Victims of drunken driving cannot sue Kansas bars. Advocates want that to change.

Andrew Bahl
Topeka Capital-Journal

One moment, Jeff Kudlacik was driving home after getting off work and celebrating his 23rd birthday on March 10, 2015.

He woke up in a hospital bed three weeks later.

While driving through an intersection near his Overland Park home, a drunken driver who was running a red light struck Kudlacik's car, a blow that nearly cut his sedan in two.

Placed in a medically induced coma for 21 days, Kudlacik said he was twice deemed clinically dead and had to be revived. He spent three months rehabbing from a slate of injuries, including compound fractures in both legs, nine broken ribs and a collapsed lung.

The driver who hit him later pleaded guilty to aggravated battery while driving under the influence and was sentenced to 31 months in prison.

Jeff Kudlacik is shown in the hospital shortly after being struck by a drunken driver in 2015.

"I had to learn to forgive very quickly or else it would have been a lot harder, a lot longer road, in my opinion," Kudlacik said. "Just because I don't want to hold on to animosity for a guy that I've never met."

While the driver was required to pay financial restitution, Kudlacik soon learned that Kansas is one of seven states lacking a so-called dram shop law, or language allowing bars and restaurants to be held liable for the actions of intoxicated patrons they serve.

"I was just more shocked than anything to learn that there wasn't really anything in place," he said.

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That prompted a lawsuit, where Kudlacik argued that previous case law was outdated and should allow him to file suit against two establishments that served the man who hit him, arguing they should have known he had too much to drink.

But the Kansas Supreme Court ruled in 2019 that the issue of whether bars and restaurants can be held liable for the actions of inebriated patrons rested in the hands of the Legislature. And while Kudlacik's case prompted a surge of attention, it didn't prompt any revisions to the law.

Could Gene Suellentrop case change the narrative?

Now, advocates are wondering if the high-profile case of Sen. Gene Suellentrop could change that.

Suellentrop was stopped and arrested by a Kansas Highway Patrol officer last month after allegedly driving the wrong way on Interstate 70 in Topeka and leading law enforcement on a brief pursuit. His blood-alcohol level was over twice the legal limit, tests taken hours after his arrest show.

A dram shop law wouldn't apply in Suellentrop's case as no one was injured or killed. And there is no evidence of negligence on the part of any establishments the Wichita Republican may have visited before getting behind the wheel.

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But there is hope the incident will prompt a broader discussion about alcohol and driving under the influence in the state.

"I think we as Kansans need to have a discussion about why we're in a distinct minority of states that don't try to help ensure public safety by imposing liability in these situations," said David Morantz, the Kansas City, Missouri, attorney who represented Kudlacik.

No legislative action, despite legal history

Kansas had a dram shop act until it was repealed in 1949 as part of an overhaul of the state's liquor code. The strict mandates effectively barred the existence of bars and taverns, eliminating the need for such a law.

But as liquor laws eased over the course of the 20th century, legislators never got around to re-establishing the provision. And while the establishment of Mothers Against Drunk Driving and other groups brought another round of attention to the issue of driving under the influence, it wasn't enough to bring about a dram shop law.

Adam Mills is president and CEO of the Kansas Restaurant and Hospitality Association. He said stringent laws on alcohol sales in Kansas has reduced the need for the liability provision.

Adam Mills, president and CEO of the Kansas Restaurant and Hospitality Association, argued this was in part due to the fact that the state has maintained some of the most stringent laws on alcohol sales in the country. This, he said, reduced the need for the liability provision.

"We take personal responsibility when it comes to drinking and driving very seriously," Mills said.

Most states set some parameters, limiting liability to cases where the person served was a minor or was showing signs of obvious intoxication. Others exempt licensed establishments from liability.

But these protections are more than what exists in Kansas, despite a series of lawsuits that have cropped up over the years, many involving circumstances highly similar to Kudlacik's case.

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A 1980 case, for instance, was filed against a liquor store owner who allegedly sold alcohol to a minor, who got drunk and crashed into a motorist parked by the side of the road.

In his 2019 ruling on Kudlacik's case, Justice Dan Biles wrote some of his arguments "had merit" but ultimately cited legal precedent in ruling the court remained "unpersuaded that a duty of care runs from tavern owners to third-parties injured by their patrons after leaving the tavern owner’s premises.”

Put another way, Morantz said the court delineated between the moral and legal issues involved.

"One of the court's biggest hang-ups on it has been this notion that the person who causes harm in these cases is not the bartender or the waiter — it's the driver who drinks the alcohol," he said.

Hospitality industry argues it is tackling alcohol issues already

The hospitality industry argues bars and restaurants already have put robust training in place to tamp down alcohol-related issues, reducing the need for liability law changes.

The effect of dram shop laws isn't merely punitive, advocates say.

Chris Mann, an attorney and former board member of Mothers Against Drunk Driving, argued increased training implemented by establishments to ensure compliance has a meaningful impact in cutting down on drunken driving.

In 2011, a Centers for Disease Control and Prevention taskforce found dram shop laws "can be an effective intervention" in reducing risky, alcohol-related behavior. And the Kansas Emergency Medical Services Association signed on in support of Kudlacik's case in large part because of the potential effect it would have on serious accidents.

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"Having the hospitality industry as part of this, I think is important because it then kicks in and requires that extra training and the extra due diligence that they have to do on their end," Mann said. "And I think that's ultimately going to help the industry and society."

But Mills, of the hospitality group, said robust training is already a key part of the industry. He noted a program put forward by the KRHA and the National Restaurant Association, which educates and certifies establishments in handling alcohol, as just one example. 

"I don't think anybody is out there not wanting to protect both public interest and their business," Mills said.

Kansas allowed for cocktails to be taken to go during the COVID-19 pandemic and is currently reviewing whether to make those provisions permanent. An increased interest in consuming alcoholic beverages at home would drive down the risk of drinking and driving, he noted.

And creating a new liability risk for establishments would be especially difficult as many bars and restaurants rebound from government-mandated restrictions over the course of the pandemic, with some businesses closing their doors permanently.

"I think we as an industry right now need to focus on getting reopened, getting the economy back and getting people back to work," Mills said.

Advocates look to the future amid push for change

The prospects for legislative action appear uncertain.

The Legislature seriously considered a narrow dram shop provision in the mid-2000s but opted not to proceed. Morantz said progress was again moving forward in 2020, with legislation ready to be unveiled, but COVID-19 disrupted the process.

Meanwhile, lawmakers cannot take action on the matter this session as a dram shop bill was not introduced. Mann said he remained optimistic about next year but noted a legislator needed to pick up the issue and serve as its "champion."

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While the Suellentrop case isn't directly applicable, he said it underscores the dangers of drunk driving and could change the narrative around the issue in Topeka.

"We're very fortunate that incident didn't end in someone being injured or killed," Mann said. "But that happens every day. And it very easily could have happened in this case.

"So absolutely, whenever there's something high profile, I hope it makes people step back and then think twice before they do it and think about what we can do to address the problem."