By DAN MARGOLIES
Kansas News Service
Kansas is one of just a handful of states that doesn’t allow a person injured by a drunk driver to sue the retailer who furnished the alcohol.
On Friday, the Kansas Supreme Court upheld that 34-year-old rule, saying it was up to the Legislature to change it.
The accident left Kudlacik, who had just celebrated his 23rd birthday with his parents, with compound fractures in both of his femurs, a punctured lung, nine broken ribs and other injuries. He was placed in a medically induced coma for 21 days and spent 70 days in Overland Park Regional Medical Center before he was discharged. He subsequently spent months in rehabilitation.
The driver who hit him, Michael Aaron Smith, had a blood alcohol content of 0.179, more than twice the legal level of impairment in Kansas.
Court records indicate that Smith had eight to 10 alcoholic drinks at Johnny’s Tavern in Shawnee over the course of about four and a half hours and then a beer at Barley’s Brewhaus in Overland Park over the course of an hour.
Thirteen months after the accident, Smith pleaded guilty to aggravated battery while driving under the influence and was sentenced to 31 months in prison. Court records show he was also ordered to pay restitution of more than $1.5 million to Kudlacik’s insurance carrier and more than $18,000 to the state crime victim compensation fund.
Kudlacik, meanwhile, sued the two bars where Smith drank, claiming the bartenders knew or should have known that Smith was intoxicated and still continued to serve him alcohol.
Johnson County District Judge Kevin Moriarty dismissed the case, noting that Kansas doesn’t allow third-party lawsuits against alcohol vendors for injuries caused by their patrons. The Kansas Court of Appeals upheld Moriarty.
Kudlacik then appealed to the Supreme Court, arguing Kansas’ rule is outdated, creating an “inexplicable immunity” for alcohol vendors, and is bad public policy.
The Supreme Court didn’t buy it.
“These arguments have some merit but not enough to cause this court to upend the status quo,” the court stated in an opinion written by Justice Dan Biles.
Biles said the court was bound by a 1985 Kansas Supreme Court case, Ling v. Jan’s Liquors, which found that since Kansas doesn’t have a dram shop act, “the common-law rule prevails in Kansas.”
Kansas used to have a dram shop law, but it was repealed in 1949, when the Legislature enacted comprehensive liquor regulation even as it criminalized liquor sales to minors and incapacitated people.
A line of cases since then has upheld the Kansas rule. Lawsuits against universities, fraternities, bars and liquor stores have all butted up against it and been thrown out.
And while the Supreme Court acknowledged on Friday that it wasn’t entirely convinced by the Ling case’s rationale — including what the opinion in Ling said were difficulties in recognizing intoxication and predicting patrons’ conduct — Biles said that “we are not clearly convinced Ling was originally erroneous or is no longer sound because of changing conditions and that more good than harm will come by departing from it.”
“We remain unpersuaded that a duty of care runs from tavern owners to third-parties injured by their patrons after leaving the tavern owner’s premises,” he wrote.
Kansas City attorney David Morantz, who represented Kudlacik, said his client knew he faced long odds in getting the law changed but was hopeful the Supreme Court would see fit to scrap it.
“We told him going into this that it would be an uphill battle because the court’s prior rulings on this subject going back to the ’80s presented quite a challenge for us,” Morantz said. “And Jeff knew all along that if we weren’t successful in the courts, we would take the matter to this Legislature and that’s what we plan to do next.”
Morantz said Kudlacik has learned to walk again and is engaged to be married in November.
“Jeff’s made a remarkable recovery and he’s really been an inspiration to our firm,” Morantz said.
The stakes in the Kudlacik case were big enough to draw the attention of outside parties with an interest in the case. Mothers Against Drunk Driving, the Kansas Trial Lawyers Association and the Kansas Emergency Medical Services Association weighed in with friend-of-the-court briefs supporting Kudlacik’s position. The Kansas Restaurant and Hospitality Association and the Kansas Association of Defense Counsel filed briefs opposing it.
Wichita attorney Blake Shuart, who represented Mothers Against Drunk Driving, said the organization was disappointed with the decision.
“We feel that the Supreme Court missed a good opportunity to create a cause of action that could benefit lots of Kansans,” Shuart said.
Shuart said the court seemed to recognize there were sound policy reasons for creating a right to sue, “but the issue has now been kicked back to the Kansas Legislature.”
“Regardless of this opinion,” he said, “the policy arguments presented by both Mr. Kudlacik and our client, MADD, remain viable, and we encourage the Legislature to take overdue action, so that Kansas may join the overwhelming majority of states that have elected to hold liquor vendors responsible for the injuries they cause.”
Adam Mills, president and CEO of the Kansas Restaurant and Hospitality Association, said any change in the law was best left to the Legislature.
“We appreciate the Supreme Court upholding previous rulings and providing certainty for our industry,” Mills said in an email. “Alcohol sales by Kansas’ restaurant and hospitality industries are heavily regulated. These same regulations have produced reductions in the amount of alcohol-related traffic incidents, which have dropped dramatically since 1985.”