Mills v. City of Overland Park

• Decision Date: 10 July 1992
• Docket Number: No. 66580,66580
• Citation: 837 P.2d 370,251 Kan. 434
• Parties: George Ray MILLS and Judy A. Mills, in their individual capacities, and Judy A. Mills in her capacity as Administrator of the Estate of Timothy R. Mills, Appellants, v. CITY OF OVERLAND PARK, Kansas; Overland Park Police Officer Huffman; Overland Park Police Officer Moore; Overland Park Police Chief Scafe; Kansas City Soccer Concession Corp., a Kansas Corporation; Kansas City Indoor Soccer Partnership, a Missouri Limited Partnership; Thomas H. Twellman; Michael Needleman; David L. Sherman; and Jill E. Masiero, Appellees.
• Court: Kansas Supreme Court

Page 370

837 P.2d 370

251 Kan. 434

George Ray MILLS and Judy A. Mills, in their individual capacities, and Judy A. Mills in her capacity as Administrator of the Estate of Timothy R. Mills, Appellants, v. CITY OF OVERLAND PARK, Kansas; Overland Park Police Officer Huffman; Overland Park Police Officer Moore; Overland Park Police Chief Scafe; Kansas City Soccer Concession Corp., a Kansas Corporation; Kansas City Indoor Soccer Partnership a Missouri Limited Partnership; Thomas H. Twellman Michael Needleman; David L. Sherman; and Jill E. Masiero, Appellees.

No. 66580.

Supreme Court of Kansas.

July 10, 1992.

Syllabus by the Court

1. Summary judgment is proper where the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.

2. K.S.A. 41-715, which prohibits the dispensing of alcoholic liquors to certain classes of people, was intended to regulate the sale of liquor and was not intended to impose civil liability.

3. K.S.A. 21-3610 (Ensley 1981), which prohibited the sale or furnishing of intoxicants (now alcoholic liquor) to a minor, is considered and held not to have been intended to impose civil liability for injuries or death sustained by a minor as a result of having become intoxicated.

4. A tort is a violation of a duty imposed by law.

5. As a general rule, the duty of a law enforcement officer to preserve the peace is a duty owed to the public at large. Absent some special relationship with or specific duty owed an individual, liability will not lie for damages.

6. No cause of action based upon tort for failure to take the intoxicated person into custody under the circumstances herein exists, and summary judgment was properly entered in favor of the governmental defendants.

Timothy P. Orrick, of Holbrook, Heaven & Fay, P.A., Kansas City, argued the cause, and Thomas M. Sutherland, of the same firm, was with him on the briefs, for appellants.

Michael M. Shultz, Associate Professor of Law, University of Missouri-Kansas City School of Law, Kansas City, Mo., argued the cause, and Daniel B. Denk, of McAnany, Van Cleave & Phillips, P.A., Kansas City, Deryl W. Wynn, of the same firm, Robert J. Watson, City Atty., and Michael R. Santos, Asst. City Atty., were with him on the briefs, for appellees City of Overland Park, officers Huffman and Moore, and Police Chief Scafe.

Howard D. Lay, of Dysart Taylor Penner Lay & Lewandowski, P.C., Kansas City, Mo., argued the cause, and Roger W. Penner, of the same firm, was with him on the briefs, for appellees Kansas City Soccer Concession Corp., Kansas City Indoor Soccer Partnership, Thomas H. Twellman, Michael Needleman, David L. Sherman, and Jill E. Masiero.

James L. Eisenbrandt, of Bryan Cave, Leawood, was on the brief, for amicus curiae Kansas Ass'n of Chiefs of Police.

James M. Kaup, Topeka, was on the brief, for amicus curiae League of Kansas Municipalities.

McFARLAND, Justice:

This is a wrongful death and survivorship action seeking damages arising from the death of Timothy R. Mills. The district court granted summary judgment in favor of the defendants, and plaintiffs appeal therefrom.

The facts may be summarized as follows. Timothy Mills was 19 years old at the time of the events in issue. On the afternoon of December 26, 1987, he and his friend Tom Tracy met and began drinking. They first went to the Shawnee Village Bowl, then drove around awhile drinking beer and wine coolers purchased from liquor stores.

At about 8:00 p.m., they went to Just for Kicks, an indoor soccer stadium. Mills purchased and consumed substantial quantities of alcoholic liquors and cereal malt beverages at the establishment's bar. Mills became disruptive and was escorted from the bar. He returned and some type of disturbance occurred. The bartender called the Overland Park Police Department for assistance.

Officer Huffman was the first on the scene. At this time, Mills was standing alone on the sidewalk in front of the facility. Mills advised the officer who he was and that he was 19 years old. No disturbance or confrontational incident occurred in the officer's presence. The weather was cold. Much ice was present and there was a freezing mist. Mills was wearing jeans, cowboy boots, and a flannel shirt. He did not have a coat. Two other officers had arrived--Cauley and Moore.

