Can A Bar Be Held Responsible For Over-Serving An Intoxicated Patron?
Sometimes the black letter law passed by the legislature is unclear. The legislature can’t anticipate every possible fact scenario when they pass a law, so it lay to the courts to interpret the law and give guidance to what it means. This interpretation is called case law. When the court decides a certain meeting to the law it essentially answers a legal question. Lawyers and other courts then can rely on that ruling when they have a similar issue in their case. The following case answers the question above.
Noone v. Chalet of Wichita, LLC, 32 Kan. App. 2d 1230, 96 P.3d 674 (2004).
This case addresses the following issue:
Can a bar be held responsible for over-serving an intoxicated patron?
In most states, a bar or restaurant that provides alcohol to an already intoxicated person can face liability for accidents caused by that individual—so called “dram shop liability.” Id. at. 1239. Some states even impose liability on non-commercial hosts, such as fraternities that host parties. Id. However, Kansas is one of the few states that does not have a statute creating liability for overserving, either for a commercial or non-commercial host. Id. In this case, the Plaintiff asked the court to determine if Kansas common law—non-statutory law developed by decisions of the courts—imposed such liability. Id. at 1230. The Kansas Court of Appeals held that no such liability exists, though it announced that the lack of such liability was “bad public policy” for the state. Id. at 1239. However, because a prior decision of the Kansas Supreme Court was controlling of this issue, either the Kansas Legislature or Kansas Supreme Court would have to change this negative policy. Id.
Plaintiff in this case was the estate of a deceased young man that had been killed by a drunk driver. Id. at 1231. The drunk driver had been served four very large beers in a short period of time at Defendant’s bar in Wichita. Id. The driver was speeding and swerving just before he struck the vehicle carrying the young man. Id. Both cars burst into flames, killing the young man. Id. Plaintiff brought a claim against the drunk driver and Defendant. Id. Plaintiff’s theory of recovery against Defendant was that Defendant, as a commercial seller of liquor by the drink, was careless in overserving the driver. Id.
Prior to this case, the Kansas Supreme Court had determined that Kansas law did not recognize liability for selling alcohol to a minor that later injures another (in Ling v. Jan’s Liquors, 237 Kan. 629, 703 P.2d 731 (1985) and that no liability is recognized for “social hosts” that overserve at parties (in Prime v. Beta Gamma Chapter of Pi Kappa Alpha, 273 Kan. 828, 47 P.3d 402 (2002)). Id. at 1233-35. The case here, however, Plaintiff argued to be different. Id. at 1233. This was a commercial seller of liquor by the drink, rather than a liquor store or non-commercial seller. Id. Plaintiff argued that this drink-by-drink selling created liability, because—unlike a liquor store that sells a large quantity all at once without any knowledge of when or how it will be consumed—a drink-by-drink seller can cut-off a patron once intoxication has set in. Id. at 1232.
The court found that this distinction, though appealing, was contrary to past decisions of the Kansas Supreme Court. Id. at 1235. Each and every time the issue of dram shop liability had been presented to the Kansas high court, in any form, such liability had been rejected. Id. Instead, the court had continually placed the ball in the legislature’s court, stating that dram shop liability was unavailable at common law, but could easily be created by statute. Id. at 1236. However, the Kansas Legislature never took up that challenged. Id. Though the court in this case made no qualms about how good it thought such liability would be for the state, it did not have the power to override the decisions of the Kansas Supreme Court and certainly could not make statutory liability where the legislature had not. Id. at 1239. Thus, Plaintiff could not maintain a lawsuit against Defendant on that theory of liability. Id.
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