*1 56,921 No.
Lyllis Ling, Appellant, Appellee. Liquors, Jan’s P.2d 731) (703 Opinion filed July 1985. Vasos, Vasos, Dickerson, Kugler City, argued Donald W. & of Kansas Dickerson, firm, Stephen G. the same with him cause on the briefs for appellant. cause, Olathe, Chartered, Parkinson, argued the Payne Jones, & Mark V. appellee. firm, the brief for Martin, was with him on of the same Keith of the court was delivered opinion *2 Lyllis Ling (plaintiff-appellant) brought this Schroeder, C.J.: negligence part the alleging in the trial court on of action Jan’s (defendant-appellee) selling a Liquors in alcohol to minor whose causing plain- in a car accident allegedly resulted intoxication judgment dismissing an order and injury. Ling appeals from tiff s it fails ground defendant on the that to complaint against her granted pursuant upon which relief can be to K.S.A. a claim state 60-212(b). We the decision of the trial court. affirm upon state ruling a to dismiss for failure to a claim on motion granted, Ling safeguard afforded the of which relief can be true allegations her taken as and all inferences drawn having all Esrey, favorably her. Wirt Kan. to (1983). Applying principle, complaint that we look to the for the alleges: facts. It a.m., Sunday, 3, 1980, February approximately Ling
At on Fairway, in driving was her automobile east on Drive Johnson Kansas, County, the when vehicle became disabled. Johnson standing and was beside it when she was Ling left vehicle Shirley. by struck a vehicle driven Richard At that time years a under Shirley was nineteen old and minor Missouri law liquors intoxicating minors. governing sale of to Shirley accident, operating At time was a motor of alcohol. vehicle under the influence of A blood alcohol exami- Center, taken at Shawnee Mission Medical Overland nation Kansas, Park, a showed blood alcohol concentration of 0.30 percent weight. alleges Liquors, petition also Missouri retail Jan’s establishment, provided Shirley sold or Richard on to 2,1980,
night February beverage an alcoholic which rendered incapable operating him a motor vehicle. February 3, Ling petition filed a in the District
On Court Kansas, County, seeking injuries for the she Johnson amputation legs. which resulted in the of both her On received July 20,1983, pursuant the defendant filed motion to dismiss to 60-212(b). K.S.A. dismiss, concluding (1) granted the motion
The district to court liability in is no vendor Kansas and there is “there no impose will Supreme Court indication Kansas same”; (2) apply and Missouri should to Kansas law action; (3) long-arm apply instant Kansas statute would to personam jurisdiction give court the case.
Initially, we must ascertain whether the trial court erred in (K.S.A. finding long-arm 60-308b) applied the Kansas statute personam jurisdiction Liquors, it in give over a nonresident Jan’s finding trial court its defendant. The based K.S.A. on 60- 308(b)(7), provides: “(b) Any Submitting jurisdiction process. person, whether or not citizen — state, through agent instrumentality of this who in an
or resident or any enumerated, thereby person and, does of the acts hereinafter submits the if individual, personal representative, jurisdiction the individual’s to the any arising doing of this state as cause courts of action from the of these acts: “(7) causing persons property any injury arising within this state out of an if, act or omission outside of state defendant at the time (A) engaged either defendant solicitation service activities within state; (B) products, *3 processed, things this or materials or serviced or manufac- by anywhere the tured defendant were used or consumed within in this state the ordinary course of trade or use.” argues long-arm
The defendant that this section of the Kansas products liability statute is limited to cases. agree. We jurisdiction personal In order obtained under K.S.A. 60-308(b)(7), the defendant must had the type have of contact (A) the state in (B). with as defined either alternative or other words, the must engaged defendant either been in have solicita state, product or service activities within or the tion the which injury was the cause must used of have been or consumed within ordinary Tilley state in the or course of trade use. In v. Keller Implement Corp., (1968), & Truck recognized legislative this court that the intent K.S.A. 60- of 308(b)(7) grant personam jurisdiction was in to the courts of manufacture, sale, engage this state over those who they if servicing products anticipate of can direct receive or some sale, trade, servicing indirect benefit financial from the use or products of their within this state.