After conferring with members of the Just for Kicks staff, Huffman announced no charges were to be filed and Mills was free to go. Mills walked from the establishment into a field toward an industrial development. He was found frozen to death in a drainage ditch behind a building in the area the next morning. Other background facts will be set forth as needed for the discussion of particular issues.

This action was brought by Mills' parents and personal representative seeking damages against Just for Kicks, certain of its employees and a related entity for having sold alcoholic beverages to Mills, and against the City of Overland Park and certain police officers for having failed to take Mills into custody when he was incapacitated by alcohol and improperly dressed for the current weather conditions. The district court entered summary judgment in favor of all defendants, and the plaintiffs appeal therefrom.

Summary judgment is proper where the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. When a summary judgment is challenged on appeal, an appellate court must read the record in the light most favorable to the party who defended against the motion for summary judgment. Patterson v. Brouhard, 246 Kan. 700, 702-03, 792 P.2d 983 (1990); Mick v. Mani, 244 Kan. 81, 83, 766 P.2d 147 (1988). See Ebert v. Mussett, 214 Kan. 62, 65, 519 P.2d 687 (1974); Lawrence v. Deemy, 204 Kan. 299, 301-02, 461 P.2d 770 (1969); Brick v. City of Wichita, 195 Kan. 206, Syl. p 1, 403 P.2d 964 (1965); Moody Investments, Inc. v. Baldwin, 12 Kan.App.2d 686, 688-89, 754 P.2d 810, rev. denied 243 Kan. 779 (1988); K.S.A.1991 Supp. 60-256(c).

If factual issues do exist, they must be material to the case to preclude summary judgment. Bacon v. Mercy Hosp. of Ft. Scott, 243 Kan. 303, 307, 756 P.2d 416 (1988). There is no claim that disputed factual issues as to any material fact barred the entry of summary judgment herein.

LIABILITY BASED ON THE SELLING OF THE ALCOHOLIC BEVERAGES

The first issue concerns the propriety of the district court's entry of summary judgment in favor of Just for Kicks, its employees, and related entities. The district court held:

"1. The question of the liability of one furnishing intoxicating liquor to a minor for injuries caused by the minor's intoxication has been decided by the Kansas Supreme Court in Ling v. Jan's Liquors, 237 Kan. 629, 703 P.2d 731 (1985). The answer is an unequivocal 'no.' The decision was reaffirmed by the Supreme Court in Fudge v. City of Kansas City, 239 Kan. 369, 720 P.2d 1093 (1986), and Thies v. Cooper, 243 Kan. 149, 753 P.2d 1280 (1988)."

The bulk of the parties' arguments go to propriety of the Ling v. Jan's Liquors, 237 Kan. 629, 703 P.2d 731 (1985), decision. Ling involved a factual situation where a minor (Shirley) was sold alcohol in Missouri, drove his automobile into Kansas while intoxicated, and then struck a pedestrian, Lyllis Ling. The action was brought in Kansas, where the injury occurred, against the Missouri liquor store for having sold the alcohol. Much of the decision concerned the applicability of the Kansas long arm statute (K.S.A. 60-308), in conferring jurisdiction to Kansas, which has no relevance herein.

Ling is significantly different from the case before us in another respect. In Ling, a person injured by a tort committed by the intoxicated person was seeking recovery against the purveyor of the alcohol. Such third-party liability did not exist at common law and, where it does exist in this country, it is through enactment of what are known as civil liability or dram shop acts. Missouri has a dram shop act. Kansas does not. We held:

"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." 237 Kan. 629, Syl. p 3, 703 P.2d 731.

As we observed in Ling:

"Although empowered to change the common law in light of changed conditions, this court recognizes that declaration of public policy is normally the function of the legislative branch of government. Whether Kansas should abandon the old common-law rule and align itself with the new trend of cases which impose civil liability upon vendors of alcoholic beverages for the torts of their inebriated patrons depends ultimately upon what best serves the societal interest and need. Clearly, this is a matter of public policy which the legislature is best equipped to handle." 237 Kan. at 640, 703 P.2d 731.

In the case before us, recovery is not sought by a person injured by a tort of the inebriated person but is predicated on the death of the inebriated person himself. Thus, the dram shop legal concept is not involved herein.

One aspect of Ling is of particular significance herein, however. In Ling, liability was also sought under K.S.A. 41-715, which provides:

"(a) No person shall knowingly sell, give away, dispose of, exchange or deliver, or permit the sale, gift or procuring of any alcoholic liquor to or for any person who is an incapacitated person, or any person who is...