Ling v. Jan's Liquors

703 P.2d 731, 237 Kan. 629, 1985 Kan. LEXIS 429
CourtSupreme Court of Kansas
DecidedJuly 17, 1985
Docket56,921
StatusPublished
Cited by221 cases

This text of 703 P.2d 731 (Ling v. Jan's Liquors) is published on Counsel Stack Legal Research, covering Supreme Court of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ling v. Jan's Liquors, 703 P.2d 731, 237 Kan. 629, 1985 Kan. LEXIS 429 (kan 1985).

Opinions

[630]*630The opinion of the court was delivered by

Schroeder, C.J.:

Lyllis Ling (plaintiff-appellant) brought this action in the trial court alleging negligence on the part of Jan’s Liquors (defendant-appellee) in selling alcohol to a minor whose intoxication allegedly resulted in a car accident causing plaintiff s injury. Ling appeals from an order and judgment dismissing her complaint against defendant on the ground that it fails to state a claim upon which relief can be granted pursuant to K.S.A. 60-212(b). We affirm the decision of the trial court.

In ruling on a motion to dismiss for failure to state a claim upon which relief can be granted, Ling is afforded the safeguard of having all her allegations taken as true and all inferences drawn favorably to her. Wirt v. Esrey, 233 Kan. 300, 662 P.2d 1238 (1983). Applying that principle, we look to the complaint for the facts. It alleges:

At approximately 1 a.m., on Sunday, February 3, 1980, Ling was driving her automobile east on Johnson Drive in Fairway, Johnson County, Kansas, when the vehicle became disabled. Ling left the vehicle and was standing beside it when she was struck by a vehicle driven by Richard Shirley. At that time Shirley was nineteen years old and a minor under Missouri law governing the sale of intoxicating liquors to minors.

At the time of the accident, Shirley was operating a motor vehicle under the influence of alcohol. A blood alcohol examination taken at Shawnee Mission Medical Center, Overland Park, Kansas, showed a blood alcohol concentration of 0.30 percent by weight.

The petition also alleges that Jan’s Liquors, a Missouri retail liquor establishment, sold or provided to Richard Shirley on the night of February 2,1980, an alcoholic beverage which rendered him incapable of operating a motor vehicle.

On February 3, 1982, Ling filed a petition in the District Court of Johnson County, Kansas, seeking damages for the injuries she received which resulted in the amputation of both her legs. On July 20,1983, the defendant filed a motion to dismiss pursuant to K.S.A. 60-212(b).

The district court granted the motion to dismiss, concluding (1) “there is no liquor vendor liability in Kansas and there is no indication that the Kansas Supreme Court will impose the same”; (2) Kansas law and not Missouri law should apply to the [631]*631instant action; and (3) the Kansas long-arm statute would apply to give the court in personam jurisdiction in the case.

Initially, we must ascertain whether the trial court erred in finding the Kansas long-arm statute (K.S.A. 60-308b) applied to give it in personam jurisdiction over Jan’s Liquors, a nonresident defendant. The trial court based its finding on K.S.A. 60-308(b)(7), which provides:

“(b) Submitting to jurisdiction — process. Any person, whether or not a citizen or resident of this state, who in person or through an agent or instrumentality does any of the acts hereinafter enumerated, thereby submits the person and, if an individual, the individual’s personal representative, to the jurisdiction of the courts of this state as to any cause of action arising from the doing of any of these acts:
“(7) causing to persons or property within this state any injury arising out of an act or omission outside of this state by the defendant if, at the time of the injury either (A) the defendant was engaged in solicitation or service activities within this state; or (B) products, materials or things processed, serviced or manufactured by the defendant anywhere were used or consumed within this state in the ordinary course of trade or use.”

The defendant argues that this section of the Kansas long-arm statute is limited to products liability cases. We agree.

In order for personal jurisdiction to be obtained under K.S.A. 60-308(b)(7), the defendant must have had the type of contact with the state as defined in either alternative (A) or (B). In other words, the defendant must either have been engaged in solicitation or service activities within the state, or the product which was the cause of injury must have been used or consumed within the state in the ordinary course of trade or use. In Tilley v. Keller Truck & Implement Corp., 200 Kan. 641, 438 P.2d 128 (1968), this court recognized that the legislative intent of K.S.A. 60-308(b)(7) was to grant in personam jurisdiction to the courts of this state over those who engage in the manufacture, sale, or servicing of products if they receive or can anticipate some direct or indirect financial benefit from the sale, trade, use or servicing of their products within this state.

We find that the sale by an out-of-state liquor vendor to an occasional Kansas customer does not fit within the provisions of either alternative (A) or (B). Moreover, based on our analysis of legislative intent in Tilley, we find the liquor vendor is not the kind of defendant the legislature intended to reach when it [632]*632enacted K.S.A. 60-308(b)(7). Therefore, the trial court erred by relying on K.S.A. 60-308(b)(7).

An Illinois court met with a similar factual setting and jurisdictional issue in Wimmer v. Koenigseder, 128 Ill. App. 3d 157, 470 N.E. 2d 326 (1984). In that case, the plaintiff brought suit on behalf of the decedent whose death resulted from injuries she received in a car accident in Illinois. The defendant-driver who caused the accident, a minor for purposes of Illinois law, had been served alcohol in a nearby Wisconsin tavern where he was of legal drinking age. The plaintiff brought suit in Illinois against the Wisconsin liquor vendor. The trial court dismissed for lack of jurisdiction. The appellate court reversed and held, in part, that Illinois had in personam jurisdiction under the section of its long-arm statute which provides jurisdiction over any person who commits a “tortious act within this State.” Ill. Ann. Stat. ch. 110, § 2-209(a)(2) (Smith-Hurd 1983). The court stated, “For the purposes of the long-arm statute, ‘physical presence is not necessary for the commission of a tortious act within this State; . . . the place of a wrong is where the last event takes place which is neessary to render the actor liable.’ [Citations omitted.]” 470 N.E. 2d at 331. The court found the “last event” was the injury in Illinois. The fact that the sale occurred entirely in another state was of no consequence. The court further found that due process requirements of “minimum contacts” were met.

K.S.A.

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Bluebook (online)
703 P.2d 731, 237 Kan. 629, 1985 Kan. LEXIS 429, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ling-v-jans-liquors-kan-1985.