Groh v. Westin Operator, LLC , 352 P.3d 472 ( 2013 )

Opinion by

JUDGE WEBB

1 1 This personal injury action presents an issue of first impression in Colorado: whether a hotel's duty of care to a guest requires that, in lawfully evicting the guest, the hotel act reasonably. We conclude that a hotel must eviet a guest in a reasonable manner, which precludes ejecting a guest into foresee-ably dangerous cireumstances resulting from either the guest's condition or the environment. We further conclude that here a reasonable jury could find a breach of this duty on the present record. Therefore, we reverse the summary judgment against plaintiff, Jillian Groh, and in favor of defendant, Westin Operator, LLC (the Westin), in part, and remand for further proceedings, limited to her negligence claim based on the eviction.

I. Facts for Purposes of Summary Judgment

A. The Eviction

T2 Groh planned to spend the night of March 8, 2007, with friends visiting night clubs in downtown Denver. She reserved a room at the Westin's downtown hotel. Although Groh was the only registered guest, two of her female friends checked in with her and the Westin gave each of them a key to the room.

T8 After having consumed alcoholic beverages throughout the evening, Groh, the two girlfriends, and eight other persons gathered in the room. Around 2:45 am., a security guard heard loud noises coming from Groh's room. Although no other guests had complained, the guard went to the door and asked for the person in charge. Over the next few minutes, a series of escalating interactions occurred among this guard, a second guard, the hotel manager, Groh, and some of the others in the room. One guard entered the room without Groh's permission, to which she objected.

1 4 During these interactions, at least one person told the Westin employees that everyone in the group was "drunk," "that was the whole purpose" of the room having been rented, and the guard could not expect them to leave because "We are drunk. We can't drive." Ultimately, because Groh was the registered guest, the manager asked that she stay, but would not let the others remain. Groh said that she would leave as well.

{5 During the negotiations between Groh and the Westin employees, several members of her party decided to leave the hotel and were not involved in any of the following events. Shortly after 3:00 a.m., Groh and the remainder of her group were escorted to the front entrance of the hotel by the guards. Although police officers were on the premises investigating an unrelated incident, the Westin did not involve them.

T6 The first security guard blocked the doorframe with his body as the last person exited. One of Groh's friends asked the guard, "Hey, man, it's freezing out here, can we wait in the lobby while we get a cab?" The guard crossed his arms and said, "No, get the f* * * out of here."¹

B. The Accident

T7 Groh and the remaining six persons in the group walked down a ramp into the parking garage below the hotel. They passed several vehicles, including a taxi. Angela Reed offered to drive. Groh handed Reed the keys to her vehicle. Groh and the others entered the vehicle, with Reed behind the wheel.

T8 Around 4:00 a.m., several miles from the hotel in route to Groh's home, Reed rear-ended a vehicle that was traveling well below the speed limit. A toxicology expert estimated that Reed's blood alcohol content was between 0.170 and 0.222 at the time of the accident. Groh sustained severe and permanent injuries.

C. The Trial Court's Ruling

T9 Groh sued the Westin for damages under several negligence and breach of contract claims. The trial court granted summary judgment for the Westin, concluding in relevant part:

[Blased on [Groh]'s alleged claims for negligence, in order for [the] Westin to be liable for negligence there must be a duty for a hotel, when evicting guests, to ensure that they do not drive away drunk.

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This Court holds that hotels do not have a legal duty to prevent injuries subsequent to eviction by preventing drunk driving. To hold otherwise would put hotels in the impossible position of exercising control over others when they have no right to do so.

« 10 The court also found that the Westin had the right to evict Groh and the group based on her breach of the contract, and that the Westin had not waived its right to object to the number of persons in the room:

(Giroh breached her contract by inviting more than three people to stay at her room in the hotel, and this alone is enough to justify [the] Westin's termination of the contract.

Arguably, [the] Westin waived its right to insist that only one person stay in the room when it knowingly and intentionally issued three keys.

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However, it did not waive its rights with regard to any persons above that number. Testimony favoring both sides reveals that between seven and eleven people were staying in the room. Therefore, when [the] Westin discovered the breach of contract, it was within its contractual rights to revoke the property right provided by the contract and to evict the guests.

