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Kilmer v. Mun


The widow and children of Thomas Kilmer brought this wrongful death action against Hui Chan Mun, the driver whose car collided with Kilmer's on the wrong side of a divided highway, and against Stefanina's, the restaurant that served beer to Hui Chan Mun after he allegedly was obviously intoxicated. The Kilmers' "dram shop" claim against the restaurant is based on section 537.053.3, which authorizes a cause of action against a liquor licensee where the sale of alcoholic beverages to an obviously intoxicated person is the proximate cause of injury or death. However, section 537.053.3 only authorizes a claim where the liquor licensee has been convicted or has received a suspended imposition of sentence for violating section 311.310 by providing liquor to an intoxicated person. Because the prosecuting attorney declined to charge Stefanina's, the trial court granted the restaurant's motion for summary judgment. The judge designated the summary judgment in favor of Stefanina's as final for purposes of appeal.

The Kilmers appealed to this Court challenging the constitutionality of the statutory restriction that requires a conviction in order to maintain a claim under section 537.073.3. We have jurisdiction. Mo. Const. art. V, sec. 3.

We hold that the statutory restriction violates the "open courts" provision of the Missouri Constitution's Bill of Rights, article I, section 14, which protects the Kilmers' right to pursue a remedy for a legally recognized injury. We reverse and remand for further proceedings consistent with this opinion.


The Kilmers allege that Hui Chan Mun had pitchers of beer at Stefanina's Pizzeria and Restaurant, an establishment licensed to sell intoxicating liquor, between approximately 10:00 p.m. and midnight on February 26, 1998. Hui Chan Mun then allegedly drove his car on the wrong side of the divided U.S. Highway 40. He collided with a car driven by Thomas Kilmer, who died at the scene of the accident.

Hui Chan Mun was subsequently convicted of involuntary manslaughter. Evidence at Hui Chan Mun's criminal trial was that his blood alcohol content at the hospital two hours after the collision was .13% per weight by volume. The Kilmers filed an affidavit of Dr. Mary Case, the pathologist who testified at the criminal trial. Dr. Case opined that Hui Chan Mun's blood alcohol content would have been .136%-.142% prior to being served his last drink before the collision and .112%-.118% prior to being served his second-last drink prior to the collision. At these levels, Hui Chan Mun would have exhibited outward signs of intoxication including diminished judgment, decreased inhibitions, impaired perception, memory and comprehension.

Kilmer's family asked the St. Charles County prosecuting attorney to charge Stefanina's with violating section 311.310 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. Family members requested a criminal charge because they wanted to bring a civil action against Stefanina's under section 537.053. Without a conviction or suspended imposition of sentence of Stefanina's under section 311.310, an action for damages is barred by section 537.053. The prosecutor declined to charge Stefanina's.

The Kilmers' wrongful death lawsuit includes a claim against Stefanina's alleging that Kilmer's death was the result of Stefanina's serving alcohol to a patron who was obviously intoxicated. The trial court granted Stefanina's Motion for Summary Judgment because section 537.053 bars civil dram shop actions absent a conviction pursuant to section 311.310.
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