Nokes v. HMS Host USA, LLC

• Decision Date: 13 September 2011
• Docket Number: Nos. WD 73055,WD 73056.,s. WD 73055
• Citation: 353 S.W.3d 6
• Parties: Lester NOKES, Appellant,Norma Robinson, Tony Gutierrez, Jackson Gutierrez and Eustolio Gutierrez, Appellants, v. HMS HOST USA, LLC, HMS Host Corporation, Host International, Inc., LJA Enterprises, Inc., Respondents.
• Court: Missouri Court of Appeals

353 S.W.3d 6

Lester NOKES, Appellant,Norma Robinson, Tony Gutierrez, Jackson Gutierrez and Eustolio Gutierrez, Appellants,

v.HMS HOST USA, LLC, HMS Host Corporation, Host International, Inc., LJA Enterprises, Inc., Respondents.

Nos. WD 73055

WD 73056.

Missouri Court of Appeals, Western District.

Sept. 13, 2011.Motion for Rehearing and/or Transfer to

Supreme Court Denied Nov. 1, 2011.

Application for Transfer Denied

Dec. 20, 2011.

Randall L. Rhodes, Bradley D. Kuhlman, and Chad C. Lucas, Kansas City, MO, for appellants.

Paul L. Wickens and Robert Harold Houske, Kansas City, MO, for respondents.

Special Panel: JAMES M. SMART, JR., P.J., JAMES E. WELSH, J., and ZEL M. FISCHER, Sp.J.

ZEL M. FISCHER, Special Judge.

The families of Sandra Nokes and Diana Gutierrez (“Nokes”) appeal the Jackson County circuit court's entry of summary judgment in favor of HMS Host USA, LLC, HMS Host Corporation, Host International, Inc., and LJA Enterprises, Inc. (“Host defendants”) in a consolidated action for dram shop liability under § 537.053, RSMo Supp.2006.¹ The issue on appeal is whether Nokes presents sufficient evidence to create a genuine issue of material fact as to whether the Host defendants knowingly served alcohol to a visibly intoxicated person. The judgments against HMS Host USA, LLC and HMS Host Corporation are affirmed. The judgments against Host International, Inc. and LJA Enterprises, Inc. are reversed.

Facts

Viewed in the light most favorable to Nokes, the record reflects the following facts.² Jeffrey Chiarelli was in an automobile collision while driving through Texas at approximately 9:42 PM on January 18, 2007. The collision killed Sandra Nokes and Diana Gutierrez, passengers in the other vehicle, and injured Eustolio Gutierrez, the other driver. The victims of the collision, including the families of Sandra Nokes and Diana Gutierrez, filed a petition alleging dram shop liability based on § 537.053 against the owners of the Bud Stadium Club (“Stadium Club”), a restaurant in the Kansas City International Airport, which served intoxicating liquor to Chiarelli earlier that day.

Host International, Inc., and LJA Enterprises, Inc., owned the Stadium Club and held its liquor license through a joint venture on January 18, 2007. HMS Host Corporation owns Host International, Inc., and HMS Host USA, LLC, a company formed on April 17, 2007, three months after the day of the accident.

The accident occurred while Chiarelli was returning home from the Dallas–Fort Worth airport after flying from Kansas City, Missouri. Before boarding his flight in Kansas City, Chiarelli visited the Stadium Club, where he consumed four “double” Maker's Mark® cocktails with a splash of coke. A drink receipt indicates that the Stadium Club served these drinks between approximately 4:34 PM and 6:22 PM. Chiarelli had nothing to drink prior to arriving at the Stadium Club but recalls drinking one Crown Royal® cocktail while on the airplane between approximately 7:30 PM and 7:45 PM. No one at the restaurant or in the airport recalls seeing Chiarelli.

After the collision, the responding police officer noted that Chiarelli had slurred speech and the smell of alcohol on his breath. The police report indicates that Chiarelli's speech was “slurred,” his eyes were “red,” “bloodshot,” and “watered,” and the odor of alcohol on his person was “strong.” Chiarelli failed the field sobriety test of the responding officer, who believed that Chiarelli was “intoxicated and not capable of safely operating a motor vehicle.” Chiarelli's blood alcohol concentration level was .169% according to the results of blood tests conducted at 11:20 PM, approximately four and one half hours after he left the Stadium Club.

Nokes presents deposition testimony of toxicologist Dr. Gary Wimbish. According to Dr. Wimbish, each of the “doubles” that Chiarelli drank contained 3.5 ounces of Maker's Mark® whiskey, rather than the standard two ounces. He opined that Chiarelli's blood alcohol concentration level would have been approximately .10% when he ordered his second cocktail, .15% when he ordered his third, and between .175% and .18% when he ordered his fourth. Dr. Wimbish testified that Chiarelli would have begun showing significantly uncoordinated physical action or significant physical dysfunction before ordering his second drink, including a noticeable change in facial appearance, change in demeanor and attitude, release of inhibitions, loss of judgment, and a “loss of the fine sense of intellect.” Wimbish further testified, “Chiarelli would have demonstrated obvious signs of the effects of alcohol where it was clear to anyone—any trained observer that he would have the observable signs of the effects of alcohol....”