IL. Summary Judgment

T11 Appellate review of summary judgment is de novo, Woods v. Delgar Ltd., 226 P.3d 1178, 1180 (Colo.App.2009), informed by the following principles. Summary judgment is appropriate only when the pleadings, affidavits, depositions, answers to interrogatories, or admissions show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. C.R.C.P. 56(c); Continental Air Lines, Inc. v. Keenan, 731 P.2d 708, 712 (Colo.1987). The burden of establishing the nonexistence of a genuine issue of material fact is on the moving party. Continental Air Lines, 731 P.2d at 712. The nonmoving party is entitled to the benefit of all favorable inferences reasonably drawn from the undisputed facts, and all doubts are resolved against the moving party. A.C. Excavating v. Yacht Club II Homeowners Ass'n, 114 P.3d 862, 865 (Colo.2005).

1 12 Applying these principles to the existing record, the following questions must be resolved in Groh's favor at this stage of the proceedings:

e Whether she was intoxicated;

e Whether she was assaultive or otherwise threatening to other guests while in the hotel;

e Whether the "freezing" outside temperature at the time of the eviction posed a risk to her;

e Whether the request to wait for a taxi in the lobby was made on her behalf.

In addition, for purposes of summary judgment only, the Westin concedes that Groh was evicted.

III. Duties of an Innkeeper

$18 The special relationship between an innkeeper and a guest obligates the innkeeper to exercise ordinary care concerning the guest. See, eg., Burchmore v. Antlers Hotel Co., 54 Colo. 314, 317, 130 P. 846, 847 (1913). As a corollary of this duty, other jurisdictions recognize that an innkeeper can evict a guest only "in a manner reasonable under the circumstances." Rodriguez v. Primadonna Co., 125 Nev. 578, 216 P.3d 798, 798 (2009); Raider v. Dixie Inn, 198 Ky. 152, 248 S.W. 229, 230 (1923) (innkeeper must remove guest in a reasonable manner). Although the Colorado appellate courts have not addressed the latter principle, we find such cases well-reasoned and follow them here.

A. Scope of the Duty to Eviect in a Reasonable Manner

[14 In Dagen v. Marriott International, Inc., 2006 WL 3728344, *4 (N.D.N.Y. No. 1:05CV1593, Dec. 18, 2006) (unpublished memorandum decision denying defendant's summary judgment motion), the court explained, "Defendants could reasonably foresee that some type of harm awaited Plaintiff if they expelled him from the hotel. Common sense and common courtesy hold that innkeepers are expected to shelter those who have sought their protection-and have: a duty not to inject those same people into obviously dangerous situations." However, the court did not describe the perils involved. At a minimum, cireumstances such as the guest's condition and the environment outside the hotel will influence the reasonable manner calculus. See McHugh v. Schlosser, 159 Pa. 480, 28 A. 291, 292 (1894) ("The question which the defendants were bound to consider before putting the decedent out in the storm was not whether such exposure 'would surely cause death, but what was it reasonable to suppose might follow such a sudden exposure of the decedent in the condition in which he then was.").

€15 Our supreme court has treated common carriers like innkeepers for purposes of special relationship analysis. Univ. of Denver v. Whitlock, 744 P.2d 54, 58 (Colo.1987). Hence, common carrier cases involving ejection of passengers are informative.

[81 116 A common carrier may be liable for injuries caused by exercising its right to eject a passenger "at a time or place which is dangerous." McCoy v. Millville Traction Co., 88 NJ.L. 508, 85 A. 358, 360 (E. & A.1912) (drunken passenger was ejected into the snow); see also Bragg's Adm'x v. Norfolk & W. Ry. Co., 110 Va. 867, 67 S.E.. 598, 595 (1910) ("the condition of the weather and of the place where he was ejected ... would naturally imperil his safety, in addition to his intoxicated condition"); Texas Midland R.R. Co. v. Geraldon, 54 Tex.Civ.App. 71, 117 S.W. 1004, 1007 (1909) ("the right to eject must be exercised in a proper manner and at the proper time and place"), aff'd, 108 Tex. 402, 128 S.W. 611 (1910); Brown v. Chicago, Rock Island & Pac. R.R. Co., 51 Towa 285, 1 N.W. 487, 490 (1879) ("all the cireumstances should be considered; as the physical condition of the person ejected; the time, whether in daylight or late at night; ... the place of the ejectment; ... [and] the character of the weather, whether pleasant or inclement"); Commerce Ins. Co. v. Ultimate Livery Service, Inc., 452 Mass. 639, 897 N.E.2d 50, 57 (2008) ("the tort defendants owed a duty of reasonable care to avoid discharging a passenger, who they knew, or should have known, was intoxicated and likely to drive an automobile"); Kelleher v. F.M.E. Auto Leasing Corp., 192 A.D.2d 581, 596 N.Y.S.2d 136, 189 (1993) (cab driver who ejected an intoxicated passenger into the snow was under duty "to care for its intoxicated passenger in a prudent manner, not to leave him in a worse position than when it took charge of him").²

