By Kenneth C. Jones
Relatives of a man killed in an accident with a drunk driver could sue the restaurant where the drunk driver had been drinking beer even though the restaurant was never convicted of providing alcohol to an intoxicated person, the Missouri Supreme Court has ruled in a 4-3 decision, reversing contrary precedent.
The relatives argued that the conviction requirement violated the Missouri Constitution's "open courts" provision.
The court agreed.
"[W]here there is an injury that is legally recognized, as the dram shop injury is recognized in section 537.053.3, the statute may not erect arbitrary or unreasonable barriers," wrote Judge Michael A. Wolff for the court. "A barrier that subjects a recognized injury to the discretion of the prosecuting attorney violates this constitutional provision."
Judge Stephen N. Limbaugh Jr., together with Ann K. Covington and Duane Benton, dissented.
Summary judgment was reversed in Kilmer, et al. v. Mun, et al., MLW No. 26412, issued on May 9.
Public Policy
"The policy outcome of this case is very good — sellers of alcohol on premises will be more careful about who they give that last drink or two to," said the plaintiffs' attorney, James G. Krispin of St. Louis.
"And all the Supreme Court did was remove one procedural bar, the requirement of conviction," Krispin said. "It left everything else, like social host immunity and package liquor sale immunity."
Regarding the Legislature's response to the opinion, Krispin said, "I don't know that they'll do anything. According to the opinion, about the only thing they could do is to say there's no more dram shop liability at all."
Russell F. Watters of St. Louis, who represented the restaurant, said, "This case will open the floodgates of litigation for anyone looking for a deep pocket.
"The elected representatives of the people set public policy when they said that consumers of alcohol, not servers, would be held responsible for drunk driving," Watters said.
"But now this case leaves us wide open to common law actions for dram shop liability."
Gerald T. Noce of St. Louis, president of the Missouri Organization of Defense Lawyers, said, "I thought the Legislature resolved this issue 15 years ago. And I suspect that their response will be to outlaw dram shop liability.
"I agree with Judge Limbaugh's dissent, especially where he notes that the majority opinion doesn't even address the issues raised in the Simpson case that is overruled, and doesn't seem compelled to recognize precedent."
Noce speculated on the practical effect of the case. "If I'm a tavern that gets sued, do I third-party in Anheuser-Busch for providing me the alcohol?"
Ronald McMillin of Jefferson City was intrigued by the make-up of the majority. "If the all-Ashcroft court still existed, this opinion would not have been written. But now there are two Carnahan appointees who were able to forge a majority on this case. They must have developed some rapport with the two Ashcroft appointees, Judges Price and Holstein, to be able to do this."
Auto Accident
Thomas Kilmer was killed in an automobile accident in February 1998 in St. Charles. The other driver, Hui Chan Mun, was later convicted of involuntary manslaughter — two hours after the accident his blood alcohol level was .13 percent.
Kilmer's family sued Mun and Stefanina's Pizzeria for wrongful death. They claimed that Stefanina's sold Mun pitchers of beer while he was "obviously" intoxicated.
At the same time the family asked the St. Charles County prosecuting attorney to charge Stefanina's with violating Sect. 311.310 RSMo, 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. The prosecutor declined to charge Stefanina's.
In the civil suit, Stefanina's was granted summary judgment, since Sect. 537.053 bars civil dram shop actions absent a conviction pursuant to Sect. 311.310. The family appealed.
Open Courts
Judge Wolff began by quoting the "open courts" provision of the Missouri Constitution's Bill of Rights, article I, section 14, which 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."
Wolff said, "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," he said, adding that its origins are in the Magna Carta.
Furthermore, he said that in the past 25 years, at least nine cases have addressed application of the open courts principle in regard to legislative enactments "affecting claims, remedies and procedures for injured persons who seek redress in court." And, according to Wolff, some of these cases "seem irreconcilable."
