Jeffrey D. Kudlacik, Appellant,
Johnny's Shawnee, Inc., and Barley's Ltd., Appellees.
BY THE COURT
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.
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.
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
of the judgment of the Court of Appeals in an unpublished
order filed August 17, 2016.
from Johnson District Court; Kevin P. Moriarty, judge.
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.
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
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.
B. Wohlford, of Morris, Laing, Evans, Brock & Kennedy,
Chartered, of Wichita, was on the brief for amicus curiae
Kansas Trial Lawyers Association.
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.
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.
R. Lane and Joseph Uhlman, legal intern, of Newton, were on
the brief for amicus curiae Kansas Emergency Medical Services
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.
and Procedural Background
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.
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
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
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 ...