{17 Also informative are cases alleging wrongful eviction of a patron from a tavern. For example, in Hoff v. Elkhorn Bar, 613 F.Supp.2d 1146, 1154, 1160 (D.N.D.2009), the court held that "Defendants were under a duty to exercise reasonable care and to take reasonable action as to their patrons, including a general duty to exercise reasonable care in ejecting Randall Hoff from the Elk-horn Bar in the midst of winter." Similarly, in Harris v. Gower, Inc., 153 Ill.App.3d 1035, 106 Ill.Dec. 824, 506 N.E.2d 624, 626 (1987), the court recognized that "Plaintiff properly predicated her complaint on the fact that defendants' placing of the unconscious decedent in his truck on a very cold winter night is the act which allegedly led to plaintiff's husband's death." ³

118 Therefore, we conclude that although the Westin properly terminated its contract with Groh and then could evict her, the disputed facts and favorable inferences noted above preclude finding, as a matter of law, that it did so in a reasonable manner. On the present record, a reasonable jury could find that:

e The Westin did not act reasonably because of Groh's intoxicated condition (and that of her companions), the late hour, and the "freezing" outside temperature, which might have exposed her to a foreseeable risk of injury, and

eThe Westin could have mitigated this risk by telling Groh (or her companion, who sought reentry but was barred) that she could wait in the lobby a reasonable time for a taxi, which it could have called for her; or it could have summoned police officers, who were on the premises in an unrelated matter, and turned her over to an officer for a welfare check and transportation to a detox facility, if appropriate.

19 The Westin's assertion that its special relationship to Groh ended upon culmination of the eviction, thereby precluding liability for post-eviction harm proximately caused by its failure to evict in a reasonable manner, is unpersuasive. In Sheron v. Lutheran Medical Ctr., 18 P.3d 796 (Colo.App.2000), a division of this court upheld a jury verdict against the hospital on the basis that emer-geney department personnel had acted unreasonably in failing to conduct an adequate mental health status examination and discharging plaintiff's deceased, who committed suicide the next day, rather than placing him under a mental health hold. See also Jefferson County Sch. Dist. R-1 v. Justus, 725 P.2d 767, 772 (Colo.1986) (reversing summary judgment for school district because, having undertaken "the task of enforcing a rule that students in the lower grades were not eligible to ride bicycles to and from school," district could be liable for student's injuries several blocks away from the school suffered in a bicycle/ automobile accident as student rode home).

120 As these cases recognize, a duty of care may be found even where the injury resulting from a breach of that duty occurred after the parties' relationship ended, off the defendant's premises, or both. See also Reynolds v. CB Sports Bar, Inc., 623 F.3d 1148, 1150 (7th Cir.2010) (recognizing under Illinois law, claim against tavern for injuries suffered by patron in escaping from other patrons, who bartender allegedly knew intended to assault her, after they left the bar, and explaining, "the fact that Reynolds' injuries were sustained more than one mile away from CB Sports's bar does not necessarily preclude finding a duty here").

[21 Although the explanation for partially reversing the summary judgment could end here, no Colorado appellate court has addressed a hotel's duty to evict in a reasonable manner, and the analogies to common carrier and tavern cases could be challenged. For these reasons, we turn to general duty principles and reexamine our conclusions that the Westin owed Groh a duty to act reasonably in the eviction, and that the record includes evidence from which a reasonable jury could find that the Westin did not act with ordinary care in doing so.⁴

B. Seope of Innkeeper's Duty

1. General Duty Principles

122 To establish a prima facie negligence claim, a plaintiff must show (1) a legal duty of the defendant, (2) breach of that duty, (3) causation, and (4) damages. Seq, e.g., Davenport v. Cmty. Corr. of Pikes Peak Region, Inc., 962 P.2d 963, 966 (Colo.1998).

