703 P.2d 731 (Kan. 1985), 56921, Ling v. Jan's Liquors

Docket Nº:56921.
Citation:703 P.2d 731, 237 Kan. 629
Party Name:Lyllis LING, Appellant, v. JAN'S LIQUORS, Appellee.
Attorney:[6] Donald W. Vasos, of Vasos, Kugler & Dickerson, of Kansas City, argued the cause and Stephen G. Dickerson, of the same firm, was with him on the briefs for appellant. Mark V. Parkinson, of Payne & Jones, Chartered, of Olathe, argued the cause, and Keith Martin, of the same firm, was with him o...
Case Date:July 17, 1985
Court:Supreme Court of Kansas
 
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Page 731

703 P.2d 731 (Kan. 1985)

237 Kan. 629

Lyllis LING, Appellant,

v.

JAN'S LIQUORS, Appellee.

No. 56921.

Supreme Court of Kansas

July 17, 1985

Page 732

Syllabus by the Court

1. Under the provisions of K.S.A. 60-308(b)(2), it is possible to bring suit in Kansas to recover damages for injuries occurring in this state which resulted from negligent conduct outside the state.

2. In an action for recovery of damages for injuries sustained in Kansas which were the result of a negligent act in another state, the liability of the defendant is to be determined by the laws of this state.

3. At common law, and apart from statute, no redress exists against persons selling, giving or furnishing intoxicating liquor for resulting injuries or damages due to the acts of intoxicated persons, either on the theory that the dispensing of the liquor constituted a direct wrong or that it constituted actionable negligence. Since Kansas does not have a dram shop act, the common-law rule prevails in Kansas. Stringer v. Calmes, 167 Kan. 278, 205 P.2d 921 (1949).

4. Breach of a duty imposed by law or ordinance may be negligence per se, unless the legislature clearly did not intend to impose civil liability. K.S.A. 41-715, which prohibits the dispensing of alcoholic liquors to certain classes of persons, was intended to regulate the sale of liquor and was not intended to impose civil liability. Thus, a liquor vendor's violation of K.S.A. 41-715 is not negligence per se.

5. The common law is subject to modification by judicial decision in light of changed conditions. However, declaration of public policy is normally the function of the legislative branch of government.

6. The decision whether to impose liability upon the suppliers of alcohol for the torts of their intoxicated patrons is a matter of public policy which the legislature is best equipped to handle.

Donald W. Vasos of Vasos, Kugler & Dickerson, Kansas City, argued the cause and Stephen G. Dickerson, of the same firm, was with him on briefs for appellant.

Mark V. Parkinson of Payne & Jones, Chartered, Olathe, argued the cause, and Keith Martin, of the same firm, was with him on brief for appellee.

[237 Kan. 630] SCHROEDER, Chief Justice.

Lyllis Ling (plaintiff-appellant) brought this action in the trial court alleging negligence on the part of Jan's Liquors (defendant-appellee) in selling alcohol to a minor whose intoxication allegedly resulted in a car accident causing plaintiff's injury. Ling appeals from an order and judgment dismissing her complaint against defendant on the ground that it fails to state a claim upon which relief can be granted pursuant to K.S.A. 60-212(b). We affirm the decision of the trial court.

In ruling on a motion to dismiss for failure to state a claim upon which relief can be granted, Ling is afforded the safeguard of having all her allegations taken as true and all inferences drawn favorably to her. Wirt v. Esrey, 233 Kan. 300, 662 P.2d 1238 (1983). Applying that principle, we look to the complaint for the facts. It alleges:

At approximately 1 a.m., on Sunday, February 3, 1980, Ling was driving her automobile east on Johnson Drive in Fairway, Johnson County, Kansas, when the vehicle became disabled. Ling left the vehicle and was standing beside it when she was struck by a vehicle driven by Richard Shirley. At that time Shirley was nineteen years old and a minor under Missouri law governing the sale of intoxicating liquors to minors.

At the time of the accident, Shirley was operating a motor vehicle under the influence of alcohol. A blood alcohol examination taken at Shawnee Mission Medical Center, Overland Park, Kansas, showed a

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blood alcohol concentration of 0.30 percent by weight.

The petition also alleges that Jan's Liquors, a Missouri retail liquor establishment, sold or provided to Richard Shirley on the night of February 2, 1980, an alcoholic beverage which rendered him incapable of operating a motor vehicle.

On February 3, 1982, Ling filed a petition in the District Court of Johnson County, Kansas, seeking damages for the injuries she received which resulted in the amputation of both her legs. On July 20, 1983, the defendant filed a motion to dismiss pursuant to K.S.A. 60-212(b).