We find that the sale to an out-of-state vendor fit provisions Kansas customer within the occasional does not Moreover, (A) (B). analysis either alternative based on our legislative Tilley, intent in we find vendor legislature when it kind of defendant intended to reach Therefore, erred 60-308(b)(7). the trial court enacted K.S.A. 60-308(b)(7). relying K.S.A. on juris setting and with a similar factual met court An Illinois App. 3d 128 Ill. Koenigseder, in Wimmer issue dictional case, brought suit on plaintiff (1984). In that 2d 326 470 N.E. injuries she resulted from death decedent whose behalf who The defendant-driver in Illinois. in a car accident received law, had Illinois accident, purposes of a minor for caused he was tavern where nearby Wisconsin in a alcohol served been against brought in Illinois plaintiff suit age. The drinking legal lack of dismissed for The trial court liquor vendor. the Wisconsin held, part, that reversed appellate court The jurisdiction. of its under the section jurisdiction personam had Illinois any person jurisdiction over provides which long-arm statute ch. Ill. Ann. Stat. within this State.” act a “tortious who commits stated, 1983). (Smith-Hurd “For 2-209(a)(2) court 110, § nec ‘physical presence is not long-arm purposes of act within this aof tortious essary the commission event takes wrong is where the last State; place . . . the liable.’ [Citations the actor neessary to render place event” the “last found at 331. The court N.E. 2d omitted.]” entirely the sale occurred fact that injury in Illinois. consequence. The court further found state was of no in another were met. “minimum contacts” requirements of process that due provision 60-308(b)(2) relied on is similar to K.S.A. any person jurisdiction over who com- provides It Illinois court. within this state.” act mits a “tortious bar, minor) negligent (selling liquor In the case at state, while the occurred was committed outside Therefore, 60-308(b)(2) K.S.A. within this state. order for *4 injury which in this apply, it must be found that an occurs state as equivalent negligent act this state is to the a result of outside question act within the state.” This is a commission of a “tortious impression in Kansas. of first (1965) Kansas C. Civ. Proc. 60-308 contains several
Vernon’s
discussing
long-arm
the Kansas
statute. Each article
articles
injury
if
within
concludes that
caused
tortious
occurs
state,
place
though
part
even
the first
of the tortious act took
this
state,
injury
is sufficient for
outside the
the occurrence of
(b)(2).
personal jurisdiction
establishing
under
K.S.A.
jurisdictions,
interpreting provisions
in
similar to
Other
633
60-308(b)(2),
the term “tortious act” a broad inter
given
have
imply
continuum
deeming it to
the whole
of actions
pretation,
Ct.,
v.
involved,
single act. Vandermee Dist.
164
rather than a
117,
(1967);
N.E. 2d 761 words, injury In other complete until the has occurred. is not act” to have occurred in the state where “tortious is deemed injury occurs. McClellan, Corp. Supp. (D. In v. 462 F. Kan. J.E.M.
1978), it was misrepresentation held that a fraudulent made from jurisdiction (telephone calls) without which cause tortious injury jurisdiction within the constituted a “tortious act” in this meaning K.S.A.-60-308(b)(2). within state The court found that a sufficient constitutional basis jurisdic- for the exercise of existed and tion arose out of the intentional causing tortious act injury to resident the forum on a claim damages arising for from that act. though
Even the McClellan case involved an intentional tort while the case at negligence, bar involves we reasoning find the McClellan, applicable. McClellan is the “tortious act” misrepresentations included both the from outside the state and resulting injury bar, in Kansas. In the case at the “tortious selling act” included both in Missouri and the plaintiff completed to the in Kansas. The act was Therefore, provisions Kansas. we hold under the of K.S.A. 60-308(b)(2), possible bring it is suit in Kansas to recover injuries occurring in this state which resulted from negligent conduct outside the state. holding oft-repeated
This
is consistent with our
assertion that
long-arm
liberally
statute should be
construed to assert
jurisdiction over nonresident
per-
defendants to the full extent
process
mitted
the due
clause
Fourteenth Amendment
U.S.
Supply,
to the
Constitution. Misco-United
Inc. Richards
Inc.,
215 Kan.
Kansas civilly law, can held liable tavern owner Missouri Under Ling argues that the a minor. intoxicating selling for state where the tort occurred that the law of the is in Kansas rule rights parties; of the the substantive determine applied to intoxicating sale of the wrongful case was in this the tort therefore, law minor; and, substantive Missouri to a Liquors apply. argues Kansas courts are should Jan’s and, injury where the apply the law of the state occurred since Kansas, injury in this case occurred in Kansas law should govern. in this state is that the law of the
The rule state where the tort Sinn, apply. occurred —lex loci delicti —should McDaniel v. (1965); Day, v. Kan. Pool (1935). However, court has never addressed the is, law issue in a multistate conflict of tort action —that where the state, negligent originated injury outside but resultant Sears, Swearngin state. In occurred Roebuck & Com (10th 1967), pany, 376 F.2d Cir. the court stated: “ general ‘[T]he rule is that where an act of omission or commission occurs at one death, place resulting injury, another, personal damage place takes at wrong death, place personal injury situs of the actionable at which the ” property damage place.’ takes
Ling acknowledges
delicti,
that under the doctrine of lex loci
the situs
governing
However,
of the
determines
law.
case,
argues
type
she
that in this
accident site is oversha-
liquor.
dowed
the location of the unlawful
sale
Ling
suggests
adopt
analytical
that this
approach
court should
govern.
