Maria KILMER, Individually and as Next Friend of Sara L. Kilmer, Teresa Kilmer and Diana Kilmer, Appellants, v. Hui Chan MUN, Defendant, Stefanina‘s Pizzaria & Restaurant, Inc., Respondent.
No. SC 81853.
Supreme Court of Missouri, En Banc.
May 9, 2000.
Rehearing Denied June 13, 2000.
5 S.W.3d 545
T. Michael Ward, Russell F. Watters, Amy L. Klingemann, Robert J. Wulff, St. Louis, for respondent.
MICHAEL A. WOLFF, Judge.
The widow and children of Thomas Kilmer brought this wrongful death action against Hui Chan Mun, the driver whose car collided with Kilmer‘s on the wrong side of a divided highway, and against Stefanina‘s, the restaurant that served beer to Hui Chan Mun after he allegedly was obviously intoxicated. The Kilmers’ “dram shop” claim against the restaurant is based on
The Kilmers appealed to this Court challenging the constitutionality of the statutory restriction that requires a conviction in order to maintain a claim under
We hold that the statutory restriction violates the “open courts” provision of the
Facts2
The Kilmers allege that Hui Chan Mun had pitchers of beer at Stefanina‘s Pizzeria and Restaurant, an establishment licensed to sell intoxicating liquor, between approximately 10:00 p.m. and midnight on February 26, 1998. Hui Chan Mun then allegedly3 drove his car on the wrong side of the divided U.S. Highway 40. He collided with a car driven by Thomas Kilmer, who died at the scene of the accident.
Hui Chan Mun was subsequently convicted of involuntary manslaughter. Evidence at Hui Chan Mun‘s criminal trial was that his blood alcohol content at the hospital two hours after the collision was .13% per weight by volume. The Kilmers filed an affidavit of Dr. Mary Case, the pathologist who testified at the criminal trial. Dr. Case opined that Hui Chan Mun‘s blood alcohol content would have been .136%-.142% prior to being served his last drink before the collision and .112%-.118% prior to being served his second-last drink prior to the collision. At these levels, Hui Chan Mun would have exhibited outward signs of intoxication including, diminished judgment, decreased inhibitions, impaired perception, memory and comprehension.
Kilmer‘s family asked the St. Charles County prosecuting attorney to charge Stefanina‘s with violating
The Kilmers’ wrongful death lawsuit includes a claim against Stefanina‘s alleging that Kilmer‘s death was the result of Stefanina‘s serving alcohol to a patron who was obviously intoxicated. The trial court granted Stefanina‘s Motion for Summary Judgment because
The Origin of the “Open Courts” Provision
The
This case presents the question of whether this “open courts” provision states a constitutional right or merely states an ideal to which our system aspires.
An “open courts” provision has been in our state constitution since the first Missouri Constitution of 1820. Its origins are in Magna Carta, a document that evolved as the basic charter of English liberty after its original version was signed and sealed by King John of England in 1215.5
The original language of Magna Carta — “To none will we sell, to none will we deny, delay, right or justice”6 — reflected the concern that the courts of the era had fallen into disrepute for selling writs.7 In Lord Coke‘s commentary on Magna Carta, the text quoted here underwent a “radical change” and was available to American constitutional drafters in a form close to the version now in the Missouri Constitution: “[E]very Subject of this Realm, for injury done to him in [goods, land or person], ... may take his remedy by the course of the Law, and have justice and right for the injury done him, freely without sale, fully without any denial, and speedily without delay.”8
Missouri‘s version of the “open courts” provision has been strengthened twice since its adoption in our state‘s first constitution of 1820. Missouri‘s first constitution put the “open courts” provision in our Bill of Rights, which provided: “That courts of justice ought to be open to every person, and certain remedy afforded for every injury to person, property, or character; and that right and justice ought to be administered without sale, denial, or delay....”
