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Kudlacik v. Johnny's Shawnee, Inc.

Supreme Court of Kansas

May 10, 2019

Jeffrey D. Kudlacik, Appellant,
v.
Johnny's Shawnee, Inc., and Barley's Ltd., Appellees.

         SYLLABUS BY THE COURT

         1. A court of last resort will follow the rule of law it established in its earlier cases unless clearly convinced the rule was originally erroneous or is no longer sound because of changing conditions and that more good than harm will come by departing from precedent. 2.

         2. At common law, no redress exists against persons selling, giving, or furnishing intoxicating liquor for resulting injuries or damages because of the acts of intoxicated persons, on the theory that the dispensing of the liquor constituted either a direct wrong or actionable negligence. Since Kansas has no dram shop act, the common-law rule prevails in Kansas.

         3. Restatement (Second) of Torts § 876 (1979) is applicable when tortfeasors who act in concert engage in some affirmative conduct relating to the plaintiff's injury; their legal relationship eliminates the possibility of comparing their conduct for purposes of apportioning liability.

         Review of the judgment of the Court of Appeals in an unpublished order filed August 17, 2016.

          Appeal from Johnson District Court; Kevin P. Moriarty, judge.

          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.

          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 ...


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