The district court granted the motion to dismiss, concluding (1) "there is no liquor vendor liability in Kansas and there is no indication that the Kansas Supreme Court will impose the same"; (2) Kansas law and not Missouri law should apply to the [237 Kan. 631] instant action; and (3) the Kansas long-arm statute would apply to give the court in personam jurisdiction in the case.

Initially, we must ascertain whether the trial court erred in finding the Kansas long-arm statute (K.S.A. 60-308[b] applied to give it in personam jurisdiction over Jan's Liquors, a nonresident defendant. The trial court based its finding on K.S.A. 60-308(b)(7), which provides:

"(b) Submitting to jurisdiction--process. Any person, whether or not a citizen or resident of this state, who in person or through an agent or instrumentality does any of the acts hereinafter enumerated, thereby submits the person and, if an individual, the individual's personal representative, to the jurisdiction of the courts of this state as to any cause of action arising from the doing of any of these acts:

....

"(7) causing to persons or property within this state any injury arising out of an act or omission outside of this state by the defendant if, at the time of the injury either (A) the defendant was engaged in solicitation or service activities within this state; or (B) products, materials or things processed, serviced or manufactured by the defendant anywhere were used or consumed within this state in the ordinary course of trade or use."

The defendant argues that this section of the Kansas long-arm statute is limited to products liability cases. We agree.

In order for personal jurisdiction to be obtained under K.S.A. 60-308(b)(7), the defendant must have had the type of contact with the state as defined in either alternative (A) or (B). In other words, the defendant must either have been engaged in solicitation or service activities within the state, or the product which was the cause of injury must have been used or consumed within the state in the ordinary course of trade or use. In Tilley v. Keller Truck & Implement Corp., 200 Kan. 641, 438 P.2d 128 (1968), this court recognized that the legislative intent of K.S.A. 60-308(b)(7) was to grant in personam jurisdiction to the courts of this state over those who engage in the manufacture, sale, or servicing of products if they receive or can anticipate some direct or indirect financial benefit from the sale, trade, use or servicing of their products within this state.

We find that the sale by an out-of-state liquor vendor to an occasional Kansas customer does not fit within the provisions of either alternative (A) or (B). Moreover, based on our analysis of legislative intent in Tilley, we find the liquor vendor is not the kind of defendant the legislature intended to reach when it [237 Kan. 632] enacted K.S.A. 60-308(b)(7). Therefore, the trial court erred by relying on K.S.A. 60-308(b)(7).

An Illinois court met with a similar factual setting and jurisdictional issue in Wimmer v. Koenigseder, 128 Ill.App.3d 157, 83 Ill.Dec. 368, 470 N.E.2d 326 (1984). In that case, the plaintiff brought suit on behalf of the decedent whose death resulted from injuries she received in a car accident in Illinois. The defendant-driver who caused the accident, a minor for purposes of Illinois law, had been served alcohol in a nearby Wisconsin tavern where he was of legal drinking age. The plaintiff brought suit in Illinois against the Wisconsin liquor vender. The trial court dismissed for lack of jurisdiction. The appellate court reversed and held,

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in part, that Illinois had in personam jurisdiction under the section of its long-arm statute which provides jurisdiction over any person who commits a "tortious act within this State." Ill.Ann.Stat. ch. 110, s2-209(a)(2) (Smith-Hurd 1983). The court stated, "For the purposes of the long-arm statute, 'physical presence is not necessary for the commission of a tortious act within this State; . . . the place of a wrong is where the last event takes place which is necessary to render the actor liable.' [Citations omitted.]" 83 Ill.Dec. at 373, 470 N.E.2d at 331. The court found the "last event" was the injury in Illinois. The fact that the sale occurred entirely in another state was of no consequence. The court further found that due process requirements of "minimum contacts" were met.

K.S.A. 60-308(b)(2) is similar to the provision relied on by the Illinois court. It provides jurisdiction over any person who commits a "tortious act within this state."

In the case at bar, the negligent act (selling liquor to a minor) was committed outside this state, while the injury occurred within this state. Therefore, in order for K.S.A. 60-308(b)(2) to apply, it must be found that an injury which occurs in this state as a result of a negligent act outside this state is equivalent to the commission of a "tortious act within the state." This is a question of first impression in Kansas.

Vernon's Kansas C.Civ.Proc. § 60-308 (1965) contains several articles discussing the Kansas long-arm statute. Each article concludes that if the injury caused by a tortious act occurs within this state, even though the first part of the tortious act took place outside the state, the occurrence of the injury is sufficient for establishing personal jurisdiction under (b)(2).

Other jurisdictions, in interpreting provisions similar to K.S.A. [237 Kan. 633] 60-308(b)(2), have given the term "tortious act" a broad interpretation, deeming it to imply the whole continuum of actions involved, rather than a single act. Vandermee v. Dist. Ct., 164 Colo. 117, 433 P.2d 335...

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