Groh v. Westin Operator, LLC

JUDGE FURMAN

concurring in part and dissenting in part.

156 I respectfully dissent from that portion of the majority's opinion that reverses the district court's grant of summary judgment. In all other respects, I concur.

57 The majority holds that a hotel has a duty to act reasonably in evicting a guest. I take no issue with such a premise. In adopting Groh's arguments, however, the majority concludes that it is proper to reverse summary judgment in this case because the Wes-tin acted unreasonably during the eviction, which was, therefore, a contributory cause of Groh's injuries. In my opinion, as a matter of law, the facts of this case do not support such a conclusion.

158 I begin my analysis by discussing what happened after the eviction. Onee outside the Westin, Groh used her cell phone to call her brother and inform him of the situation; he advised her to take a taxi home. During this time, one of Groh's friends was looking for a taxi. He asked the first security guard if the group could wait in the lobby until a cab was procured because of the cold temperatures outside, but the guard crossed his arms and said, "No, get the f* * * out of here."

T59 Groh and the rest of the group then walked along the front of the Westin's building and down a ramp into a parking garage. As Groh and the group walked, they passed several waiting cabs and a taxi stand, but Angela Reed (who had joined the group earlier in the evening shortly after they had checked in) offered to drive. Groh then gave Reed the keys to her PT Cruiser-a vehicle with five seatbelts. Groh and the group (seven persons in all) got into the automobile, and Reed got behind the wheel. Reed was the only person in the car wearing a seatbelt.

60 Around 4:00 a.m., on northbound I-225, Reed encountered a vehicle that was driving well below the speed limit because it was towing a vehicle with a flat tire. Without braking, she crashed into this vehicle. One passenger died; the others sustained injuries, and Groh sustained severe injuries resulting in a persistent vegetative state. (A toxicology expert later estimated that Reed's blood aleohol content (BAC) was between 0.170 and 0.222 at the time of the accident. The legal BAC limit for driving under the influence is .08.) Reed was subsequently charged with several felonies associated with her driving Groh's vehicle while intoxicated.

T61 As these facts show, it was Groh's actions, in deciding to ride as an unrestrained passenger in the backseat of a car driven by her intoxicated friend instead of taking an available taxi-and in choosing to do so well after she was evicted from the Westin-that gave rise to her risk of harm and subsequent injuries. I conclude a reasonable jury could not have found that the Westin could foresee that evicting Groh would give rise to such a risk of harm. Thus, there should be no additional duty imposed on the Westin. Accordingly, I would affirm the district court's summary judgment.

*484162 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. Keénam, 731 P.2d 708, 712 (Colo.1987). "In considering whether the moving party has ultimately established its entitlement to summary judgment, we must grant the non-moving party all favorable inferences that reasonably may be drawn from uncontested facts and resolve any doubt as to whether a triable issue of material fact exists against the moving party." Ludlow v. Gibbons, 310 P.3d 130, 135 (Colo.App.2011) (cert. granted July 30, 2012) (citing Lombard v. Colo. Outdoor Educ. Ctr., Inc., 187 P.3d 565, 570 (Colo.2008)).

T 63 Groh contends the district court erred in granting summary judgment in favor of the Westin. She contends that triable issues of material fact exist as to whether the Wes-tin breached its duty of care to her by acting unreasonably during the eviction, basing her position on the following: (1) the innkeeper-guest special relationship; and (2) the assumed duty of care doctrine. I examine each in turn.

I. The Innkeeper-Guest Special Relationship

164 Special relationships that have been recognized by various courts for the purpose of imposing a duty of care include the innkeeper-guest relationship. University of Denver v. Whitlock, 744 P.2d 54, 58 (Colo. 1987) (citing Restatement (Second) of Torts § 314A); see also Allen v. Ramada Inn, Inc., 778 P.2d 291, 293 (Colo.App.1989).

I 65 The innkeeper-guest special relationship does not give rise to the duty urged by Groh and adopted by the majority because (1) her eviction ended the innkeeper-guest relationship and, thus, cannot serve as a basis to impose a duty in this case, and (2) the seope of an innkeeper's duty of care during an eviction is not so broad as to encompass a duty to protect Groh against any injury she might sustain subsequent to the eviction-including injuries sustained nearly an hour after eviction as an unrestrained passenger in a car some fifteen miles from the Westin.