Handmark, Inc., Chiarelli's employer and previous defendant in this suit, had presented the deposition testimony of Dr. Klaassen, who agreed that if Chiarelli drank four cocktails at the Stadium Club, each containing 3.5 ounces of Maker's Mark®, he would have had significant physical dysfunction and motor discoordination. Dr. Klaassen also stated that, given those circumstances, anyone paying attention would have seen that Chiarelli was drunk at the Stadium Club. Even Dr. Pape, as a Ph.D in entomology and HMS Host's retained expert, testified that most social drinkers are visibly intoxicated at a blood alcohol concentration level of .151%.

Nokes brought an action claiming that Host defendants are liable for damages under Missouri dram shop statute, § 537.053. The circuit court entered summary judgment in favor of all of the Host defendants and against Nokes.

Standard of Review

Summary judgment should be granted only if the movant establishes that there is no genuine issue as to the material facts and that the movant is entitled to a judgment as a matter of law. Rule 74.04(c)(6); ITT Commercial Fin. Corp. v. Mid–America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). Facts asserted by the moving party are accepted “as true unless contradicted by the non-moving party's response to the summary judgment motion.” Goerlitz v. City of Maryville, 333 S.W.3d 450, 453 (Mo. banc 2011) (quoting ITT Commercial Fin. Corp., 854 S.W.2d at 376). When considering appeals from summary judgment, the court reviews the record in the light most favorable to the party against whom the judgment was entered. ITT Commercial Fin. Corp., 854 S.W.2d at 376.³ “Only genuine disputes as to material facts preclude summary judgment.” Goerlitz, 333 S.W.3d at 453. “A material fact ... is one from which the right of judgment flows.” Id. Rule 74.04(e) requires that affidavits or deposition testimony supporting or opposing summary judgment be admissible in evidence.⁴ A movant may show entitlement to summary judgment by demonstrating that the non-movant has not and cannot produce sufficient evidence to allow the trier of fact to find the existence of any one of the elements of the non-movant's cause of action. Id. “If, as a matter of law, the circuit court's judgment is sustainable on any theory, it should be affirmed on appeal.” Id. However, at summary judgment, the court does not test the weight of evidence, only whether there is a genuine issue of material fact. ITT Commercial Fin. Corp., 854 S.W.2d at 378.

Analysis

Missouri's dram shop statute, § 537.053, provides the exclusive remedy for third persons injured as a result of the sale of liquor to an intoxicated driver. Auto Owners Mut. Ins. Co. v. Sugar Creek Mem. Post No. 3976, 123 S.W.3d 183, 191 (Mo.App.2003). All parties to this case and amici curiae⁵ proffer to this court policy arguments and competing rules of statutory construction, which may support a ruling in their favor. “[But the] [c]ourt's primary rule of statutory interpretation is to give effect to legislative intent reflected in the plain language of the statute.” Parktown Imports, Inc. v. Audi of America, Inc., 278 S.W.3d 670, 672 (Mo. banc 2009). This court will make a “genuine effort to determine what the legislature intended” from the actual words of a statute and will not engage in “judicial side-stepping of the legislature's clear intent.” Id. at 672–673. “Other rules of statutory interpretation, which are diverse and sometimes conflict, are merely aides that allow this [c]ourt to ascertain the legislature's intended result.” Id. “[T]his [c]ourt need not apply the canons of interpretation or seek aids to interpret a statute when a statute is easily read and understood.” Turner v. Sch. Dist. of Clayton, 318 S.W.3d 660, 669 (Mo. banc 2010); see also State v. Rowe, 63 S.W.3d 647, 649 (Mo. banc 2002). The current dram shop statute is clear on its face, and the legislature's intent is clearly reflected by its plain language.⁶

The current dram shop statute has three elements. The claim must be brought (1) “by or on behalf of any person who has suffered personal injury or death ...” against a (2) “person licensed to sell intoxicating liquor by the drink for consumption on the premises ...” and demonstrated by clear and convincing evidence that the person (3) “knowingly served intoxicating liquor to a visibly intoxicated person ...” Section 537.053(2).⁷

The issues raised in this appeal do not concern the first element of the dram shop statute regarding whether the appellants are the proper parties to bring the claims presented.

A dram shop claimant must show that the claim is brought against a “person licensed to sell intoxicating liquor by the drink for consumption on the premises.” Section 537.053(2). The record reflects that the named defendants who are licensed to sell intoxicating liquor by the drink for consumption on the premises are Host International, Inc., and LJA Enterprises, Inc. Therefore, the circuit court's grant of summary judgment in favor of HMS Host USA, LLC and HMS Host Corporation are affirmed.

The dram shop statute's requirement of clear and convincing evidence is the standard of proof for weighing the evidence at trial, and its...