“analytical
determine whose law
approach”
should
adopted by
years.
has been
a number of courts in recent
It allows
by giving
the court to resolve the choice of substantive law
to the
place having
problem paramount
the most interest
control
legal
arising
particular
situation,
issues
over
out of
factual
thereby allowing
apply
policy
jurisdiction
the forum to
of the
intimately
particular
most
concerned with the outcome of the
603;
litigation.
Annot.,
Balts,
See
29 A.L.R. 3d
Balts
273 Minn.
Bemis,
The final issue is whether Kansas a claim for relief against furnishing liquor injured in one to minor favor of those consequence as a of the minor’s intoxication. Further, shop there has have a dram act. been does not
Kansas liability in shop this state. judicial imposition of dram no Therefore, with is whether —in the question we are faced impose liability shop act—this court should on a dram absence of defendant, creating cause in this state. thus a new of action liability upon impose that we defend- Ling argues should principles negligence of common-law ant on basis Liquors argues that in the absence of a negligence per se. Jan’s creating remedy a civil shop specifically and special dram purveyor against the commercial of intoxi- civil cause of action cants, can be maintained. remedy or cause of action no law, apart no redress existed from
At common
selling,
furnishing intoxicating liquor
persons
giving, or
against
damages due to the acts of intoxicated
resulting injuries or
for
theory
dispensing
liquor
that the
persons, either on the
neg-
wrong or that it constituted actionable
constituted a direct
theory
proximate
that the
ligence. This rule was based on
purchaser
drinking
in
injury was the act of the
cause of the
See,
selling
e.g.,
it.
State v.
liquor
the vendor in
and not
Hatfield,
2d,
Intoxicating
Am.
637 upheld have discussed and Kansas cases constitu Several Coy Cutting, 138 23 tionality the statute. See Kan. P.2d of Reneer, (1906); 73 Kan. Zibold Pac. 290 Flannigan, 60 Kan. Landrum Pac. 2, 1948,
On the citizens of this state voted to November amend the Constitution of the State of The result art. of Kansas. (Art. only open prohibited in this state. saloon now Kansas.)
10,§ provision Constitution of The new constitutional license, legislature power regulate, gave the and tax the liquors intoxicating regulate manufacture and sale of and to transportation intoxicating liquors. possession and repealed legislature In 1949 the certain statutes under (ch. “Bone-Dry Intoxicating Liquors), Law” because the 41— prohibition against the Kansas constitutional manufacture and intoxicating liquors repealed. legislature, had been The sale exercising power, Liquor its enacted the “Kansas Act.” Control (Ch. 41, 27.) through regulated art. 1 art. new manufacturing, bottling, blending, selling, bartering, transporta tion, delivery, furnishing possessing liquor. or of alcoholic comprehensive plan regulate liquor Act was a from the time importation its manufacture within state or into the until state ultimately it was consump sold a licensed retailer for use or Londerholm, 748, 752, Tri-State Hotel Co. v. tion. prohibition against Included the Act was the intoxicating liquors incompetents. the sale of to minors and G.S. 1949, 41-715 stated: sell, knowingly unknowingly give away, of, dispose “No shall or deliver, sale, exchange permit gift procuring any alcoholic minor; represent age and no such minor shall or for he for the for,
purpose asking purchasing receiving liquor any persons, of or alcoholic from sell, by person knowingly except give away, in cases authorized law. No shall of, deliver, sale, dispose exchange permit gift any procuring or or or of any person mentally liquor incompetent, any person alcoholic to or for who or physically mentally incapacitated by consumption who is or of such li- 1949, 242, 78; quor. 9.]” . .' . ch. March [L. provided imprisonment. The statute also for a fine or legislature legislature The 1949 same which enacted the —the regulatory shop criminal statute —chose not to reenact the dram 1949, 41-1106, act. It repealed was G.S. and has never been reenacted. prohibiting intoxicating liquor
The 1949 of to minors sale (L. 1965, § (L. 1963, 267, 1) was amended in 1963 ch. and in 1965 277, 8). ’§ ch. K.S.A. 41-715 now states: represent age purpose for, asking shall that he is of “No minor of liquor any receiving person except purchasing or alcoholic from in cases autho- attempt purchase purchase by liquor minor shall or rized law. No alcoholic possess liquor. person any person. minor shall alcoholic No shall from No of, deliver, sale, sell, away, dispose exchange permit gift knowingly give or or any any incapacitated procuring alcoholic to or for who or mentally incapacitated any person physically person, or who is or the con- any liquor. Any person violating provisions sumption this of such of the section misdemeanor, guilty upon shall deemed of a conviction thereof shall be ($200) by imprison- punished a fine of not more than two hundred dollars or (30) thirty days, imprisonment ment not to exceed or both such fine and 242, 78; 1963, 267, 1; 1949, 1965, § ch. L. ch. [L. discretion of the court. L. ch.