A. Eviction Ends the Innkeeper Guest Relationship

T 66 The majority concludes that the summary judgment should be reversed because the Westin could have told 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." At that point, however, Groh was no longer a guest of the Westin because she had already been evicted.

167 When an individual ceases to be a guest of a hotel, the special relationship that gives rise to the duty of reasonable care is generally terminated. See Murray v. Marshall, 9 Colo. 482, 484, 13 P. 589, 590 (1887); see also Restatement $ 314A erat. c. An individual ceases to be a guest onee evicted. See, eg., Billingsley v. Stockmen's Hotel, Inc., 111 Nev. 1033, 901 P.2d 141, 145 (1995).

168 The statement in New Albany Hotel Co. v. Dingman, 66 Colo. 306, 308-09, 181 P. 126, 127 (1919), that an innkeeper's liability does not "cease at the very instant a guest leaves the inn," does not require a hotel to continue the innkeeper-guest relationship beyond eviction. In that case, and other cases addressing the issue, the extraordinary Hability of the innkeeper continued because a guest's baggage had been left with the hotel, with the consent of a hotel employee and his understanding that the baggage would be removed within a reasonable time. See id. (baggage left with hotel's "knowledge and consent"); see also Murray, 9 Colo. at 485, 13 P. at 590 ("The baggage was left with his consent. ..."}.

T 69 Accordingly, an innkeeper's consent to keep a guest's baggage after the innkeeper-guest relationship has ended extends the innkeeper's liability for the value of the bags and only for a reasonable time until the bags are removed. See New Albany Hotel Co., 66 Colo. at 308-09, 181 P. at 127. Thus, absent such consent and understanding, Colorado law does not extend an innkeeper's liability beyond the actual eviction. See id.

*485T 70 It is undisputed that Groh was a guest of the Westin on the evening in question. But she did not retain that status indefinitely; Groh was lawfully evicted. I agree with the majority that the Westin had a right to terminate its contract with Groh after discovering as many as eleven rowdy people in her hotel room. The Westin exercised that right and evicted Groh, and there is nothing in the record to suggest that it consented to any request made by Groh prior to her eviction that would have extended its liability as an innkeeper beyond the eviction. See Murray, 9 Colo. at 484-85, 13 P. at 590. Thus, onee Groh was evicted, the innkeeper-guest relationship terminated, and the Westin had no duty to let her or her companions, who were not guests, back into the hotel at that point-assuming she even wanted to reenter. See id.; see also Billingsley, 901 P.2d at 145.

T71 Groh also seeks to hold the Westin responsible for her injuries by contending that the Westin "failed to exercise a minimum level of due care" concerning her "health or safety." Specifically, Groh's fourth amended complaint alleged that the Westin failed to take affirmative action to "determine if it was safe for [Groh] to leave [her] hotel room, if there was any alternative shelter available for [Groh] in the proximity of its hotel, or if it was safe for [Groh] to drive home." Groh also contends the Westin could have called the police, but did not.

1 72 In my view, Groh's assertions that the Westin failed to take affirmative steps to protect her in her intoxicated state are appropriately characterized as nonfeasance rather than misfeasance. See Whitlock, 744 P.2d at 57-59. Nonfeasance exists in cases of "pure failure to act," where the actor may have "had it in its power to take reasonable action to eliminate the peril but had no part in creating it." Id. at 59 n.4. The Westin did not contribute to Groh's intoxicated condition and had no part in creating any environmental peril which might have posed a risk to Groh outside the hotel following the eviction.

173 In situations involving nonfeasance, our supreme court has noted that "the existence of a duty has been recognized only during the last century in situations involving a limited group of special relationships between parties." Id. at 58. Whitlock made clear that, where negligence based on non-feasance is alleged, "[if ... a duty is to be recognized, it must be grounded on a special relationship" between the parties, id. at 59, or a special situation, id. at 58 n.8.

T74 As I previously explained, the Wes-tin's decision to evict Groh ended the innkeeper-guest special relationship. Thus, the Westin did not owe Groh a duty based on the special relationship between the parties after that point because, once she was lawfully evicted, the special relationship ended, thereby precluding liability for nonfeasance.