128 Because the threshold issue is whether the defendant owed the plaintiff a duty, "[a] negligence claim must fail if [it is] based on cireumstances for which the law imposes no duty of care upon the defendant for the benefit of the plaintiff." Whitlock, 744 P.2d at 56. Whether a particular defendant owes a legal duty of care to a particular plaintiff is a question of law subject to de novo review. Bath Excavating & Constr. Co. v. Wills, 847 P.2d 1141, 1147 (Colo.1998); Woods, 226 P.3d at 1180.

124 Breach of duty is determined based on a standard of conduct, typically- and for innkeepers, exelusively-ordinary care. Scott v. Matlack, Inc., 39 P.3d 1160, 1166 (Colo.2002). Thus, "[olnee the existence of a legal duty is found, it is the further function of the court to determine and formulate the standard of conduct to which the duty requires the defendant to conform." Imperial Distrib. Services, Inc. v. Forrest, 741 P.2d 1251, 1254 (Colo.1987) (quoting Restatement (Second) of Torts $ 328B emt. f (1965)). After being instructed on the standard of conduct, the jury applies this standard to the facts of the case. Id. at 1256.

125 In answering the duty question, a court must consider many factors, "including, for example, the risk involved, the foreseeability and likelihood of injury as weighed against the social utility of the actor's conduct, the magnitude of the burden of guarding against injury or harm, and the consequences of placing the burden upon the actor." Casebolt v. Cowan, 829 P.2d 352, 856 (Colo.1992) (quoting Smith v. City & County of Denver, 726 P.2d 1125, 1127 (Colo.1986), superseded by§ 18-21-115, C.R.S.1987, as recognized in Vigil v. Franklin, 108 P.3d 822, 325 n.3 (Colo.2004)). Other factors include, "convenience of administration, capacity of the parties to bear the loss, a policy of preventing future injuries, the moral blame attached to the wrongdoer, and availability, cost, and prevalence of insurance." Whitlock, 744 P.2d at 57 n.2; see also Wheeler v. Eagle County, 666 P.2d 559, 562 (Colo.1988) (Rovira, J., dissenting) (factors include "the parties' relative ability to adopt practical means of preventing injury; the relative ability of the parties to bear the financial burden of injury and the availability of means by which the loss may be shifted or spread") (quoting Raymond v. Paradise Unified Sch. Dist., 218 Cal.App.2d 1, 81 Cal.Rptr. 847, 851 (1963)).

126 These factors are not exclusive, no single factor controls, "and the question of whether a duty should be imposed in a particular case is essentially one of fairness under contemporary standards-whether reasonable persons would recognize a duty and agree that it exists." Whitlock, 744 P.2d at 57 (quoting Taco Bell, Inc. v. Lannon, 744 P.2d 43, 46 (Colo.1987)).

2. Nonfeasance/ Malfeasance

27 Both the Westin and the dissent correctly point out that our supreme court has been more hesitant in applying these factors to find duty in eases of failure to act (nonfea-sance) rather than in cases of negligent action (malfeasance). In Whitlock, 744 P.2d 54, for example, the court found that mere authority to regulate trampoline use on university-owned property "militates against" creating a duty to a person injured while using a trampoline owned by a fraternity on property it leased from the university. Id. at 57. But here, analyzing Grof's case as purely a failure to act is unhelpful, for two reasons.

128 First, nonfeasance liability exists in "a limited group of special relationships between parties." Id. at 58. Examples of those relationships "include common carrier/ passenger, innkeeper/guest, [and] possessor of land/invited entrant." Id. "The genesis for the special relationship analysis lies in the jurisprudence of tort law," Henderson v. Gunther, 931 P.2d 1150, 1155 (Colo.1997), not the terms of the parties' contracts. Thus, within such special relationships, one of which is before us, the general duty factors still apply, even where only non-feasance is alleged. See Taco Bell, 744 P.2d at 46 (affirmative duty owed to take steps to protect business invitees from robbery of business).

129 Second, in Whitlock, 744 P.2d at 59 n 4, the court recognized that "under some fact situations the difference between negligent action and negligent failure to act can be simply a matter of characterization." Id. It explained that the "present case is one of pure failure to act ... where the University ... had no part in creating [the peril]" (emphasis added). Id.