277, 8;§ 30.]” June 1965, 277, § 7, ch. legislature making The 1965 enacted L. it a any person knowingly unknowingly to, buy crime for or sell for, to, furnish, directly indirectly, give any either or or intoxi- any person age twenty-one years. cating liquor to under 38-715, Supp. provision That K.S.A. included revoking the retail license issued under K.S.A. 41-308 of any penalty retailer who violated the statute. The revocation was repealed later when K.S.A. 21-3610 was enacted in 1969. When legislature phrase enacted that statute in it omitted “knowingly unknowingly,” making present or violation a general intent crime. liability legislature’s repeal
Since the of the civil statute in reported asserting there has been no Kansas case liability persons selling furnishing liquor. to third of one Calmes, shop Stringer last case to discuss the dram statute was prior repeal which was decided in 1949 held, unequivocably, the act. In that case the court that no right common-law of action existed. years, legislature
In has recent Kansas made control of high priority Significant legislation drunken drivers a matter. has tightened with legisla- the laws deal such offenses. The aspects problem has all ture of state considered driving seeking problem. drunken solutions to the shop legislation (H.B. limited dram was introduced. 2661). proposed imposed person negli- bill on gently selling furnishing beverages alcoholic to a minor where minor, thereof, death, personal under the influence caused property damage to another. The bill died it was after passed out of committee. January 3,1985, legislation proposed
On dram *9 Attorney press General. A release of that Kansas date from his part: states in office Stephan “Attorney newly ap- T. has written letters General Robert to the Judiciary urging
pointed and Senate chairmen of House committees consid- Kansas, shop along law in with other of a dram measures to stiffen the eration driving laws. state’s drunk Frey, “Stephan wrote the letters to Senator-elect Robert Chairman of the Judiciary Rep. Knopp, Committee and Chairman of the Senate House Joe Judiciary Committee. shop Stephan proposes give persons injured by “The dram law would employers specific right person, their families and to sue intoxicated stores beer, clubs, liquor private selling package or clubs and taverns. The taverns and they damages if stores could be found liable for sold beer or to a intoxicated, already point intoxication, or served them alcohol to the who injury.” provided that the intoxication contributed to (January 8,1985) days press Five later another from the release Attorney General’s Office stated: “Attorney Stephan today T. will General Robert said he advise the chairmen of Judiciary modifying proposals driving. committees he is his to combat drunk “ you you up you ‘If have decided that have come with a bad idea then have a so,’ responsibility say Stephan courage suggestions said. T have the to make legislative study, courage my proposals and also have the to know when to deter driving should be modified. drunk “ reexamination, ‘Upon existing strengthened I believe law can be driving. shop proposed only better combat drunk The dram law which I would Therefore, legal entanglements. my withdrawing suggestion I am add that a study will dram law be enacted and continue to further means to deal with ” driving.’ drunk mind, background again
With this
we
historical
turn to the
plaintiffs arguments. Ling
that the
contends
violation of K.S.A.
(establishing
penalties
41-715
21-3610 and K.S.A.
criminal
minor)
duty imposed
is a breach
sale of alcoholic
and, thus,
per
negligence
law
se.
other contexts this court
duty
recognized
imposed by
has
the rule that
of a
breach
se,
negligence
damages may
predi
per
and that
ordinance
proximate
if
cated on its violation
the breach
cause of the
substantially
injury.
contributes
to the
Stores, Inc.,
227 Kan.
Arredondo Duckwall
once a was first *10 time, repealed. legislature, although Since that it, it has considered has not re-created a civil cause of action in injured favor of those as a result of violation of the laws. Clearly, legislature would have done so had it intended for a civil to be cause of action. K.S.A. prohibits there 41-715 liquors dispensing intoxicating of to certain persons classes of is a comprehensive regulate manufacture, sale, and act to and liquors. legislature distribution of alcoholic did not intend interpreted impose for it be liability. Therefore, to civil we that the hold Missouri vendor’s violation of a criminal regulatory negligence per statute was not se. noted, previously
As
that,
the common-law rule is
legislation,
absence
suppliers
of
of alcohol are not liable to
the victims of an
tortfeasor. Stringer,
intoxicated
Although empowered change the common law in light of changed conditions, recognizes court that declaration of public policy normally legislative function of the branch of government. Whether Kansas should abandon the old common- align rule and itself with the new trend of cases which impose liability upon civil vendors of beverages alcoholic for the torts of patrons their inebriated depends ultimately upon what serves the societal Clearly, best interest and need. this is a matter public policy of legislature equipped best to handle. Circo,
The court in 496, 504-05, Holmes v. 196 Neb. (1976), N.W.2d 65 made the following astute with observation agree: which we misery “We mindful caused drunken are drivers and the losses society drivers, both individuals at hands sustained and of drunken but the limiting defining grow task of new cause of action which could from a fact permutations nucleus formed from combination of numerous the fact properly Legislature. situation before us is within the realm of imposition duty “The of a common law care of due would create a situation rife uncertainty difficulty. negligence, with If the commercial vendor is liable for gathering duty prospective guests? at a does the host social owe a victims of recognizing predicting
The difficulties of intoxication and conduct of intoxi- duty patron imposing inquiry cated without some are evident. Problems could apportionment sorting liability among also arise in the out the owners of hopping’ various visited ‘bar bars on excursions. The correct standard of care to presents problem, be used also as does the determination of all whether acts of torts, patron, including intentional should included within operator.” the tavern owner or analysis, the final we find the decision should be left to the *11 legislature.