B. Innkeeper's Duty of Care for Negligent Eviction

175 Apparently, recognizing that any further analysis must be based on misfeasance, the majority focuses on the affirmative actions of the Westin staff that occurred during the process of the eviction. In so doing, the majority's analysis focuses on whether the Westin performed a reasonable eviction and, as such, apparently recognizes the tort of negligent eviction. I do not disagree that a hotel must evict its guests in a reasonable manner. I cannot agree with the majority's ultimate conclusion, however, for two reasons: (1) I disagree that the scope of a hotel's duty to evict in a reasonable manner is so broad; and (2) I conclude, as a matter of law, that the Westin evicted in a reasonable manner.

1. The Scope of an Innkeeper's Duty Is Not So Broad

176 I first believe that the scope of an innkeeper's duty to effect a reasonable eviction is not so broad as to encompass a duty to protect against speculative injuries which may occur subsequent to eviction-and miles from the hotel.

177 Colorado appellate courts have previously considered the seope of the duty that innkeepers owe to their guests. In New Albany Hotel Co., 66 Colo. at 308-09, 181 P. at 127-28, our supreme court established that innkeepers owe guests a duty to safeguard the guests' property. In Rudolph v. Elder, 105 Colo. 105, 110, 95 P.2d 827, 830 (1989), *486our supreme court held that it was "unquestioned as a matter of law that a hotel keeper's duty to keep his premises reasonably] safe for the use of his patrons extends to all portions of the premises to which a guest may be reasonably expected to go." Finally, in Allen, TTS P.2d at 298, a division of this court noted that an "innkeeper has a duty to use reasonable care to protect its guests from third persons."

T78 Taken together, these cases demonstrate that the scope of an innkeeper's duty toward its guests includes protecting them from injuries which may occur at the hotel. Before today, no Colorado appellate court has considered whether an innkeeper is under a duty to protect an evicted guest from speculative injuries that may occur subsequent to eviction and miles from the hotel's premises. For the reasons stated below, I see no adequate reason to depart from our firmly established precedent and expand the seope of the innkeeper's liability to encompass such a duty.

179 Defining the scope of an innkeeper's duty of care to include a duty to protect its guest while on the hotel's premises is a logical limit to its duty of care. A hotel has the right and ability to control its premises. It can take action to ensure that its premises are safe for its patrons. It can also, if necessary, take measures to mitigate the risk of reasonably foreseeable criminal acts by third persons. When accidents occur subsequent to eviction beyond the hotel's premises, however, the innkeeper's ability to mitigate potential harm is severely limited. See, eg., Curningham v. Braum's Ice Cream & Dairy Stores, 276 Kan. 883, 80 P.3d 35, 39 (2003) ("'The ... proprietor will have no control over the premises where the accident occurs, no ability or right to remedy any defect, and no control over the actions or risks undertaken by his customer.") (quoting Mostert v. CBL & Assocs., 741 P.2d 1090, 1104 (Wyo. 1987) (Cardine, J., dissenting)). And while it is true that hotels have the ability to control whether an evicted guest can remain on the premises, or later reenter, it makes little practical sense to justify expanding the scope of the innkeeper's duty to evicted guests on these grounds.

1 80 Indeed, other jurisdictions which have examined reasonable care during hotel evie-tions have concluded that a hotel is within its rights to evict a patron from the premises provided no more force is used than is necessary. See, eg., Rodrigues v. Primadonna Co., 125 Nev. 578, 216 P.3d 793, 796 (2009). And neither case cited by the majority as "well-reasoned" for the principle that hotels have a duty to effectuate a reasonable evietion delineated such an expansive scope of duty as that proposed by the majority. See id. at 799 (scope of duty limited to a prohibition against unreasonable force in ejecting patron, noting a hotel has no 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"); see also Raider v. Dixie Inn, 198 Ky. 152, 248 S.W. 229, 230 (1928)(where alleged injury occurred during eviction, court considered whether the hotel employed unlawful means to exelude the patron).