The “Open Courts” Provision and Our Cases
In the past 25 years, the legislature has enacted various provisions affecting claims, remedies and procedures for injured persons who seek redress in court. The challenges based in whole or in part on
These modern era cases start with State ex rel. Cardinal Glennon Memorial Hosp. for Children v. Gaertner, 583 S.W.2d 107 (Mo. banc 1979), where this Court invalidated a requirement that a medical malpractice plaintiff submit his or her claim to a professional liability board for a recommendation prior to filing a lawsuit in court. Even though the procedure invalidated in Cardinal Glennon did not ultimately deny access to the court, the procedural hurdle was held to be enough to violate
Schumer v. City of Perryville, 667 S.W.2d 414 (Mo. banc 1984), invalidated the requirement, as applied to a minor who was legally incapable of bringing his own action, of giving notice of his claim before suing a municipality. Similarly, Strahler v. St. Luke‘s Hosp., 706 S.W.2d 7 (Mo. banc 1986), held that the statute of limitations for actions against health care providers, as applied to minors, violated the “open courts” provision because it cut off a minor‘s claim before the minor was able to bring suit on his own behalf. In Simpson v. Kilcher, 749 S.W.2d 386 (Mo. banc 1988), this Court upheld the dram shop statute at issue in this case, which requires conviction of a liquor licensee as a pre-condition of bringing suit against a licensee. Harrell v. Total Health Care, Inc., 781 S.W.2d 58 (Mo. banc 1989), upheld a statute that exempted health service corporations from liability for injuries to patients based on the corporation‘s negligent selection of a surgeon. Mahoney v. Doerhoff Surgical Services, Inc., 807 S.W.2d 503 (Mo. banc 1991), upheld a statute requiring that a person bringing a claim against a health care provider file an affidavit stating that the plaintiff had obtained a health care provider‘s written opinion as to the merits of the claim. Blaske v. Smith & Entzeroth, Inc., 821 S.W.2d 822 (Mo. banc 1991), upheld a ten-year statute of limitation as to architects, engineers and persons furnishing construction services from liability as a result of a defective or unsafe condition of an improvement to real property. Goodrum v. Asplundh Tree Expert Co., 824 S.W.2d 6 (Mo. banc 1992), held granting of exclusive jurisdiction to the Labor and Industrial Relations Commission to determine whether an employee‘s injuries are the result of an accident or intentional act does not violate the “open courts” provision. Adams v. Children‘s Mercy Hosp., 832 S.W.2d 898 (Mo. banc 1992), upheld statutory provisions imposing a cap on noneconomic damages, allowing future damages to be paid in installments, and requiring apportionment of fault to include a percentage allocated for released parties. Finally, and most recently, in Wheeler v. Briggs, 941 S.W.2d 512 (Mo. banc 1997), this Court upheld the medical malpractice statute of limitations as applied to a mentally incapacitated person.
Some of the results seem incongruous; for example, Strahler, which invalidated the medical malpractice statute of limitations as applied to a minor, and Wheeler, which upheld the statute as applied to a mentally incompetent person.
