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Bland v. Scott6/10/2005
or harm done to the third party by the person intoxicated from imbibing such beverages. Whether such liability is to be reinstated and under what circumstances and conditions are public policy decisions best handled by the legislature.
THE RESTATEMENT (SECOND) OF TORTS § 324a (1964) ISSUE
The district court dismissed the claims based on the Restatement (Second) of Torts § 324A (1964) on the ground that no cause of action had been stated.
No useful purpose would be served by putting forth the various contentions raised on appeal. It is sufficient to say that one of the members of the court has died since this appeal was heard, and the remaining six justices are equally divided on this issue. Article 3, sec. 2 of the Kansas Constitution provides that the concurrence of four justices is necessary to a decision and the rule is that when one justice is not participating in a decision and the remaining six justices are equally divided in their conclusions, the decision of the trial court must stand. See Tramill v. Holland, 210 Kan. 180, 499 P.2d 1075 (1972).
CONCLUSION
The facts herein are tragic. We are very aware that deaths and injuries on our highways caused by intoxicated drivers are a major problem for Kansas and the nation. In recent years, the legislature has increased the penalties for convictions of driving under the influence in the effort to reduce the carnage. As previously discussed in this opinion and in our previous decisions, the imposition of liability on vendors and/or providers of intoxicating beverages in favor of injured third parties involves very complex issues of public policy which the legislature is best equipped to determine and establish.
We conclude the district court did not err in dismissing the action as to the defendants before us on the ground the plaintiffs had failed to state a claim against them upon which relief could be granted.
The judgment is affirmed.
GERNON, J., not participating.
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