«[ 81 A brief analysis of other factors used to determine the scope of a common law duty, see, eg., Whitlock, 744 P2d at 57, further supports my conclusion that the scope of an innkeeper's duty should not be expanded under the facts presented here. The risk involved in requiring a former guest to leave the hotel under the circumstances presented here is that the guest may injure herself or be injured off the premises. The foreseeability or likelihood of such injury "requires excessive speculation ... here," Casebolt v. Cowan, 829 P.2d 352, 368 (Colo.1992) (Rovira, C.J., dissenting), where Groh was injured, not by her own drunk driving or by the cold weather, but several miles away from the hotel as a passenger-who was not wearing a seathelt-in a car accident.

1 82 In this case, the Westin had no reason to foresee that evicting Groh under the circumstances presented here would result in an unreasonable risk of harm. Even assuming Groh was actually intoxicated at the time of eviction, Groh did not appear intoxicated to Westin personnel. Neither did the Westin know that Groh's vehicle was parked in the adjacent parking garage. Further, any analysis of whether it was reasonably foreseeable that the environment outside the hotel posed *487a risk to Groh is simply an exercise in speculation and, I believe, not relevant. The parties never argued that the Westin's duty to Groh turned on the "environment" outside the hotel and the appellate record is essentially devoid of facts on this issue.

183 Considering the social utility of the Westin's activities, it is very useful for hotels to eviet guests that violate their policies without having to consider every nuance which could possibly lead to harm outside the hotel's walls. Moreover, allowing hotels to perform evictions without having to involve the police in every situation, which the majority suggests might avoid breach of duty, also promotes efficiency-especially where, as in this case, the facts do not suggest that Groh herself was assaultive or threatening.

{84 Finally, in my view, placing the type of duty on hotels that Groh urges would be an excessive burden. The majority argues that the burden on innkeepers to carry out this duty would be "relatively inexpensive." This assertion is factually unsupported by the record. Moreover, imposing such a duty to an evicted former guest could directly contravene the Westin's clearly established duty to use reasonable care to protect its guests from third persons on its premises. See Allen, TiS P.2d at 298 ("[The innkeeper has a duty to use reasonable care to protect its guests from third persons.").

1 85 While a hotel may be able to reconcile these competing duties in some situations, such as the majority suggests a jury might find here, this would certainly not be the case in all situations. See, e.g., Rodrigues, 216 P.3d at 796 (evicted guest engaged in disruptive behavior on premises, including assaulting another guest). Where a hotel has the ability to prevent such criminal acts by simply evicting the offenders peacefully, I believe it would be an excessive burden to impose a duty that would prevent hotels from doing so.

2. The Westin Did Not Eviect Groh in an Unreasonable Manner

186 Next, the majority concludes that summary judgment was not appropriate because "the disputed facts and favorable inferences ... preclude finding, as a matter of law," that the Westin evicted Groh "in a reasonable manner." I respectfully disagree.

87 As noted, I do not dispute that hotels must act reasonably when evicting (both guests and trespassers alike) by not using unreasonable force. See Rodriguez, 216 P.3d at 796. Because it is undisputed that the Westin did not use physical force in evicting Groh, I believe it could not have acted unreasonably in doing so.

[88 Further, I disagree with the majority's conclusion that the Westin was unreasonable when evicting Groh because it evicted her "into foreseeably dangerous circumstances resulting from either [Groh's] condition or the environment." There is simply no record evidence to support such an inference.

$89 The majority contends that Groh's intoxicated condition (and that of her companions) created a foreseeably dangerous condition because intoxicated individuals, as a class, suffer from impairment of both physical abilities and judgment. Despite the fact that I disagree with the premise that voluntary intoxication of an evicted guest should impose additional duties on a hotel when evicting, the majority's conclusion relies on a generalization of all intoxicated persons without taking into account the undisputed facts in this case. The majority has not demonstrated how the record supports the conclusion that Groh herself was suffering from such impairment. Indeed, the undisputed facts in the record indicate that Groh did not appear intoxicated to Westin personnel, she called her brother and carried on a rational conversation with him, and even debated with the hotel security about her options short of eviction.

190 My conclusion is the same when the facts surrounding the environment, viewed in the light most favorable to Groh, are analyzed. The majority speculates that the late hour and winter season might have exposed (Groh to a foreseeable risk of injury. Even if this was relevant, however, this inference is unsupported by record evidence; Groh did not introduce evidence regarding the temperature outside, or whether she was even cold.