Despite the inconsistencies, there is a coherent line of reasoning that can be distilled from various opinions over the years that, if followed in this and subsequent cases, will ensure that
Both the common law and our statutes recognize various legal injuries to person, property and character and provide remedies for such injuries. A statute, as noted, may modify or abolish a cause of action that had been recognized by common law or by statute. See Blaske, 821 S.W.2d 822, and Adams, 832 S.W.2d 898.16 But where a barrier is erected in seeking a remedy for a recognized injury, the question is whether it is arbitrary or unreasonable.17
Section 537.053 Erects an Arbitrary, Unreasonable Barrier
Here,
The “cause of action,”18 however, as recognized by the statute can only be asserted where the person licensed to sell intoxicating liquor has been convicted under
If the “certain remedy” guaranteed in
Our earlier case on this subject, Simpson, 749 S.W.2d 386, is premised on the notion that the plaintiff‘s claim “was
The legislature purports to eliminate dram shop liability in
Subsection 2 of
Whether an injured party has a remedy under
Moreover, the statute on its face denies entirely a remedy to a plaintiff whose wrongdoing drunk driver was a patron who was over-served by a dram shop operator in another state and causes injury in Missouri. For example, assuming a defendant‘s conduct is sufficient to support personal jurisdiction, an Illinois dram shop operator who solicits patrons from Missouri would certainly be subject to liability under Missouri law if his patron drove across the border and injured a Missourian, except for the fact that that particular defendant could not be subject to prosecution under
In this case, a prosecuting attorney, and not the legislative branch, decides whether there is a cause of action under
The test this Court applies is whether access to court for a recognized injury is subject to an arbitrary or unreasonable barrier. The prerequisite of a criminal conviction, in order for a plaintiff to proceed with a civil action, is as we have discussed, both arbitrary and unreasonable. Simpson is overruled.22
The dissent raises severability under
Notwithstanding subsections 1 and 2 of this section, a cause of action may be brought by or on behalf of any person who has suffered personal injury or death against any person licensed to sell intoxicating liquor by the drink for consumption on the premises ... if the sale of such intoxicating liquor is the proximate cause of the personal injury or death sustained by such person.
Conclusion
In summary, the open courts provision is explicitly in our constitution, and though we give deference to legislative enactments, those enactments must yield to constitutional mandates. Claims for injuries are recognized by common law and by statute. The legislature may abolish such recognition.24 If the legislature had eliminated dram shop liability entirely, the Kilmer family would have had no claim against defendant Stefanina‘s, which served liquor to defendant Hui Chan Mun when the latter allegedly was obviously intoxicated. But where there is an injury that is legally recognized, as the dram shop injury is recognized in
The Kilmers may pursue their remedy.25 We reverse the trial court‘s judgment, and remand the cause for further proceedings.
PRICE, C.J., WHITE and HOLSTEIN, JJ., concur;
LIMBAUGH, J., dissents in separate opinion filed;
COVINGTON and BENTON, JJ., concur in opinion of LIMBAUGH, J.
STEPHEN N. LIMBAUGH, Jr., Judge, dissenting.
I respectfully dissent.
The majority misapplies the open courts provision to afford plaintiffs a cause of action for dram shop liability that the statute does not permit, and in the process overrules Simpson v. Kilcher, 749 S.W.2d 386 (Mo. banc 1988), without giving Simpson the courtesy of addressing its compelling rationale, much less paying any consideration to the principles of stare decisis.
I.
I have no disagreement with the majority‘s statement of the law regarding Missouri‘s “open courts” provision, so far as the statement goes. As the majority explains, ”
A.
The majority misapplies these principles by holding that the conviction requirement of
Notwithstanding subsections 1 and 2 of this section, a cause of action may be brought by or on behalf of any person who has suffered personal injury or death against any person licensed to sell intoxicating liquor by the drink for consumption on the premises who, pursuant to
section 311.310, RSMo , has been convicted, or has received a suspended imposition of the sentence arising from the conviction, of the sale of intoxicating liquor to a person under the age of twenty-one years or an obviously intoxicated person if the sale of such intoxicating liquor is the proximate cause of the personal injury or death sustained by such person.
The structure of the statute, which was the basis of the Simpson Court‘s analysis and which, inexplicably, the majority makes no effort to address, consists of four substantive elements or conditions to the cause of action:
- plaintiff suffered personal injury or death,
- defendant was licensed to sell intoxicating liquor by the drink,
- pursuant to
section 311.310, RSMo , defendant was convicted, or received a suspended imposition of sentence of the sale of intoxicating liquor ... to an obviously intoxicated person, and - the sale of such intoxicating liquor was the proximate cause of the personal injury or death sustained by plaintiff.