Accordingly, we affirm trial finding plaintiff the court’s that the upon failed to state a claim granted. which relief could J., concurring part Holmes, in dissenting part: and in I concur majority opinion with the that under the common law as it exists in this state there is no in this case and that the trial court dismissing was correct in plaintiffs case for failure state a legislature, 1949, cause of action. repealed When the in R.S. 1923, 21-2150, it appear would it obvious intended the common law to prevail. pointed by As majority opinion, out the legislature has, occasions, on numerous liquor revised our legislation control laws but has failed to creating re-enact sought by plaintiff cause of action it position and is not our to do Hence, I agree so. with the majority result reached opinion.
I disagree portion opinion with that apply which would long-arm jurisdiction 60-308(b)(2) under K.S.A. to the facts of this liquor case. The tortious act of the in selling defendant ato minor in Missouri too far occurring removed from the auto accident later, Kansas, hours in to be considered the “commission of a this required tortious act within state” as the statute. While Kansas, plaintiffs injuries unfortunate in they were suffered not, in my opinion, any were the result of tortious act committed Liquors. in Kansas The tortious act this defendant was Jan’s complete upon liquor the sale of the in Missouri. are There justify personal this in case minimum contacts
sufficient statute. See Internat. Shoe Co. long-arm jurisdiction under 95, Ed. 66 S. Washington, U.S. 90 L. Ct. Ltd., Futures, Schlatter Mo-Comm join JJ., foregoing concurring and and Herd, McFarland dissenting opinion. J., concurring dissenting: and I with the concur
Lockett, 60-308(b)(2) (1) provisions K.S.A. it is majority that: under the bring damages injuries possible to suit in Kansas to recover negligent occurring in this state which resulted from conduct state; (2) recovery an and action for outside a injuries sustained in Kansas which were result of breach of state, liability of duty in the defendant is to be another by the laws of this state. determined majority’s agree right with the denial of of action to I cannot injured person, support, by property or means of persons person, consequence intoxicated intoxication of selling person, against illegally furnishing part. which caused the intoxication in whole or in conclusion, majority, by reaching denying cause of exists, law, misapplies legislature’s the common acts action prior and decisions of this court. State majority, citing 197 Md. 78 A.2d Hatfield, 2d, states, (1951), Liquors Intoxicating 45 Am. Jur. law, apart no redress “At from existed common furnishing
against persons selling, giving, intoxicating or resulting injuries the acts intoxicated due to of theory liquor dispensing on the that the of the persons, whether wrong negligence.” direct or constituted actionable constituted states, actually law 2d citation “At common it is not The Am. Jur. ordinary able- intoxicating give liquor either sell or a tort to men, frequently it has held that in the absence bodied and been furnishing against there can be no cause of action one liquor injured by in favor of those intoxication of usually given this is so The reason rule that furnished. it, liquor, proximate furnishing of the not drinking . injury. . . cannot become intoxicated [0]ne cause of if by furnished him he does not drink it.” reason driver, Shirley, intoxicating liquor was furnished in When the he was not an able-bodied man. He was a minor. There this case Kansas, Missouri, as a similar is a statute in as well one furnishing intoxicating liquor prohibits the sale or to minor. Clearly Ling’s law is K.S.A. 41-715. common bar to illegally furnished against intoxicating action vendor who man, an able-bodied but to a minor. not to England component The common law of is the basic adopted law in the United States. Even common if the common states, majority country law is as the the courts of this are not required English to adhere to the decisions of the common law by adopted by courts unless such law is the state courts or legislative general enactment in aid of the statutes. statutory provisions expressly
Constitutional most states law declare the common to be force. The 1868 General Kansas, (now 77-109) Statutes of the State of ch. sec. 3 K.S.A. provided that common law shall remain in force in aid of the general continuously statutes. The common law has been incor- porated by legislature our law our fill into the voids in law legislature where the is silent constitution or the and the courts have failed to act. legislature adopted
When our the rule that the law common statutes, general was to remain in force in aid of the it recognized law was the common modified our constitution and can legislature modified when it enacts new laws or repeals legislature recognized old laws. The also the com- judicial law can rendering mon be modified the courts when people decisions and when the conditions and wants of the (K.S.A. 77-109). require action
The courts of this state have never maintained that the com- quo. mon law is static and must be used to maintain the status Like the Constitution of the United States and the constitution of state, grows applied it this the common as to new situa- judge-made tions or a need arises. The common law is as blindly judge-applied. It is not to be and can be followed require prior if changed when conditions and circumstances unjust public policy. has past, law is become bad In the requirements expanded has law to meet the court common society. economy It a modern would be unfortunate to our , society engage developing if we should cease to our *13 644 judicial expansion adapts which the law tradition of
common-law
dynamic society.
