Elliot v. Kesler

• Decision Date: 14 August 1990
• Docket Number: No. WD,WD
• Citation: 799 S.W.2d 97
• Parties: Kristi Lynn ELLIOT, et al., Respondents, v. James D. KESLER, Defendant, Brunswick Corporation, Appellant. 41572.
• Court: Missouri Court of Appeals

Page 97

799 S.W.2d 97

Kristi Lynn ELLIOT, et al., Respondents, v. James D. KESLER, Defendant Brunswick Corporation, Appellant.

No. WD 41572.

Missouri Court of Appeals,

Western District.

Aug. 14, 1990.

Motion for Rehearing and/or Transfer

to Supreme Court Denied

Oct. 2 and Oct. 30, 1990.

Application to Transfer Denied Dec. 18, 1990.

Terry Lynn Karnaze, Kansas City, for appellant.

Frederick J. Wilkins, Kansas City, for respondents.

Before NUGENT, C.J., FENNER, J., and WASSERSTROM, Senior Judge.

FENNER, Judge.

Appellant, Brunswick Corporation appeals from an adverse judgment against it and defendant James D. Kesler, upon a jury verdict in favor of respondents, in the amount of 2.75 million dollars. Respondents brought this wrongful death action as the survivors of Andra McAlister. Respondents were plaintiffs at trial and are hereinafter referred to as plaintiffs.

On Friday, April 12, 1985, James Kesler, 23 years old at the time, arrived, at approximately 10:00 p.m., at Gladstone Bowl, a bowling alley owned by appellant. Kesler had previously been drinking at a bar, by the name of Donovan's, from about 4:30 p.m., that same day.

Roberta Goff was the counter control attendant and assistant manager on duty at Gladstone Bowl on the night of April 12, 1985. Kesler was a regular Friday night bowler and Goff noticed that he was an hour late on the night in question. Goff also observed that Kesler "had enough to drink" when he arrived at the bowling alley.

Goff observed Kesler attempting to bowl. Kesler could not control the ball, he was stumbling and falling as he attempted to bowl. There was evidence, which will be discussed more specifically later, that Kesler was served a couple of drinks at the bowling alley and then cut off because he was already drunk. After being at the bowling alley for approximately 45 minutes, Kesler stopped bowling, took off his shoes and walked past the control counter, waving at Goff as he went out the door. Goff admitted that Kesler appeared drunk and unfit to drive as he went out the door.

A few minutes after Kesler left the bowling alley he returned and approached the control counter. Kesler told Goff that he had locked his keys in his car and needed a coat hanger to unlock the door. At trial, Goff testified that there was a man with Kesler when he returned to the bowling center and she assumed the other man would help him. She also testified that Kesler told her he needed to get in his car because he left his lights on. In her deposition testimony, Goff testified that she knew Kesler intended to drive when he asked for the coat hanger. Goff handed Kesler a coat hanger from a coat rack near the control counter and he left. The coat rack was available for use by patrons of the bowling alley.

A short time later, at approximately 11:00 p.m., Kesler was involved in a head on collision with an automobile driven by Andra McAlister. Kesler was rounding a curve when he crossed the center line colliding with Andra McAlister's vehicle. Andra McAlister died from injuries she received in the accident.

It was apparent to police officers at the scene of the accident that Kesler was intoxicated. A blood sample drawn approximately two hours after the accident revealed that Kesler's blood alcohol content was .27 percent at that time.

Plaintiffs filed a wrongful death action, under § 537.080, ¹ against Kesler and Brunswick. Plaintiffs asserted two theories of liability against Brunswick. First, plaintiffs alleged negligence in selling and supplying alcoholic beverages to Kesler with knowledge that he was intoxicated. Second, plaintiffs alleged negligence in assisting Kesler to gain access to his car and car keys by supplying him with a coat hanger knowing that he was unfit to drive. The jury was instructed on both theories and further instructed to consider aggravating circumstances when assessing damages. The jury returned a verdict of 2.75 million dollars against Brunswick and Kesler. Kesler was found 60 percent at fault and Brunswick 40 percent. Only Brunswick appeals.

In reviewing a judgment based upon a jury verdict in a civil action, an appellate court considers the evidence in the light most favorable to the prevailing party, giving that party the benefit of all favorable inferences reasonably drawn from all of the evidence. Hansome v. Northwestern Cooperage Co., 679 S.W.2d 273, 274 (Mo. banc 1984). Further, the reviewing court must disregard the appellant's evidence unless it supports the verdict. Id. In an action under § 537.080, the plaintiffs must establish by a preponderance of the evidence that the defendant's wrongful act caused the decedent's death, the standard of proof required in all civil actions. Contestible v. Brookshire, 355 S.W.2d 36, 40 (Mo.1962).