In order to find the statute constitutionally infirm by characterizing the conviction requirement as a procedural bar rather than a substantive element, the majority necessarily rewrites the statute to delete element “C,” the conviction requirement, from the cause of action proper. Only then does the conviction requirement stand independent from the elements of the cause of action and thus allow the majority to challenge it as a procedural bar.
B.
Even if the conviction requirement is somehow independent from the elements of the cause of action proper, it still does not follow that the requirement is a “procedural” bar that impermissibly denies access to the courts. To be sure, the conviction requirement is a precondition to the cause of action, but it is a substantive precondition that is not dependent on any procedural requirement that plaintiff must satisfy. Indeed, there can be no procedural requirement, or procedural bar, to a cause of action that has not yet accrued, and here the cause of action cannot accrue until the substantive precondition of a criminal conviction is met.
II.
The majority‘s analysis of the secondary issues regarding separation of powers and equal protection is equally unpersuasive. The separation of powers claim, as I understand it, is that the legislative department wrongfully delegated to executive department prosecutors the authority to determine the existence of the cause of action for dram shop liability. This delegation purportedly occurs by virtue of the fact that prosecutors ultimately decide whether to file or refuse to file charges that might result in a criminal conviction under
III.
Assuming, arguendo, that
The severability issue is governed by
The provisions of every statute are severable. If any provision of a statute is found by a court of competent jurisdiction to be unconstitutional, the remaining provisions of the statute are valid unless the court finds the valid provisions of the statute are so essentially and inseparably connected with, and so dependent upon, the void provision that it cannot be presumed the legislature would have enacted the valid provisions without the void one; or unless the court finds that the valid provisions, standing alone, are incomplete and are incapable of being executed in accordance with the legislative intent.
In this case, the legislative intent on which the severability issue depends is found in
- Since the repeal of the Missouri Dram Shop Act in 1934 (Laws of 1933-34, extra session, page 77), it has been and continues to be the policy of this state to follow the common law of England, as declared in
section 1.010, RSMo , to prohibit dram shop liability and to follow the common law rule that furnishing alcoholic beverages is not the proximate cause of injuries inflicted by intoxicated persons. - The legislature hereby declares that this section shall be interpreted so that the holdings in cases such as Carver v. Schafer, 647 S.W.2d 570 (Mo.App.1983); Sampson v. W.F. Enterprises, Inc., 611 S.W.2d 333 (Mo.App.1980); and Nesbitt v. Westport Square, Ltd., 624 S.W.2d 519 (Mo.App.1981) be abrogated in favor of prior judicial interpretation finding the consumption of alcoholic beverages, rather than the furnishing of alcoholic beverages, to be the proximate cause of injuries inflicted upon another by an intoxicated person.
Despite the legislative intent, or rather the legislative mandate, that there will be no dram shop liability in Missouri except for the limited cause of action in
Using the terminology of
As stated, however, I would not reach the severance issue because I would hold, in the first instance, that the conviction requirement is not unconstitutional. For
No. ED 76036.
Missouri Court of Appeals, Eastern District, Division Two.
Dec. 21, 1999.
Motion for Rehearing and/or Transfer to Supreme Court Denied May 17, 2000.
Mary S. Choi, Asst. Public Defender, St. Louis, for appellant.
Jeremiah W. (Jay) Nixon, Atty. Gen., John M. Morris, III, Susan K. Glass, Asst. Atty. Gen., Jefferson City, for respondent.
Before KATHIANNE KNAUP CRANE, P.J., and ROBERT G. DOWD, Jr., and SHERRI B. SULLIVAN, JJ.
ORDER
PER CURIAM.
Damon L. Caldwell (Movant) appeals the denial of his Rule 29.15 motion for postconviction relief without an evidentiary hearing. Movant contends the motion court erred in denying his postconviction motion without an evidentiary hearing because Movant‘s trial counsel was ineffective for cross-examining a State‘s witness that opened the door to prejudicial hearsay. We affirm.