a
and demands of
ever-changing needs
to
every person
is that
negligence law
principle of
general
pose
an unrea
creating situations
duty
avoid
a
to
owes
duty
Negligence exists where the
harm to others.
risk of
sonable
Further,
recovery
if
is breached.
by
person
one
to another
owed
injured party
must
negligence,
such
is to be obtained
duty breached and the
(1)
between the
a causal connection
show:
by
received;
(2)
damaged
that
injury
and
that
484, 488,
Artiles,
86
234 Kan.
673 P.2d
negligence. Durflinger
against
exists
one who
recognized that
action
we
recklessly
intentionally
outrageous conduct
by extreme and
v. Asso-
distress to another. Dawson
severe emotional
causes
Co.,
814, 820,
Kan.
We have
distinction
must
found
“negligence per
Negligence
se.”
gence”
*14
evidence,
jury
“negligence per
from
while
se” results
from a violation of law or ordinance. Kansas follows the rule that
duty imposed by
a breach of
law or ordinance is negligence per
se,
liability
and
damages
predicated
can be
on violation of that
proximate
law where that breach is the
cause of the
substantially
injury.
contributes to the
Kendrick v.
Atchison,
Co.,
249, 260,
T. & S.F. Rld.
The states that a duty imposed breach of a by law or se, negligence per ordinance is legislature unless the clearly did impose intend not to civil for the breach. It states that 41-715, prohibits K.S.A. which the dispensing of alcoholic li- quors to certain classes persons, was intended legisla- regulate ture to the sale of and was not intended impose to liability. civil 41-715, It concludes that K.S.A. while imposing penalties criminal for a violation of the merely is portion a comprehensive regulate manufacture, sale and beverages and, distribution of alcoholic therefore, anot basis negligence per for se. majority suggest
Does the that such is true of all similar acts passed by legislature only or is it limited this act? Consider Chapter Vehicles,” “Automobiles and Other which is a com- prehensive regulate act to licensing, sale and use of automo- biles. Is not the same Chapter true of 8 as is true Chapter that while it contains certain provisions licensing, for other provide sections criminal sanctions for violation of those sec- majority tions? The imply would who, that an individual while automobile, driving an intentionally illegally proceeded and into a controlled intersection and struck another vehicle is not re- quired responsibility to bear the damage caused. legislature did not create a civil-cause of action in favor of injured those as a result of a violation of the traffic laws. Does this legislative silence legislature mean that the did not intend for such violations of the traffic laws interpreted to be impose liability, civil that a violation of the traffic negligence laws is not per legislature se because the Rarely remained silent? does the legislature specifically civil create a cause of action in favor of injured those as a result of a violation of a law.