I.

In their first point on appeal, Brunswick argues that the trial court erred in submitting plaintiffs' claim that Brunswick negligently assisted Kesler in gaining access to his car by providing him with a coat hanger.

The parties have not cited, nor do we find, a case where Missouri has recognized a cause of action for negligent assistance of a drunk driver. Plaintiffs argue that general theories of negligence support their claim for negligent assistance, while Brunswick argues that it is established public policy in Missouri not to impose liability on third parties for the torts of drunk drivers.

Actionable negligence consists of a duty owed by the defendant to the plaintiff, a breach of that duty by the defendant, and an injury to the plaintiff which is caused by the breach of the duty. Madden v. C & K Barbecue Carryout, Inc., 758 S.W.2d 59, 61 (Mo. banc 1988).

The question here is whether Brunswick owed a duty to plaintiffs' decedent to not assist Kesler in gaining access to his car and car keys when Brunswick knew or should have known that Kesler was too intoxicated to drive, and whether the breach of such duty proximately caused the injury inflicted. An analysis of the development of Missouri law in regard to the liability of tavern owners for injuries to third persons by intoxicated patrons shows the public policy of Missouri on this question.

The common law rule is that a tavern owner can not be held liable for injuries to third persons which were caused by an intoxicated person. Carver v. Schafer, 647 S.W.2d 570, 572 (Mo.App.1983). In 1934, the General Assembly repealed Missouri's dramshop act which had provided a civil remedy against dramshop owners for injuries caused by their intoxicated patrons. § 4487, RSMo 1929 (repealed 1933-34 Laws of Missouri, 77). The repeal of the dramshop act restored questions of dramshop liability to the arena of common law.

From 1934 to 1980, no cause of action existed in Missouri against one who furnished alcohol to a person who became voluntarily intoxicated and injured another. In 1980, this court handed down its decision in Sampson v. W.F. Enterprises, Inc., 611 S.W.2d 333 (Mo.App.1980). Sampson recognized, for the first time, a common law form of dramshop liability for serving intoxicants to a minor who later injured himself. In 1981, Sampson's holding was extended to claims by injured third parties. Nesbitt v. Westport Square, Ltd., 624 S.W.2d 519 (Mo.App.1981). In 1983, the Missouri Court of Appeals, Eastern District, relied on Sampson and Nesbitt to find a duty in tavern owners to refrain from serving intoxicated patrons and impose liability for injuries resulting from a breach of that duty. Carver v. Schafer, 647 S.W.2d 570 (Mo.App.1983).

In Carver the court found that § 311.310, which makes it a misdemeanor to "sell, vend, give away or otherwise supply any intoxicating liquor ... to any person intoxicated or appearing to be intoxicated ..." was indicative of Missouri public policy. Id. at 575. The court reasoned that under the general law of torts, "[e]very person is required to take ordinary care against injuries reasonably to be anticipated," and that the public policy of Missouri "is expressed even more fundamentally in the law of torts." Id. at 575. The court determined that "the well-documented foreseeability of accidents caused by drunken drivers and the statutory policy expressed in § 311.310", justified the extension of liability under common law concepts to tavern owners who serve intoxicated patrons. Id. at 575.

On June 28, 1985, the Missouri Court of Appeals handed down the case of Harriman v. Smith, 697 S.W.2d 219 (Mo.App.1985), holding that a social host could not be held liable for contributing to the intoxication of a minor whose driving led to a fatal accident. The court reasoned that although the principles of common law negligence could be extended to impose a duty on a social host, that the legislature and not the court should be the determinate of any such duty and its parameters. The court stated that "[t]he legislature is better equipped to deal with myriad considerations. The political machinery of the legislature has the requisite sophisticated tools for gathering data, conducting studies, receiving public opinion, and, finally, implementing the policy in carefully expressed and well-defined legislation." The court expressed concern with, among other considerations, the recognition of intoxication, the predictability of the conduct of an intoxicated person and the imposition of a duty of inquiry.

Shortly thereafter, the Missouri legislature responded to the pronouncement of the public policy of Missouri by the court in Carver, Sampson and Nesbitt by the passage of § 537.053, RSMo 1986 (effective September 28, 1985), which expressly abrogated the holding of those cases. Additionally, § 537.053.2 provides that "the consumption of alcoholic beverages, rather than the furnishing of alcoholic beverages, [is] the proximate cause of injuries inflicted upon another by an intoxicated person."

In Lambing v. Southland Corp., 739 S.W.2d 717 (Mo. banc 1987), the Missouri Supreme Court relied on the passage of and policy expressed in § 537.053...