1 30 In contrast, a jury could find that the Westin set in motion the chain of events that led to Groh's injury by entering her room without permission; deciding to evict her notwithstanding the absence of any complaints from other guests; and then-despite knowing that she was intoxicated and was accompanied by others who were as well-escorting her from the premises rather than allowing her to wait for a taxi in the lobby, a public area. See Smit v. Anderson, 72 P.3d 369, 373 (Colo.App.2002) (applying misfeasance analysis to impose a duty to supervise a party injured while constructing a house on a general contractor whose only role in the project was pulling a building permit on the homeowner's behalf, as this act "created the cireumstances that placed Smit at risk of harm").

3. Application of General Duty Factors to Innkeeper Lawfully Evicting Guest

a. Foreseeability of Injury

[ 31 "[F lJoreseeability "includes whatever is likely enough in the setting of modern life that a reasonably thoughtful person would take account of it in guiding practical conduct." Taco Bell, 744 P.2d at 48 (quoting 3 F. Harper, F. James, & O. Gray, The Law of Torts § 18.2, at 658-59 (2d ed. 1986)).

1 32 Reasonably foreseeable risks involved in evicting a guest could arise during the eviction because of the guest's need for assistance or particular vulnerability to any force involved. Such risks could also arise after the eviction as to a guest who, like Groh, is intoxicated and far from home, late on a winter evening, and in the company of other intoxicated persons. Such a guest cannot immediately mitigate the intoxication, and thus is suffering from impairment of both physical abilities and judgment. The guest could be harmed by cireunmstances beyond the guest's practical control-for example, the guest could slip and fall on ice or walk into a low-visibility location, pass out, and suffer hypothermia.

133 The particular risk that ripened into injury here-entering a vehicle, entrusting an intoxicated person to drive, and crashing several miles away from the Westin-is not the measure of reasonable foreseeability for purposes of deciding duty. See Ballard v. Uribe, 41 Cal.3d 564, 224 Cal.Rptr. 664, 715 P.2d 624, 628 n.6 (1986) ("a court's task-in determining 'duty'-is not to decide whether a particular plaintiff's injury was reasonably foreseeable in light of a particular defendant's conduct, but rather to evaluate more generally whether the category of negligent conduct at issue is sufficiently likely to result in the kind of harm experienced that liability may appropriately be imposed on the negligent party").

T34 The dissent's reliance on Whitlock, 744 P.2d at 57, to constrain the duty inquiry, based on the particular injury that Groh sustained, is unpersuasive because the plaintiff in Whitlock suffered the only type of injury-falling off a trampoline-possible from breach of the alleged duty, failure to require supervision of a trampoline in a public area. Instead, the duty inquiry should be limited to whether Groh is a member of a class-intoxicated guests-to whom harm from eviction is reasonably foreseeable. See White v. Pines Enterprises, Inc., 728 P.2d 759, 761 (Colo.App.1986) (landscaper who sprinkled sidewalk on a cold day "owed a general duty of care to all persons who might reasonably be foreseen to incur physical injuries as a result of such conduct," and "Plaintiffs were within that class of persons") (emphasis added); see also Montoya v. Connolly's Towing, Inc., 216 P.3d 98, 105 (Colo.App.2008) (recognizing "a risk that either friends and family members using its storage lot or third parties could be injured") (emphasis added); In re Estate of Blacher, 857 P.2d 566, 568 (Colo.App.1998) ("A duty of reasonable care may arise when there is a foreseeable risk of injury to others from a defendant's failure to take protective action to prevent the injury.") (emphasis added).

11 35 If a plaintiff comes within such a class, remoteness of the peril that ripens does not negate duty. See Doe v. Sisters of Holy Cross, 126 Idaho 1036, 895 P.2d 1229, 1234 n2 (Idaho Ct.App.1995) ("A distinction exists, however, in that a breach of the duty of care may occur and yet the plaintiff's particular injury may exceed all bounds of reasonable foreseeability.") (quoting W. Page Keeton et al., Prosser and Keeton on the Law of Torts §§ 42-48 (5th ed. 1984)).