K.S.A. 41-715 is a licensing not legisla- statute enacted regulate may ture to who liquor. Chapter statutes, sell 41 of the Liquors “Intoxicating Beverages,” contains
which is entitled of a K.S.A. regulate the issuance license. several sections however, appear licensing article of 41-715, does appears which is “Certain It in Article Chapter 41. entitled may, in Acts Penalties.” A violator of 41-715 Prohibited $200.00, a fine not exceed receive a receiving addition to days imprisonment a fine and to exceed 30 both sentence not Any person violating 41-715 the court. the discretion' of of a misdemeanor the statute. guilty deemed prior majority failing case law or either to overrule Stores, Inc., ignoring it. In Duckwall Kan. Arredondo safety (1980), public this court determined drunkards, minors, reasons, prohibits habitual K.S.A. 21-4209 *15 explosives obtaining deton- addicts and felons from or narcotics public policy party It the of the act that the ating substances. was responsibility the act the for whose conduct violates must bear defendant, the damage the caused. The in violation of sixteen-year-old boy gun- gunpowder sold to a who used the injured boy was his powder to reload shells. The when some predicated misfired. The minor his successful action shotgun against gunpowder upon theory the that action- the seller of the duty by a negligence imposed able occurs when one breaches a injury type in an the criminal statute and breach results of prevented. intended to be minor, sale
K.S.A. 41-715 forbids the of alcoholic to a incapacitated any person physically who is person who is mentally incapacitated consumption liquor. of penalty purpose establishes a criminal for such sales. The statute prevent beverages is to the sale of of 41-715 alcoholic to those unlikely who are to be handle These individuals able to alcohol. acts, only protection their individuals not need from own but protection society needs from them. liability required legislative take silence as civil
Are we to to expression violate statute as an for alcohol vendors who of legislative Why majority suddenly intent? has the determined legislature’s repeal legislative that silence is action? Prior to 1949, 41-1106, legislature act in G.S. knew of the dram duty is a that this had stated that where there breach of court breach, imposed by injury of law and occurs as a result injured legislature If party compensation. is entitled to specific class violators from exempt a of wishes to legisla- they negligence, cause their then the damages which legislate exemption. speak. The court should not should ture legislature’s inten- persuasive evidence There is no more give expres- legislature to than a statute undertaken tion past legislative Where enactments to that intention. sion express provision that their violation shall no have contained effect, liability, implication this and no court result tort as a standard adopted requirements of that enactment has society necessary protect certain individuals or as a conduct whole. the State Rights Bill of the Constitution of 18 of the
Section injuries persons who suffer to their provides that all of Kansas remedy by property due course of person, reputation or have constitution, legislature is aware of the In addition to our law. every duty law that is under a principle negligence impose an risk creating situations which unreasonable avoid duty Many have stated that a breach of a times we harm to others. negligence per se and by law ordinance constitutes imposed breach, injured party is as a result of the where occurs actions, Cognizant past our compensation. entitled may judge-made that when a common- legislature well consider obsolete, oppressive, anachronistic and law rule has become change. responsible court presented majority the issue whether states shop” imposing civil judicially a “dram should enact
court *16 issue violate 41-715. The real liability upon vendors who previous law which case this court should follow our is whether policy requires, party’s where a conduct public determined responsibility party must bear the penal violates as a result of the violation. damage caused arising specific expression policy out A statute is an particular aim of the attainment of a and addressed to situations It majority rewrite the statute. legislature. should majority it. should take enlarge it nor contract neither should it. it has failed to do. as it finds This the statute Prager concurring and JJ., join foregoing and Miller, dissenting opinion.
648
APPENDIX summary Following present is a brief status of the civil liability jurisdictions. vendors all (Ala. shop §
1. ALABAMA Dram
act
[1975]).
Code 6-5-71
No
liability.
common-law vendor
v. Mayer
Sup-
DeLoach
Elec.
Co.,
ply
(Ala. 1979).
ity. Urie, (Alaska 1981); Nazareno v. P.2d 638 671 and Morris Farley Enterprises, Inc., v. (Alaska 661 1983). P.2d 167 3. statutory ARIZONA liability. No vendor Common-law lia
bility.
Borak,
500,
v.
Ontiveros
136 Ariz.
(1983);
(1983), overruling earlier Arizona cases adhering to nonlia bility rule.
4. ARKANSAS statutory No liability. vendor No common-law
liability.
Turner,
Carr v.
889,
238 Ark.
5. CALIFORNIA Prevailing liability common-law vendor damage resulting from intoxication abrogated in §
1978 Cal. & (West Bus. Prof. Code 25602 Supp.) 1985 § (West 1985). Cal. Civ. Code 1714 statutory 6. COLORADO liability. No vendor Common-law liability. Kerby Flamingo Club, App. Colo. (1974). 7. (Conn. CONNECTICUT Dram shop § act Gen. Stat. 30-102
[1985]). No
liability.
common-law vendor
Nelson v. Steffens,
Conn.
8. statutory DELAWARE No liability. vendor No common-law
liability. Wright v. (Del. 1981). A.2d 554 Moffitt, 9. DISTRICT OF statutory COLUMBIA No liability. vendor liability.
Common-law
Columbia,
Marusa District
(D.C.
1973).
F.2d 828
Cir.
Prevailing
10. FLORIDA
common-law
vendor
for in-
jury
damage
resulting from intoxication.
Shiap-
Davis v.
pacossee,
(Fla. 1963);
11. GEORGIA
Dram
[1982]).
Code 3-3-22
No
liability.
Co.,
Kroger
common-law
Keaton v.
App.
143 Ga.
*17
(1977).
