So if the insurance is not applicable then the
      victim would have, in many instances, no access to any monetary award
      at the hands of the jury. [T]his simply makes it so it is not an intentional
      tort, that [it] can be less than intentional. The knowingly remains.
Hearing on H.B. 1183 before the H. Judiciary Comm., 65th Gen. Assemb., 1st Reg. Sess.
(Feb. 17, 2005) (emphasis added).

                                           10
“should have known” of a particular thing. See, e.g., § 13-21-115(3)(c)(I), C.R.S. (2017)

(imposing premises liability on a landowner who unreasonably fails to protect against

dangers of “which he actually knew or should have known”). Statutory interpretation

in Colorado has consistently construed the words “know” or “knowingly” without that

qualifying “should have known” to require actual knowledge. See State ex rel. Suthers

v. Mandatory Poster Agency, Inc., 260 P.3d 9, 14 (Colo. App. 2009) (interpreting

“knowingly” in one portion of the Colorado Consumer Protection Act to require actual

knowledge while noting that other portions of the CCPA provide liability when the

person “knows or should know” they are making a misrepresentation); cf. People v.

Coleby, 34 P.3d 422, 424 (Colo. 2001) (holding that a criminal statute that required an

“actual knowledge” mental state as to one element of the crime imposed a “knowingly”

mens rea to all elements of that crime). Unsurprisingly, Przekurat has been unable to

point to any other situation in which we have construed the word “knowingly”—

standing alone—to allow for constructive knowledge.

¶16   Our interpretation is also consistent with prior decisions in which the word

“knowingly” has been interpreted in other sections of the Dram Shop Act to require

actual knowledge. In Build It, for instance, we were asked to determine whether the

Dram Shop Act required an analysis of reasonable foreseeability in determining the

liability of a liquor licensee under then section 12-47-801(3)(a). 253 P.3d at 304. We

concluded that under the plain language of that section, foreseeability was not an

additional element or consideration. Id. at 308. In so doing, we noted that the word

“knowingly” connoted a requirement of actual knowledge:

                                           11
          Liability under section 12-47-801 turns on proof that the liquor licensee
          “willfully and knowingly” served a visibly intoxicated person. As a
          result, liability depends on a finding that the liquor licensee had a
          particular mental state. In fact, this standard requires proof of a relatively
          high level of fault, because it turns on the licensee having actual
          knowledge of the patron’s intoxicated state and willfully serving alcohol
          to the person anyway. It would not be enough that the licensee “should
          have known” that the person was visibly intoxicated.

Id. (emphases added). We do not see any “manifest indication,” Meyer, 758 P.2d at 161,

that the General Assembly intended the word “knowingly” to mean actual knowledge

under section 12-47-801(3)(a) and constructive knowledge under section 12-47-801(4)(a).

¶17       We therefore conclude that “knowingly” requires actual knowledge of the age of

the underage drinker. In so doing, we note that we are not persuaded by Przekurat that

the General Assembly’s deletion of “willfully” from the social-host provision in 2005

changed the meaning of “knowingly” to allow for constructive knowledge. Affording

these terms their plain and ordinary meanings, there is a clear distinction: “knowingly”

refers to one’s awareness of objective facts, while “willfully” pertains to one’s subjective

intent to act on—or in spite of—that awareness. We are not convinced that in deleting

the word “willfully” from the social-host provision the legislature intended to lower the

level of knowledge that a social host must have of the underage drinker’s age to be

liable.

¶18       Because we base our conclusion on the clear and unambiguous language of the

statute, we do not reach Przekurat’s arguments that the legislative history of the 2005

amendment demonstrates that the General Assembly intended to expand liability to

cover circumstances like those presented here. This is not to turn a blind eye to the vital


                                               12
policy considerations implicated by this situation. Underage drinking in Colorado is a

serious problem that merits close attention by the legislature. As voiced by Przekurat

throughout this case, there may be strong policy arguments in favor of imposing

liability on social hosts who should have reason to know that they are providing a place

for underage drinking.    Such policy considerations, however, are for the General

Assembly to weigh. The statute, as written, does not impose such liability.

                                   III. Conclusion

¶19    We thus hold that the plain language of section 12-47-801(4)(a) requires that a

social host have actual knowledge of an underage guest’s age in order to be liable for

injury or damages resulting from that guest’s intoxication. We affirm the judgment of

the court of appeals.




                                           13