T86 Hence, if a court finds a duty and a trier of fact concludes that a defendant breached this duty by failing to act according to the standard of conduct, the particular risk that ripens presents only an issue of proximate cause. See Raleigh v. Performance Plumbing & Heating, 130 P.3d 1011, 1021 (Colo.2006) (Mullarkey, C.J., concurring in part and dissenting in part) (quoting Restatement (Third) of Torts § 29 emt. f (Proposed Final Draft No. 1, 2005)) ("[DJuty is a preferable means for addressing limits on liability when those limitations are clear, are based on relatively bright lines, [and] are of general application.... On the other hand, when the limits imposed require careful attention to the specific facts of a case, and difficult, often amorphous evaluative judgments for which modest differences in the factual circumstances may change the outcome, scope of liability [or proximate cause] is a more flexible and preferable device for placing limits on liability."); Nelson v. Commonwealth Edison Co., 124 Ill. 655, 80 Ill.Dec. 401, 465 N.E.2d 518, 519 (1984) ("While foreseeability is thus a proper matter for a court to consider in making its duty determination, the sounder approach would be to recall that the duty issue is broad in its implication and it is only the jury's negligence determination which need be strictly confined to the facts of the particular case.").

b. Social Utility of Eviction

137 The social utility of allowing an innkeeper to lawfully end the special relationship with a guest and evict the guest is significant. However, requiring that the innkeeper act reasonably in evicting the guest, where the cireumstances place the guest at risk during the eviction or present an imminent risk of post-eviction injury, would not outweigh that social utility. For example, the duty of care involving an intoxicated guest could be satisfied by providing the guest with mobility support during the evietion, allowing the guest to remain on the premises long enough to call a taxi, offering to call a taxi for the guest, or turning the guest over to a police officer for a welfare check and, if appropriate, transportation to a detox facility. The burden on innkeepers to take such steps would be "relatively inexpensive." Taco Bell, 744 P.2d at 49. Hence, the costs would be properly "borne by the owner, operator, and, indirectly, the customers." Id.⁵

c. Countervailing Duties

138 Innkeepers have a duty "to use reasonable care to protect its guests from third persons." Allen v. Ramada Inn, Inc., 778 P.2d 291, 293 (Colo.App.1989); see also Restatement (Second) of Torts § 344 emt. d (1965). According to the Westin, were it required to allow an evicted guest such as Groh, whom it had already determined had no right to remain on the premises, to stay in the lobby, the Westin would be at risk of breaching its duty to other guests if an altercation with Groh ensued. However, this assertion conflates the broad duty question with circumstances informative of what would be required of the innkeeper to meet the ordinary care standard of conduct by evicting in a reasonable manner under the particular facts presented.

189 Here, as indicated, a question exists whether Groh's own behavior posed any risk to other guests. From the evidence in the present record, a jury might reasonably conclude that the sole basis for eviction was Groh allowing too many people into her room. Such action does not suggest peril to other guests. Hence, the jury must be allowed to decide whether the Westin could have reconciled these competing duties by permitting Groh to remain in the lobby for the limited time required to summon a taxi, while having the guard who had positioned himself in the doorway or the other guard who had been involved in the eviction monitor her, if necessary.⁶

d. Consequences of Imposing a Duty

40 The consequences of holding an innkeeper responsible for failing to exercise ordinary care in evicting a guest who became intoxicated would not, as the dissent suggests, unfairly shift responsibility from the guest to a person or entity that had no role in causing such intoxication. A guest who, like Groh, reserves a room in anticipation of possible intoxication is attempting to reduce the risks that would otherwise arise from becoming intoxicated, far from home and late on a winter evening. Merely returning to a reserved hotel room in an intoxicated state does not create significant risk. Nor does inviting other people into the room.

T41 Further, innkeepers are in a better position than guests to take steps that would avoid injury arising from a guest's intoxication, such as those discussed under Social Utility of Eviction above.⁷ The guest's intoxication will dissipate only with the passage of time; until then, the guest will suffer from impaired judgment, among other limitations. But the innkeeper's personnel deciding how to handle an eviction should be unimpaired.

42 Moreover, recognizing an innkeeper's duty to evict in a reasonable manner does not absolve Groh from personal responsibility. See § 18-21-111, C.R.S.2012 (comparative negligence). As explained in Commerce Ins. Co., 897 N.E.2d at 60, Groh's conduct "will be a factor for the jury to consider in deciding whether [the Westin's] duty was violated, and in determining causation."