649 liability. liabil- Common-law statutory vendor HAWAII No 12. 131, (1980). 612 62 Hawaii ity. Applegate, v. Ono liability. liability. statutory Common-law vendor No 13. IDAHO (1980), 617, 135 619 P.2d 101 Idaho Payonk, v. egria Al nonliability rule. adhering to Idaho case overruling earlier 43, ¶ 135 (Ill. Ann. ch. act Stat. shop Dram 14. ILLINOIS liability. vendor Supp.]). No common-law 1984 [Smith-Hurd (1982); 1, 112 2d 440 N.E.2d Duplancich, 92 Ill. Demchuk v. 930, Trickle, 3d 449 N.E.2d App. Ill. v. 114 Thompson (1983). 910 liability. lia- statutory Common-law vendor No
15. INDIANA
598,
(1966).
Fisher,
18.
1968).
(Ky.
George,
19.
1979).
(La.
373
494
ability.
Leggett,
v.
So.2d
Thrasher
17, §
tit.
2002
(Me. Rev. Stat. Ann.
shop act
MAINE Dram
20.
liability not confirmed.
[1983]).
common-law
Status of
liability. No common-law
statutory vendor
No
21. MARYLAND
Butler,
22. MASSACHUSETTS
Inc.,
Sons,
353 Mass.
liability. Adamian
Three
mon-law
v. Gor-
(1968); Michnik-Zilberman
18
233 N.E.2d
(1983).
Inc.,
N.E.2d 430
Mass.
Liquor,
don’s
§
(Mich. Stat. Ann.
18.993
shop act
Dram
23. MICHIGAN
liability.
vendor
Supp.]).
Common-law
[Callaghan
611,
25. *18 liability. Peterson, v. (Miss. So.2d 213 Inc. 368 Munford, 1979). statutory liability.
26. MISSOURI No
vendor
Common-law lia-
bility. Sampson
Enterprises,
v.
Inc.,
W.F.
27.
liability.
MONTANA No
vendor
No common-law
liability.
Watts,
91,
Runge
(1979);
v.
180 Mont.
P.2d
589
145
Bozeman,
City
537,
v.
Folda
177 Mont.
29. liability. NEVADA No vendor No common-law liability. Inc., City 99, Hamm v. Nugget, Carson 85 Nev. 450 (1969). 358 P.2d statutory liability.
30. NEW HAMPSHIRE No vendor Com- liability. Ramsey Anctil, 375, mon-law v. 106 N.H. 211 A.2d (1965). 900 statutory liability.
31. NEW
No
vendor
Common-law
JERSEY
Rappaport
Nichols,
188,
established in
v.
31 N.J.
(1959), recently
hosts,
1
156 A.2d
extended
Kelly
to social
v.
Gwinnett,
538,
(1984).
96
liability. Lopez Maez,
625,
v.
(1982);
98 N.M.
33.
YORK
act
shop
Oblig.
NEW
Dram
Gen.
Law 11-101
[McKinney
Supp.]).
liability.
1984
Berkeley
Common-law
v.
Park,
381,
(1965).
47 Misc.2d
§ seq. [1983]). liability. et 18B-121 Common-law Hutchens v. Hankins, 1, N.C.App. 584, denied, 63 303 S.E.2d rev. 309 (1983). N.C. 191 (N.D. §
35.
shop
NORTH DAKOTA Dram
act
Cent. Code
5-
Supp.]).
liability. Thoring
[1983
01-06
No common-law
v.
(N.D.
Bottonsek,
1984).
651 § (Ohio [Page 4399.01 Rev. Code Ann. shop act Dram 36. OHIO liability. Roberts, 33 Mason vendor 1982]). Common-law (1973). N.E.2d St.2d Ohio subject. on not ruled Has 37. OKLAHOMA liability. Camp- Prevailing vendor common-law 38. OREGON (1977) limited Carpenter, 279 Or. bell § seq. 30.950 Or. Rev. Stat. et liability. statutory vendor Common- No 39. PENNSYLVANIA Darby Lodge liability. Upper No. Jardine A.2d 550 Pa. (R.I. Gen. Laws 3-11-1 Dram RHODE ISLAND
40. *19 confirmed. [1976])-. not Status of common-law subject. on Has not ruled SOUTH CAROLINA 41. statutory liability. Common- vendor DAKOTA No
42. SOUTH Hudson, (S.D. 120 327 N.W.2d liability. City v. Walz adhering case 1982), overruling earlier South Dakota nonliability rule. liability. statutory Common-law vendor
43. TENNESSEE No Ketner, App. 54 393 S.W.2d liability. v. Tenn. Mitchell 755 subject. Has not on
44. TEXAS ruled (Utah [1983 Ann. 32-11-1 shop act Code Dram 45. UTAH liability confirmed. Supp.]). Status of common-law subject. on Has not ruled 46. VERMONT subject. Has not ruled on 47. VIRGINIA vendorliability. statutory Common-law No 48. WASHINGTON O’Neil, See, App. 20 Wash. liability. Callan v. e.g., Pupo, App. v. 37 Wash. Halligan P.2d P.2d 1295 liability. statutory vendor Common-law
49. WISCONSIN No
627,