Kilmer, v. Mun, Stefanina's Pizza & Restaurant, Inc.
| Decision Date | 09 May 2000 |
| Citation | 17 S.W.3d 545 |
| Court | Missouri Supreme Court |
| Parties | (Mo.banc 2000) . 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. Case Number: SC81853 Supreme Court of Missouri Handdown Date: 0 |
Appeal From: Circuit Court of St. Charles County, Hon. Ellsworth Cundiff
Counsel for Appellant: James G. Krispin
Counsel for Respondent: T. Michael Ward, Russell F. Watters, Amy L. Klingemann and Robert J. Wulff
Opinion Summary:
Thomas Kilmer's family brought this wrongful death action against a drunk driver who hit Kilmer and against Stefanina's, the restaurant that served the driver beer after he allegedly was obviously intoxicated. Section 537.053.3 authorizes an action against a liquor licensee whose sale of alcohol to an obviously intoxicated person is the proximate cause of injury or death, but only where the licensee has been convicted or received a suspended imposition of sentence for violating section 311.310 by providing liquor to an intoxicated person. The prosecuting attorney declined to charge the restaurant under section 311.310. Because section 537.053 bars civil dram shop actions absent a conviction pursuant to section 311.310, the trial court granted summary judgment. The Kilmers appeal.
REVERSED AND REMANDED.
Court en banc holds:
The statutory restriction violates the "open courts" provision of the Missouri Constitution's Bill of Rights, article I, section 14, which protects the Kilmers' right to pursue a remedy for a legally recognized injury.
This case presents the question of whether the "open courts" provision states a constitutional right or merely an ideal to which our system aspires. Since its inception, the provision has twice been strengthened, making it mandatory. This Court's line of cases ensures the provision's vitality while permitting deference to legislation. It prohibits laws that arbitrarily or unreasonably bar access to enforce recognized causes of action for personal injury. Where a barrier is erected in seeking a remedy for a recognized injury, the question is whether it is arbitrary or unreasonable.
Section 537.053 erects an arbitrary, unreasonable barrier. Here, the prosecuting attorney, not the legislative branch, decides whether there is a cause of action under section 537.053.3, violating the separation of powers. Simpson, upholding the statute, is overruled. If the legislature had eliminated dram shop liability entirely, the Kilmers would have no claim against the restaurant. But where the injury is recognized, as here, a person who has such an injury has a constitutional right to a "certain remedy." A barrier that subjects a recognized injury to the prosecuting attorney's discretion violates the "open courts" constitutional provision.
Accordingly, the portion of the statute requiring a criminal conviction as a prerequisite to bringing suit is severed. Section 1.140 requires preservation of the nonoffending portions unless the legislature would not have enacted the valid provisions without it, but the legislature enacted dram shop liability in section 537.053.3, so it would be wrong to assume otherwise. This Court leaves it to the legislature to decide whether the statute, as it remains, should be retained, repealed or modified in some constitutionally appropriate manner.
Dissenting opinion summary:
The dissenting opinion would not hold the conviction requirement of section 537.063.3 unconstitutional. Specifically, the dissenting opinion states that the majority misapplies the open courts provision in holding that the conviction requirement arbitrarily and unreasonably bars individuals from accessing courts, and the majority overrules Simpson without addressing its rationale or considering stare decisis principles.
The dissenting opinion reasons that the conviction requirement is a substantive element of the cause of action rather than a procedural bar. According to the statute, it is an element of the offense, and it is not dependent on any procedural requirement that the plaintiff must satisfy. To confine liability to those cases where conduct is so flagrant that it becomes objectively provable by criminal conviction provides a rational basis for that element. The dissenting opinion also finds the secondary issues regarding separation of powers and equal protection unpersuasive, finding no legislative delegation of power.
Assuming the conviction requirement were unconstitutional, the dissenting opinion would hold the requirement cannot be severed yet leave the balance of the statute intact. The dissent would hold that the valid provisions of section 537.053.3 () are so essentially and inseparably connected with, and so dependent upon, the void provision (the conviction requirement), that it cannot be presumed the legislature would have enacted the valid provisions without the void one, and further, that the valid provisions of section 537.053.3, standing alone, are incomplete and incapable of being executed in accordance with legislative intent.
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 section 537.053.31, which authorizes a cause of action against a liquor licensee where the sale of alcoholic beverages to an obviously intoxicated person is the proximate cause of injury or death. However, section 537.053.3 only authorizes a claim where the liquor licensee has been convicted or has received a suspended imposition of sentence for violating section 311.310 by providing liquor to an intoxicated person. Because the prosecuting attorney declined to charge Stefanina's, the trial court granted the restaurant's motion for summary judgment. The judge designated the summary judgment in favor of Stefanina's as final for purposes of appeal.
The Kilmers appealed to this Court challenging the constitutionality of the statutory restriction that requires a conviction in order to maintain a claim under section 537.073.3. We have jurisdiction. Mo. Const. art. V, sec. 3.
We hold that the statutory restriction violates the "open courts" provision of the Missouri Constitution's Bill of Rights, article I, section 14, which protects the Kilmers' right to pursue a remedy for a legally recognized injury. We reverse and remand for further proceedings consistent with this opinion.
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 allegedly 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 section 311.3103 which makes it a misdemeanor to serve alcohol to "any person intoxicated or appearing to be in a state of intoxication" by an establishment that is licensed to sell liquor by the drink. Family members requested a criminal charge because they wanted to bring a civil action against Stefanina's under section 537.053.4 Without a conviction or suspended imposition of sentence of Stefanina's under section 311.310, an action for damages is barred by section 537.053. The prosecutor declined to charge Stefanina's.
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 section 537.053 bars civil dram shop actions absent a conviction pursuant to section 311.310.
The Missouri Constitution's Bill of Rights, article I, section 14, provides: "That the courts of justice shall be open to every person, and certain remedy afforded for every injury to person, property or character, and that right and justice shall be administered without sale, denial or delay."
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...
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