Kudlacik v. Johnny's Shawnee, Inc.

440 P.3d 576

Jeffrey D. KUDLACIK, Appellant,

v.JOHNNY'S SHAWNEE, INC., and Barley's Ltd., Appellees.

No. 115,869

Supreme Court of Kansas.

Opinion filed May 10, 2019

David R. Morantz, of Shamberg, Johnson & Bergman, Chartered, of Kansas City, Missouri, argued the cause, and Lynn R. Johnson and Paige L. McCreary, of the same firm, and Vito C. Barbieri, of Barbieri & Associates, L.C., of Shawnee, were with him on the briefs for appellant.

John J. Bursch, of Bursch Law P.L.L.C., of Caledonia, Michigan, argued the cause, and John J. Fogarty and Theresa Shean Hall, of Manz Swanson Hall Fogarty & Gellis, PC, of Kansas City, Missouri, were on the briefs for appellee Johnny's Shawnee, Inc.

Todd N. Thompson, of Thompson Warner, P.A., of Lawrence, argued the cause, and Sarah E. Warner of the same firm, and Erik Henry Nelson and Bradley R. Hansmann, of Brown & James, P.C., of Kansas City, Missouri, were with him on the briefs for appellee Barley's Ltd.

Richard W. James, of DeVaughn James Injury Lawyers, of Wichita, and Blake A. Shuart, of Hutton & Hutton Law Firm, L.L.C., of Wichita, were on the brief for amicus curiae Mothers Against Drunk Driving.

Will B. Wohlford, of Morris, Laing, Evans, Brock & Kennedy, Chartered, of Wichita, was on the brief for amicus curiae Kansas Trial Lawyers Association.

J. Philip Davidson and Paul J. Skolaut, of Hinkle Law Firm L.L.C., of Wichita, were on the brief for amicus curiae Kansas Restaurant and Hospitality Association.

Lyndon W. Vix and Brian E. Vanorsby, of Fleeson, Gooing, Coulson & Kitch, L.L.C., of Wichita, were on the brief for amicus curiae Kansas Association of Defense Counsel.

Jason R. Lane and Joseph Uhlman, legal intern, of Newton, were on the brief for amicus curiae Kansas Emergency Medical Services Association.

The opinion of the court was delivered by Biles, J.:

Jeffrey D. Kudlacik suffered serious injuries in a two-vehicle collision with a drunk driver. He asks us to reconsider longstanding Kansas caselaw insulating commercial drinking establishments from liability for torts committed by their intoxicated patrons. We have done so and today reaffirm the common law under the principles of stare decisis. We hold the district court properly dismissed his lawsuit.

FACTUAL AND PROCEDURAL BACKGROUND

Michael Smith ran a red light at high speed through a Johnson County intersection and collided with Kudlacik's vehicle. Smith's blood alcohol content was 0.179. Kudlacik suffered extensive injuries.

Before the collision, Smith consumed alcoholic beverages at Johnny's Shawnee and Barley's Bar. Kudlacik sued Johnny's and Barley's for his injuries, alleging the bartenders continued to serve Smith even after they knew or should have known he was incapacitated by alcohol and a threat to himself and others. Kudlacik claimed the bartenders were either negligent or aided and abetted Smith's tortious conduct.

Johnny's and Barley's moved to dismiss the suit for failure to state a claim upon which relief can be granted under K.S.A. 2018 Supp. 60-212(b)(6). The district court agreed by quoting " ‘Kansas does not have a third-party action against vendors or dispensers of alcoholic beverages for harm done to the third party person by the person intoxicated from imbibing such beverages’ " from Bland v. Scott , 279 Kan. 962, 973-94, 112 P.3d 941 (2005). Kudlacik appealed and the Court of Appeals summarily affirmed.

We granted Kudlacik's timely petition for review. Jurisdiction is proper. See K.S.A. 20-3018(b) (providing for petitions for review of Court of Appeals decisions); K.S.A. 60-2101(b) (Supreme Court has jurisdiction to review Court of Appeals decisions upon petition for review).

STANDARD OF REVIEW

An appellate court reviews de novo whether a petition states a valid claim for relief. Steckline Communications, Inc. v. Journal Broadcast Group of KS, Inc. , 305 Kan. 761, 767, 388 P.3d 84 (2017).

"When a defendant uses K.S.A. 2015 Supp. 60-212(b)(6) to challenge the legal sufficiency of a claim, the court must decide the issue based only on the well-pled facts and allegations, which are generally drawn from the petition. Courts must resolve every factual dispute in the plaintiff's favor when determining whether the petition states any valid claim for relief. Dismissal is proper only when the allegations in the petition clearly demonstrate that the plaintiff does not have a claim. [Citation omitted.] Likewise, appellate courts reviewing a district court's decision to grant a motion to dismiss will assume as true the well-pled facts and any inferences reasonably drawn from them. If those facts and inferences state any claim upon which relief can be granted, dismissal is improper. [Citation omitted.]" 305 Kan. at 767-68, 388 P.3d 84.

