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Bland v. Scott6/10/2005
Affirmed.
This is a wrongful death and survivorship action seeking damages for the death of Felicia (Lisa) Bland. The district court dismissed the case as to all nonindividual defendants on the ground the plaintiffs had failed to state a claim on which relief may be granted. The dismissals were made final judgments pursuant to K.S.A. 2004 Supp. 60-254(b), thereby permitting immediate appeal therefrom despite the action continuing as to the named individual defendants.
STANDARD OF REVIEW
Before proceeding further, we need to state the rules relative to review of a dismissal for failure to state a claim.
In McCormick v. Board of Shawnee County Comm'rs, 272 Kan. 627, Syl. 1, 35 P.3d 815 (2001), cert. denied 537 U.S. 841 (2002), we stated:
"Upon appellate review of a district court's order granting a motion to dismiss for failure to state a claim, an appellate court is required to assume that the facts alleged by the plaintiffs are true, along with any inferences reasonably to be drawn therefrom. The court must also decide whether those facts and inferences state a claim on the theories presented by the plaintiffs and also on any other possible theory."
Since no discovery had taken place when the motion to dismiss was filed, the appellate court must rely on the pleadings and any exhibits attached thereto. Prager v. Kansas Dept. of Revenue, 271 Kan. 1, 4-5, 20 P.3d 39 (2001).
A district court's dismissal of an action based on the failure to state a claim is a question of law subject to unlimited review. Ritchie Paving, Inc. v. City of Deerfield, 275 Kan. 631, Syl. 1, 67 P. 3d 843 (2003).
STATEMENT OF FACTS
Plaintiffs' petition consists of 95 separately numbered paragraphs stating facts in general and also facts specific to each defendant, and the claims plaintiffs are asserting against each defendant. The facts relied upon by the district court in dismissing the case as to the defendants before us are taken from the petition filed by the plaintiffs and, as the district court stated, "are assumed as true."
With the previously stated review requirements in mind, we place the issues in context by summarizing the facts as pled by the plaintiffs as follows. Sean Scott was 16 years old at the time of the events in issue. On the afternoon of September 16, 2000, Sean drove from the family home in Shawnee to visit his 19-year-old brother, Mike Scott, at the Phi Gamma Delta fraternity house in Lawrence where Mike resided. The Scott brothers stayed at the fraternity house for a few hours. They then went to The Wheel, a local bar, to join Dana and Lawrence Rieke, the mother and stepfather of the Scott brothers. At The Wheel, the Riekes provided the brothers and other minors in the party with alcoholic beverages, including beer and shots of tequila. The Riekes went to a football game, and the Scott brothers walked back to the fraternity house. While there, fraternity members provided Sean with substantial amounts of alcohol, including beer and shots of rum. They urged Sean to drink and ridiculed him if he did not want to drink more. Ultimately, Sean left the fraternity driving his car.
Sean traveled east on K-10 highway at a high rate of speed. He lost control of his vehicle, crossed the center median, and crashed into a vehicle driven by Lisa Bland. Ms. Bland died as a result of injuries received in the accident. Sean's blood alcohol level was tested at .15. The record reflects Sean was subsequently convicted of involuntary manslaughter in Johnson County.
As it pertains to this appeal, plaintiffs filed a multi-count suit claiming, inter alia, negligence by Phi Ga
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