143 Based on these factors, we conclude that reasonable persons would recognize an innkeeper's duty to evict in a reasonable manner, including steps which would protect a guest who is being evicted from reasonably foreseeable harm suffered by the guest during or shortly after the eviction. This conclusion accords with the statement in New Albany Hotel Co. v. Dingman, 66 Colo. 306, 308-09, 181 P. 126, 127 (1919), that the "innkeeper's liability does not, however, cease at the very instant a guest leaves the inn." The court went on to recognize that the guest has "a reasonable length of time ... in which to remove his goods, during which period the extraordinary lability of the innkeeper continues." Id. at 309, 181 P. at 127. Given the greater social consequences of personal injury than property damage, this principle should apply here.

4 44 Rodriguez, on which the district court relied, is distinguishable. There, a minor guest and two adult guests became intoxicated on liquor sold by the defendant hotel and then engaged in disruptive behavior in the hotel. 216 P.3d at 796. They were asked to leave, although one of the adults told hotel personnel that they could not leave but should be allowed to "sleep it off." Id. The guests were escorted to their car, where they tried to sleep, but a security guard ordered them out of the parking lot. Id. at 796-97. The guests drove away, were involved in a one-car accident, and the minor suffered serious injuries. Id. at 797.

145 The Nevada Supreme Court declined to recognize a duty "to prevent injuries caused by the intoxicated patron that are sustained either by the patron or by third parties after the eviction has been executed." Id. at 799. The court reasoned that "[the hotel] did not have the duty to arrange safer transportation, prevent an intoxicated driver from driving, or prevent [the minor], a passenger, from riding with a drunk driver." Id. at 800. However, the opinion does not address whether the guests had requested to remain on the premises while they summoned a taxi. Nor does it indicate whether the outside temperature or other weather conditions exposed the guests to any risks. Further, the court considered the hotel's statutory right to evict, which has no analog in Colorado.

146 In sum, because disputed facts exist as to whether the Westin evicted Groh in a reasonable manner, and its duty to act with ordinary care extended to protect her against reasonably foreseeable harm after she was escorted out of the lobby, that portion of the summary judgment must be reversed.⁸

4. Proximate Cause

147 Finally, we conclude that proximate cause, which the trial court did not address, cannot be resolved as a matter of law and must be presented to the jury.

148 "Proximate cause is ordinarily a question of fact for the jury and may be decided as a matter of law only when reasonable minds could draw but one inference from the evidence." In re Estate of Heckman, 39 P.3d 1228, 1282 (Colo.App.2001). It is a question of law "ouly in the clearest cases when the facts are undisputed and it is plain that all intelligent persons can draw but one inference from them." Moon v. Platte Valley Bank, 634 P.2d 1036, 1038 (Colo.App.1981) (quoting Barker v. Colo. Region Sports-Car Club, Inc., 35 Colo.App. 73, 82, 582 P.2d 372, 378 (1974)).

%49 "An actor may be held liable for a plaintiffs injury where the actor was negligent and his negligence constituted a substantial factor in causing plaintiff's injury even where the actor did not and could not foresee the precise manner in which the injury would come about." Webb v. Dessert Seed Co., 718 P.2d 1057, 1062-68 (Colo.1986). And an intervening tortious act of a third party "is not a superseding. cause immunizing the defendant from liability, if it is reasonably foreseeable." Ekberg v. Greene, 196 Colo. 494, 496-97, 588 P.2d 375, 376 (1978); compare Estate of Newton v. McNew, 698 P.2d 835, 887 (Colo.App.1984) (jury could infer foreseeability of intervening event-children spread a fire by playing with embers that construction workers failed to extinguish), with Walcott v. Total Petroleum, Inc., 964 P.2d 609, 612 (Colo.App.1998) ("risk that a purchaser would intentionally throw gasoline on a victim and set the victim on fire was not reasonably foreseeable").

{50 Proximate cause may be found where the negligent actor sets in motion a course of events. In Leppke v. Segura, 632 P.2d 1057, 1059 (Colo. for example, the division held that, when the defendant encountered an intoxicated driver on the side of the road at night and jump-started his car, "a finder of fact could conclude that, by jump-starting an automobile for an obviously drunken driver, thus giving him mobility which otherwise he would not have had, one or both of the defendants set into motion a force involving an unreasonable risk of harm to others ... [warranting] a jury determination of breach of duty." See also Estate of Newton (deceased suffered heart attack while fighting fire caused when child "picked up a piece of paper which burned his fingers causing him to throw the paper into the air. The wind blew the paper to a fence separating the construction site from property owned by [deceased] where some weeds and a storage shed caught fire").