NO CLAIM FOR NEGLIGENCE

In Kansas,

"At common law, and apart from statute, no redress exists against persons selling, giving or furnishing intoxicating liquor for resulting injuries or damages due to the acts of intoxicated persons, either on the theory that the dispensing of the liquor constituted a direct wrong or that it constituted actionable negligence. Since Kansas does not have a dram shop act, the common-law rule prevails in Kansas." Ling v. Jan's Liquors , 237 Kan. 629, Syl. ¶ 3, 703 P.2d 731 (1985).

Our court repeatedly followed this rule. See, e.g., Bland , 279 Kan. at 973-74, 112 P.3d 941 (holding no wrongful death action against university and fraternity for supplying alcohol to minor who killed plaintiff while driving drunk); Prime v. Beta Gamma Chapter of Pi Kappa Alpha , 273 Kan. 828, 837, 840, 47 P.3d 402 (2002) (holding no cause of action against college fraternity or its members for injuries to minor to whom members supplied alcohol); Mills v. City of Overland Park , 251 Kan. 434, 443, 837 P.2d 370 (1992) (holding no cause of action against vendor for minor patron's alcohol-related death); Fudge v. City of Kansas City , 239 Kan. 369, 375-76, 720 P.2d 1093 (1986) (holding no wrongful death action against commercial vendor that supplied liquor to drunken driver, and vendor's fault not to be compared with other tortfeasors'); Ling , 237 Kan. at 630, 703 P.2d 731 (no liability in personal injury action against out-of-state liquor store). Kudlacik asks us to revisit this precedent and consider the question anew.

"The doctrine of stare decisis maintains that once a point of law has been established by a court, it will generally be followed by the same court and all courts of lower rank in subsequent cases when the same legal issue is raised. A court of last resort will follow that rule of law unless clearly convinced it was originally erroneous or is no longer sound because of changing conditions and that more good than harm will come by departing from precedent. [Citation omitted.]" Miller v. Johnson , 295 Kan. 636, 653-54, 289 P.3d 1098 (2012).

Stare decisis " ‘promote[s] system-wide stability and continuity by ensuring the survival of decisions that have been previously approved by a court.’ " Crist v. Hunan Palace, Inc. , 277 Kan. 706, 715, 89 P.3d 573 (2004). Adhering to precedent is usually the wiser policy. Bergstrom v. Spears Manufacturing Co. , 289 Kan. 605, 613, 214 P.3d 676 (2009).

Kudlacik argues our common-law rule is outdated, creates an "inexplicable immunity" for alcohol vendors, and is bad public policy. These arguments have some merit but not enough to cause this court to upend the status quo. And even though we perceive some weakness with Ling 's initial rationale, we are not clearly convinced the decision itself was originally erroneous or is no longer sound because of changing conditions and that more good than harm will come if we depart from it.

In Ling , the court applied the common-law rule to hold a pedestrian failed to state a claim against a commercial liquor vendor for damages she alleged resulted from the vendor negligently supplying alcohol to a minor. 237 Kan. at 641, 703 P.2d 731. The court declined to depart from the common-law rule because the "declaration of public policy is normally the function of the legislative branch of government." 237 Kan. at 640, 703 P.2d 731.

The Ling court reviewed dram shop liability's history in this state. It observed Kansas had statutes permitting civil damages for dram shop claims from territorial days until the late 1940s. But when the Legislature enacted comprehensive liquor regulation in 1949, it repealed the dram shop law. Since then, the Legislature criminalized liquor sales to minors and incapacitated persons—including those incapacitated by liquor consumption—and declined to adopt dram shop legislation proposed in 1984 and 1985. 237 Kan. at 637-39, 703 P.2d 731.

The court reasoned the Legislature would have "re-created a civil cause of action in favor of those injured as a result of a violation of the liquor laws" if it had "intended for there to be a civil cause of action." 237 Kan. at 640, 703 P.2d 731. Accordingly, the court held permitting violations of the criminal statutes to establish negligence per se "would subvert the apparent legislative intention." 237 Kan. at 639, 703 P.2d 731. It also reasoned,

"Whether Kansas should abandon the old common-law rule and align itself with the new trend of cases which impose civil liability upon vendors of alcoholic beverages for the torts of their inebriated patrons depends ultimately upon what best serves the societal interest and need. Clearly, this is a matter of public policy which the legislature is best equipped to handle." 237 Kan. at 640, 703 P.2d 731.

To further justify its deference to the Legislature, the court noted " ‘[t]he imposition of a common law duty of care would create a situation rife with uncertainty,’ " including social hosts' potential liability—difficulties in recognizing intoxication and predicting patrons' conduct, apportioning liability among several vendors, and determining " ‘[t]he correct standard of care’ " and whether the tavern owner's liability should include the patron's intentional torts. 237 Kan. at 641, 703 P.2d...