191 Because, in this summary judgment case, the majority is basing much of its deci*488sion on facts and arguments never raised by the parties, and because I believe the undisputed facts raised by the parties do not show the Westin evicted Groh into foreseeably dangerous circumstances, I conclude, as a matter of law, that the Westin was not unreasonable in its eviction of Groh.

IIL Assumption of Duty

T 92 Groh also contends that the Westin is responsible for her injuries under the assumed duty of care doctrine. See Whitlock, 744 P.2d at 58 n.8 (citing Restatement § 314 emt. a). Under this doctrine, "a party may assume duties of care by voluntarily undertaking to render a service." Jefferson County Sch. Dist. R-1 v. Justus, 725 P.2d 767, 770 (Colo.1986); see also Wark v. United States, 269 F.3d 1185, 1189 (10th Cir.2001).

€93 For the doctrine to apply, however, Groh must first show that the Westin "undertook to render a service that was reasonably calculated to prevent the type of harm that befell [her]." Jefferson County Sch. Dist. R-1, 725 P.2d at 771. Groh must then show either that she "relied" on the Westin "to perform the service" or that the Westin's "undertaking increased [her] risk." Id. The seope of this assumed duty "must be limited to the performance with due care of that service undertaken." Id. at 772 n.5. Liability under a voluntarily assumed duty, however, "can obviously be no broader than the undertaking actually assumed." Id.

T 94 Groh contends the Westin assumed a duty "to protect [her] while [she was] intoxicated and to prevent [her] from driving while intoxicated." Although it was undisputed that Groh was not driving, she nevertheless argues that the Westin assumed a duty to protect her from her intoxicated friend's driving because of (1) the Westin's advertisements that the hotel was in close proximity to bars and restaurants downtown, (2) the Westin's internal training documents, which show that it generally pays for alternative transportation in order to prevent intoxicated guests from driving, and (8) deposition testimony of the Westin's employees admitting that the Westin will pay for a taxi.

I 95 I conclude, however, that the record does not contain evidence demonstrating that the seope of this assumed duty is so broad as to include preventing a former guest from being injured while riding as a passenger without a seatbelt in her car driven by an intoxicated friend. Indeed, it was Groh's action of choosing to become a passenger in a car driven by an intoxicated friend that created and gave rise to Groh's risk and subsequent injury. See, e.g., Smith v. City & County of Denver, 695 P.2d 770, 771-72 (Colo.App.1984), aff'd, 726 P.2d 1125 (Colo.1986). Simply put, Groh has provided no evidence demonstrating the Westin undertook a service that was reasonably calculated to prevent her from being injured as a passenger in a car driven by a third party.

€96 Additionally, as noted, Groh must show "either that' [she] relied on the [Westin] to perform the service or that [the Westin's] undertaking increased [her] risk." Jefferson County Sch. Dist R-1, 725 P2d at TTL Groh has not presented any evidence that she relied on the Westin's advertisements or training documents. Indeed, she has not presented any evidence that she even knew of their existence at the time she checked into the hotel room.

197 Moreover, there is also no evidence that the Westin's undertaking placed Groh in a more vulnerable position than she would have been in had the Westin taken no action at all. See id. at TT2. I point out, however, that following the eviction, Groh and her group left on foot. She had a conversation with her brother who advised her to take a cab. She and the group walked past several waiting cabs and a taxi stand as they left the premises. She did not drive away from the Westin. Instead, she entrusted her vehicle to a member of her group with whom the Westin had no contact and no legal relationship whatsoever.

198 To the extent that Groh argues that protecting against the injuries she received while riding as an unrestrained passenger was within the seope of the alleged assumed duty of the Westin, the record shows that Groh and her group declined the alternative transportation and instead made a subsequent series of poor choices which led to the accident. The Westin had no mechanism to *489foree the group to take alternative transportation even if its employees had reason to suspect that the entire group was intoxicated-a suspicion which, the record reveals, did not exist.

T99 Because Groh has not cited any evidence indicating that the Westin "either through its affirmative acts or through a promise to act, undertook to render a service that was reasonably calculated to prevent the type of harm that befell [her]"-that she was injured in an accident while riding without a seatbelt as a passenger in a car driven by an intoxicated driver-I conclude the Westin did not assume a duty of care toward Groh. Id. at TTL

1100 Accordingly, I would affirm the district court's grant of summary judgment.

III. Proximate Cause

1101 In the alternative, I conclude summary judgment may also be affirmed because no reasonable jury could conclude that the Westin's breach was the proximate cause of Groh's injuries.