He referred to the first of the "modern era" cases, State ex rel. Cardinal Glennon Memorial Hosp. for Children v. Gaertner, 583 S.W.2d 107 (Mo. banc 1979), "where this Court invalidated a requirement that a medical malpractice plaintiff submit his or her claim to a professional liability board for a recommendation prior to filing a lawsuit in court.
"Even though the procedure invalidated in Cardinal Glennon did not ultimately deny access to the court, the procedural hurdle was held to be enough to violate article I, section 14."
Wolff then discussed subsequent cases, noting that such a review would "illustrate some of the inconsistencies."
Despite the inconsistencies, he said, "there is a coherent line of reasoning that can be distilled from various opinions over the years that, if followed in this and subsequent cases, will ensure that article I, section 14 retains its vitality while permitting proper deference to legislative enactments.
"Put most simply, article I, section 14 'prohibits any law that arbitrarily or unreasonably bars individuals or classes of individuals from accessing our courts in order to enforce recognized causes of action for personal injury.'
"The test of 'arbitrary or unreasonable' is an important clarification of this Court's statement in Harrell, 781 S.W.2d at 62, that the 'right of access means simply the right to pursue in the courts the causes of action the substantive law recognizes,'" said Wolff.
"A statute, as noted, may modify or abolish a cause of action that had been recognized by common law or by statute," he said. "But where a barrier is erected in seeking a remedy for a recognized injury, the question is whether it is arbitrary or unreasonable."
Wolff concluded that Sect. 537.053.3 erected an arbitrary and unreasonable barrier. He said the statute recognizes "causes of action...by or on behalf of any person who has suffered personal injury or death against any person licensed to sell intoxicating liquor by the drink for consumption on the premises...[to] an obviously intoxicated person if the sale of such intoxicating liquor is the proximate cause of the personal injury or death....
"The 'cause of action,' however, as recognized by the statute can only be asserted where the person licensed to sell intoxicating liquor has been convicted under section 311.310 (including a suspended imposition of sentence) of selling intoxicating liquor where 'the sale of such intoxicating liquor is the proximate cause of the personal injury or death....'
"If the 'certain remedy' guaranteed in article I, section 14 'for every injury to person, property or character' has any meaning, the barrier imposed by section 537.053.3 is invalid."
Simpson
"The Kilmers assert that they have suffered an injury, as recognized by section 537.053.3, because they pleaded that the death of Thomas Kilmer, their husband and father, directly resulted from the sale of intoxicating liquor to an obviously intoxicated person by defendant Stefanina's.
"But there is no certain remedy if the Kilmers' claim is entirely dependent upon whether or not the county prosecutor has prosecuted and obtained a conviction of their alleged wrongdoer for violating section 311.310 by selling intoxicating liquor to an obviously intoxicated person."
Wolff acknowledged that a prior case, Simpson v. Kilcher, 749 S.W.2d 386 (Mo. banc 1988), upheld the dram shop statute. But he said that opinion "is premised on the notion that the plaintiff's claim 'was not a legitimate one recognized by law because it was specifically prohibited by the legislature.'
"But a careful reading of the statute... shows that this is not so. There is a recognized cause of action.
"The legislature purports to eliminate dram shop liability in section 537.053.1 and 537.053.2, but in actuality it does not."
After parsing the three subsections of the statute, Wolff said "Section 537.053.3 recognizes the cause of action but makes it subject to: (1) a decision by the prosecuting attorney to bring a criminal charge under section 311.310, and (2) a conviction under section 311.310 of the seller of the intoxicating liquor. Where these conditions are met, there is a remedy if the injured party can prove that the sale was the proximate cause of the injury. But where there is no prosecution and conviction, there is no remedy.
"Whether an injured party has a remedy under section 537.053 depends entirely upon the decision of the elected county prosecuting attorney. If the county prosecuting attorney decides to prosecute, and obtains a conviction, under section 311.310, then the injured person may file a civil action under section 537.053.
"If, however, the county prosecuting attorney decides not to prosecute under section 311.310, or if the dram shop operator is not convicted in the criminal case, then the injured party has no redress for the injury that is recognized by section 537.053. The prosecutor's decision may, of course, be vulnerable to inevitable pressures of local politics or other factors unrelated to the merits, yet is wholly immune from review."