1 51 Here, according to the record on summary judgment, the Westin's personnel were told by at least one member of Groh's group that they were too drunk to drive. The jury could find it reasonably foreseeable that, after being evicted and denied the opportunity to wait in the lobby for a taxi, Groh would try to get home by ear, either driving herself or riding with one of her companions; the driver would encounter a slow-moving vehicle or other hazardous situation; and the driver would be unable to avoid the hazard because of intoxication.

52 Thus, the jury could conclude that the Westin's acts or omissions set in motion the chain of events that led to Groh's injuries. Because the pre-eviction dialogue included a specific reference to driving after drinking, and the questions-"What do you want us to do? Where are we supposed to go?"-this inference does not depend on evidence, if any, that before the eviction, the Westin knew Groh had driven to the hotel and parked in the space below, which was connected to the lobby by an elevator.

153 We disagree with the dissent that proximate cause can be resolved as a matter of law because the collision with a slow-moving vehicle occurred fifteen miles from the hotel. While on different facts lack of proximity might be a litmus test, here that analysis does not warrant taking proximate cause away from the jury because the accident occurred within the distance separating the hotel and Groh's residence, the intended destination.

IV. Breach of Contract

{54 Groh also contends the trial court erred in ruling, as a matter of law, that she breached her contract with the Westin. She contends the Westin waived any right to claim that she breached its rental contract when she and her group checked into the hotel and the Westin provided her three keys. She has provided no authority, however, and we have found none in Colorado, which indicates that the Westin waived its rights with regard to any persons above that number.

V. Conclusion

«[ 55 The summary judgment is reversed in part and the case is remanded for further proceedings, limited to Groh's negligence claim. In all other respects, it is affirmed.

JUDGE VOGT ^* concurs. JUDGE FURMAN concurs in part and dissents in part.

1 . This witness also testified during the deposition, "And I remember wearing what I was wearing, I was freezing."

2 . But see' Wright v. Webb, 234 Va. 527, 362 $.E.2d 919, 922 (1987) (declining to apply common carrier law to ejection of a business invitee). However, because of the special relationship that exists between an innkeeper and its guests, a guest is not merely a business invitee. See Whit-lock, 744 P.2d at 58.

3 . According to the court in Hoff, "the dram shop statutes do not supersede all common law lfability of bar owners." 613 F.Supp.2d at 1154. As the Harris court explained, although the "Dram Shop Act is the exclusive remedy against tavern owners and operators for injuries caused by an intoxicated person or in consequence of intoxication," the plaintiff's claims were proper under common law for negligence in the eviction. Thus, "[alithough plaintiff alleged in the complaint that defendants sold and supplied intoxicating liquor to the decedent causing decedent to become unconscious, it is not the act that allegedly resulted in decedent's death." 106 Ill.Dec. 824, 506 N.E.2d at 626. Here, as in Hoff and Harris, the basis for the Westin's liability is unreasonableness in evicting Groh, given her intoxication and other factors, not its having served her alcoholic beverages.

4 . This examination also explains our belief that the dissent has conflated duty, standard of conduct, and proximate cause.

5 . In Taco Bell, 744 P.2d at 49, the court identified the following measures to discourage or deal with robberies: "making sure the restaurant is well illuminated, installing highly visible video cameras, keeping small amounts of cash in the registers, posting signs notifying potential robbers of the small amount of cash kept on the premises, training employees in methods for dealing with in-process robberies, and locking non-public entrances during nighttime hours."

6 . Since only Groh is a party to this action, we need not decide whether the Westin would have any duty to allow any other member of the group to remain.

7 . The record includes evidence of procedure manuals and other training activities used by the Westin in educating employees on how to deal with intoxicated guests. The record also includes evidence that such practices were the standard in the industry.

8 . The conclusion obviates the need to address Groh's reliance on Justus, 725 P.2d 767, for the proposition that a factual question exists as to whether the Westin assumed a duty of care to Groh through its advertisements and internal training documents.