1 102 Before turning to the merits of this issue, I first address whether the issue of proximate cause is properly before us on appeal. The district court did not reach the issue of proximate cause in awarding summary judgment in favor of the Westin, despite its being raised and briefed by the parties, because the court concluded the Westin did not owe a duty to Groh. Groh did not raise the issue of proximate cause on appeal. The Westin raised the issue but did not file a cross-appeal in this matter. Nonetheless, I conclude reaching the issue is proper.

1103 'Without filing a cross-appeal, "an appellee may ... raise arguments in support of his judgment which would not increase his rights under the judgment, whether or not the trial court has ruled on those arguments." Blocker Exploration Co. v. Frontie-Ezploration, Inc., 740 P.2d 983, 989 (Colo.1987) (quoting City of Delta v. Thompson, 37 Colo.App. 205, 208, 548 P.2d 1292, 1294-95 (1975)). Because the Westin's proximate cause argument would support the district court's grant of summary judgment as to Groh's negligence claim, without increasing the Westin's rights under the judgment, I consider it now, despite the Westin's failure to file a cross-appeal. See id.

104 To prevail on a claim of negligence, just as a plaintiff must show that a defendant owed her a duty, "a plaintiff [also] must show that the defendant's alleged negligence proximately cause the claimed injury." Reigel v. SavaSenior Care L.L.C., 292 P.3d 977, 985 (Colo. App.2011).

1 105 "[The question of proximate cause is ordinarily one of fact for the jury...." Walcott v. Total Petroleum, Inc., 964 P.2d 609, 612 (Colo.App.1998) (citing Samuelson v. Chutich, 187 Colo. 155, 529 P.2d 631 (1974)). It may be decided as a question of law, however, when reasonable minds could draw but one inference from the evidence. Id.

[ 106 The majority concludes that "[pJroxi-mate cause may be found where the negligent actor sets in motion a course of events." This is not the case, however, when the course of events is disrupted by an independent intervening cause.

A defendant's conduct is not a cause of another's injuries if, in order to bring about such injuries, it was necessary that the conduct combine or join with an intervening cause which also contributed to cause the injuries, but which intervening cause would not have been reasonably foreseen by a reasonably careful person under the cireumstances.

Moore v. Western Forge Corp., 192 P.3d 427, 436 (Colo. App.2007) (quoting Scharrel v. Wal-Mart Stores, Inc., 949 P.2d 89, 93 (Colo.App.1997)).

1107 Apparently acknowledging the law on intervening cause, the majority contends that a jury could find it reasonably foreseeable that the subsequent events would unfold as they did because "the Westin's personnel were told by at least one member of Groh's group that they were too drunk to drive." I do not think that this fact could lead a reasonable jury to conclude that the Westin knew, or should have known, Groh or her companions would, in fact, do the opposite, attempt to drive drunk, and then later en*490counter a slow-moving vehicle on the highway.

{108 Instead, I conclude no reasonable jury could find the Westin's acts or failure to act caused Groh to be injured in the car accident. Another look at the chain of events illustrates my point:

e As conceded for the purposes of summary judgment, the Westin evicted Groh;
@The Westin provided a taxi stand and several taxis were parked outside when Groh exited the hotel;
@ Members of Groh's group told the Wes-tin they were seeking a cab;
© Angela Reed volunteered outside of the Westin to drive Groh home;
® (iroh chose not to take a taxi and, instead, chose to entrust her vehicle to Reed;
® Groh chose to board her PT Cruiser, a vehicle with five seat belts, with six others in such a way as to prevent her from wearing a seat belt;
@The exit to the parking structure was barricaded, and Reed drove around the barricade to exit;
® Reed drove the vehicle several miles without incident;
® Reed then came upon a vehicle that was driving approximately eight miles per hour on the highway;
@The slow-moving vehicle was following behind a vehicle being driven with a flat tire;
® Reed also "wasn't paying attention" and was "watching Groh and [a male companion] in the rearview mirror at the time of the crash";
® Approximately an hour after being evict, ed from the Westin, Reed collided with the slow-moving vehicle and Groh was injured as a result.