We have reviewed the briefs of the parties and the record on appeal and find the claims of error to be without merit. An opinion would have no precedential value nor serve any jurisprudential purpose. The parties have been furnished with a memorandum for their information only, setting forth the reasons for this order pursuant to Rule 84.16(b).
STATE of Missouri, Plaintiff-Respondent, v. Dwayne HINKLE, Defendant-Appellant.
No. ED 75460.
Missouri Court of Appeals, Eastern District, Division Two.
Dec. 21, 1999.
Motion for Rehearing and/or Transfer to Supreme Court Denied May 17, 2000.
David C. Hemingway, Asst. Sp. Public Defender, St. Louis, for appellant.
Joyce Dee Hays, Cir. Atty., Catherine V. Fee, Asst. Cir. Atty., St. Louis, for respondent.
Before KATHIANNE KNAUP CRANE, P.J., and ROBERT G. DOWD, Jr., and SHERRI B. SULLIVAN, JJ.
ORDER
PER CURIAM.
Dwayne Hinkle (Hinkle) appeals from the judgment upon his conviction by a jury of two counts of assault in the third degree, Section 565.070, RSMo 1994, a Class
Notes
Any licensee under this chapter, or his employee, who shall sell, vend, give away or otherwise supply any intoxicating liquor in any quantity whatsoever to any person under the age of twenty-one years, or to any person intoxicated or appearing to be in a state of intoxication, or to a habitual drunkard, and any person whomsoever except his parent or guardian who shall procure for, sell, give away or otherwise supply intoxicating liquor to any person under the age of twenty-one years, or to any intoxicated person or any person appearing to be in a state of intoxication, or to a habitual drunkard, shall be deemed guilty of a misdemeanor, except that this section shall not apply to the supplying of intoxicating liquor to a person under the age of twenty-one years for medical purposes only, or to the administering of such intoxicating liquor to any person by a duly licensed physician. No person shall be denied a license or renewal of a license issued under this chapter solely due to a conviction for unlawful sale or supply to a minor when serving in the capacity as an employee of a licensed establishment.
- Since the repeal of the Missouri Dram Shop Act in 1934 (Laws of 1933-34, extra session, page 77), it has been and continues to be the policy of this state to follow the common law of England, as declared in
section 1.010, RSMo , to prohibit dram shop liability and to follow the common law rule that furnishing alcoholic beverages is not the proximate cause of injuries inflicted by intoxicated persons. - The legislature hereby declares that this section shall be interpreted so that the holdings in cases such as Carver v. Schafer, 647 S.W.2d 570 (Mo.App.1983); Sampson v. W.F. Enterprises, Inc., 611 S.W.2d 333 (Mo.App.1980); and Nesbitt v. Westport Square, Ltd., 624 S.W.2d 519 (Mo.App.1981) be abrogated in favor of prior judicial interpretation finding the consumption of alcoholic beverages, rather than the furnishing of alcoholic beverages, to be the proximate cause of injuries inflicted upon another by an intoxicated person.
- Notwithstanding subsections 1 and 2 of this section, a cause of action may be brought by or on behalf of any person who has suffered personal injury or death against any person licensed to sell intoxicating liquor by the drink for consumption on the premises who, pursuant to
section 311.310, RSMo , has been convicted, or has received a suspended imposition of the sentence arising from the conviction, of the sale of intoxicating liquor to a person under the age of twenty-one years or an obviously intoxicated person if the sale of such intoxicating liquor is the proximate cause of the personal injury or death sustained by such person.
The provisions of every statute are severable. If any provision of a statute is found by a court of competent jurisdiction to be unconstitutional, the remaining provisions of the statute are valid unless the court finds the valid provisions of the statute are so essentially and inseparably connected with, and so dependent upon, the void provision that it cannot be presumed the legislature would have enacted the valid provisions without the void one; or unless the court finds that the valid provisions, standing alone, are incomplete and are incapable of being executed in accordance with the legislative intent.