Separation Of Powers
And he noted a separation of powers issue: "In this case, a prosecuting attorney, and not the legislative branch, decides whether there is a cause of action under section 537.053.3. This provision violates separation of powers because the determination of whether a civil claim for relief exists is within the province of the legislature, or in the absence of legislative enactment, with the court as a matter of common law," he said.
"The separation of powers problem in section 537.053 can be illustrated by the following questions: Would it be permissible for a statute to delegate to the state supervisor of liquor control the duty of ascertaining which dram shop cases were the most serious in deciding which plaintiffs should have a right to pursue a claim? Or, would it be permissible to delegate the permission to bring the claim to a member of the legislative branch, for example the tavern operator's state senator? After all, if this function can be delegated to officials of the executive branch, why not to members of the legislative branch? Each of these possibilities invites arbitrary refusals of the right to pursue a claim.
"The test this Court applies is whether access to court for a recognized injury is subject to an arbitrary or unreasonable barrier. The prerequisite of a criminal conviction, in order for a plaintiff to proceed with a civil action, is as we have discussed, both arbitrary and unreasonable. Simpson is overruled," he said.
"In summary, the open courts provision is explicitly in our constitution, and though we give deference to legislative enactments, those enactments must yield to constitutional mandates. Claims for injuries are recognized by common law and by statute.
"The legislature may abolish such recognition. If the legislature had eliminated dram shop liability entirely, the Kilmer family would have no claim against defendant Stefanina's, which served liquor to defendant Hui Chan Mun when the latter allegedly was obviously intoxicated.
"But where there is an injury that is legally recognized, as the dram shop injury is recognized in section 537.053.3, the statute may not erect arbitrary or unreasonable barriers. A person who has an injury recognized by law has a constitutional right to a 'certain remedy.' A barrier that subjects a recognized injury to the discretion the prosecuting attorney violates this constitutional provision.
"The Kilmers may pursue their remedy," he concluded, reversing summary judgment.
Dissent
Judge Limbaugh dissented.
"The majority misapplies the open courts provision to afford plaintiffs a cause of action for dram shop liability that the statute does not permit, and in the process overrules Simpson v. Kilcher, 749 S.W.2d 386 (Mo. banc 1988), without giving Simpson the courtesy of addressing its compelling rationale, much less paying any consideration to the principles of stare decisis," Limbaugh said.
He concluded that the majority misapplied the open courts provision "by holding that the conviction requirement of section 537.053.3 arbitrarily and unreasonably bars individuals from accessing our courts in order to enforce the statutorily recognized cause of action for dram shop liability.
"In my view, the conviction requirement is a substantive element of the statutory cause of action rather than a procedural bar."
According to Limbaugh, the majority's separation of powers reasoning was similarly flawed: "[T]he majority is unwilling to acknowledge that the conviction requirement is a substantive element of the cause of action," he said.
"The cause of action is set entirely by the legislature, and prosecutors take no part in dictating the elements of that cause of action."
Finally, he found that even if the conviction requirement is unconstitutional, there was no cause of action. "The conviction requirement cannot be severed from section 537.053.3 so to leave the balance of the section intact, and yet severance is essential to the majority's recognition of a statutory cause of action that is not limited by the conviction requirement," he said.
"Whether the conviction requirement is a substantive element of the cause of action for dram shop liability, as I see it, or an unconstitutional procedural bar to the cause of action, as the majority sees it, the legislature made abundantly clear that the only 'recognized' cause of action is a cause of action limited by the conviction requirement.
"If the conviction requirement is unconstitutional, then there is no cause of action at all," Limbaugh said.
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(The full text of the Supreme Court's opinion in Kilmer, et al. v. Mun, et al., MLW No. 26412, is available from Missouri Lawyers Weekly — 24 pages. Call (800) 685-2147.)
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May 15, 2000