109 The result in Dagen v. Marriott International, Inc., (N.D.N.Y. No. 1:05CV 1598, Apr. 16, 2008) (unpublished memorandum-decision and order), a federal district court case on which the majority extensively relies, reinforces my point. There, the court denied the hotel's motion to dismiss for failure to state a claim under Fed.R.Civ.P. 12(b)(6) but later granted the hotel's motion for summary judgment in part based on a lack of proximate cause. Id. at *6.

1110 After the plaintiff was evicted from his hotel, he boarded his vehicle and drove approximately ninety miles. Id. at *2. The plaintiff was injured when he reached a slippery part of the road, lost control, and skidded off the exit ramp, hitting a tree. Id. It was undisputed that the plaintiff was traveling at an unsafe speed for the road conditions. Id. Considering these facts, the court explained:

Although it is true that "but for" his evietion from the hotel, Plaintiff would not have been on the exit ramp that night, the eviction merely furnished the condition or occasion for the occurrence of the accident. Defendants' eviction of Plaintiff cannot be considered to be the proximate cause of Plaintiff's tires losing grip with the road and his skidding off the exit ramp three hours later.... Plaintiff's injuries were caused by a slick spot on the exit ramp which he approached at an unsafe speed, and which caused him to lose control of his car. Any alleged negligence by the Defendants was not a proximate cause of his injuries.

Id. at *6.

1111 Although it may be true that "but for" her eviction from the Westin, Groh may not have been on the highway that night, the eviction did not cause Groh's accident. Groh was injured as a passenger in a car accident after Reed, who was driving while intoxicated and not paying attention to the road, encountered a vehicle driving well under the speed limit and collided with that vehicle. No reasonably careful person under the cireum-stances would have reasonably foreseen that such events would have unfolded once Groh left the hotel. See Moore, 192 P.3d at 486. Accordingly, under the facts presented here, I conclude, as a matter of law, that the Westin's acts were not the legal cause of Groh's injuries See Walcott, 964 P.2d at 612. Thus, I would also affirm summary judgment on these grounds. See, eg., New-flower Market, Inc. v. Cook, 229 P.3d 1058, 1061 (Colo.App.2010) ("If the trial court reached the correct result, we may affirm its *491determination on different grounds.") (citing Barham v. Scalia, 928 P.2d 1381 (Colo.App.1996)).

IV. Conclusion

"[ 112 I conclude by expressing my concern over the implications of the opinion announced today. This was an undeniably tragic case. The majority's imposition of a duty on the Westin under the facts of this case, however, is a great expansion of tort duty in Colorado. Hotels will now have an expanded duty to protect evicted guests, and I fail to see any distinction in the majority's reasoning which will prohibit such a duty from being expanded to any business owner. While the majority states that hotel guests are not merely invitees, the majority provides no logical distinction why the opinion must be limited to its facts or apply only to hotels.

{113 The majority has recognized a duty so broad as to encompass all potential injuries an evicted former guest (who may or not be intoxicated) may suffer after leaving the premises. If Groh and her group had used a taxi that was later in an accident, would the Westin still be Hable for those injuries?

114 Additionally, because the finding of duty is essentially an expression of policy, I believe the majority's opinion frustrates the clear public policy statement of the legislature that "where an individual makes a deliberate choice to drink alcohol, that individual should also be responsible if that choice results in negligence." Casebolt, 829 P.2d at 367-68 (Rovira, C.J., dissenting) (citing Charlton v. Kimata, 815 P.2d 946, 951 (Colo.1991)). Today, the majority states that Groh's choice to drink alcohol provides her with additional protection, and the Westin additional liability,

«because there was a possibility she could have been injured by her actions while intoxicated. I believe that this expression of policy is in contravention of public policy expressed by our. legislature in the Dramshop Act, and I note that other jurisdictions with similar statutes have come to the same conclusion when presented with similar facts. See, eg., Rodrigues, 216 P.3d at 799 ("[In accordance with the principles underlying Nevada's rejection of dram-shop liability, we conclude ... the hotel proprietor is not required to consider a patron's level of intoxication in order to prevent speculative injuries that could occur off the proprietor's premises.").

1 115 For these reasons, I respectfully dissent.