*1 him, cause, for ment, Stats., we remove sec. 753.075 judicial aAs eligibility office. to serve ineligible constitutionally re- consequence, also he is VII, judge. Art. temporary service as appointment or sec. Const. Wis. Susan Koback, David
Leslie Koback, Koback lants, Plaintiffs-Appel Com Insurance American Standard A. Michael Crook, Crook, Richard Wisconsin, and Mrs. pany of Mr. name Company, fictitious Jr., ABC Insurance corporation, and General an unknown insurance Defendants, Wisconsin, Company Casualty Thresher Brooks and Mr. and Mrs. Cecil Paul Brooks, Company, Defendants- Mutual Insurance men’s Respondents.
Supreme Court Argued October 30, 1984. No. 84 - 1080. April 30, 1985. Decided 857.) reported (Also N.W.2d in 366 *2 by plaintiffs-appellants For there were briefs John, Friebert, Thomas Kelly W. St. Madeleine E. Finerty John, argument by & Milwaukee, St. and oral Kelly. Ms. by defendants-respondents
For there were briefs Todd Coyne Office, Madison, A. Becker and Niess Law & Colwin, Fortune, and David J. Colwin and Colwin & Pomeroy, argument by S.C., Fond Mr. Lac, du and oral Becker David J. Colwin.
HEFFERNAN, question pre- CHIEF JUSTICE. The party, Koback, injured sented is whether third Leslie by driver, Crook, intoxicated Michael has a common negligence against law cause of action for Mr. and Mrs. Cecil Brooks and their son, adult Paul Brooks, the hosts, Crook, who served alcohol to a Michael known, that Crook knew, should have the hosts when known, knew, have or should minor was a consump- drive, the minor’s when guest would minor injury to the third cause of was a alcohol tion of party. con- erred when circuit court that the conclude claim failed to state
cluded granted. Accordingly, we reverse relief can be proceedings. for further court to the circuit and remand court appeal the circuit on to us The case comes judge, Gergen, Jr., circuit Dodge county, Henry G. parents, and her petition Koback Leslie on pur- appeals bypass court of plaintiffs-appellants, 809.60, Stats. suant sec. *3 response a Judge Gergen, to court, the circuit law dismiss, relying upon decisional Wisconsin
motion to
18,
held,
April
dated
existed,
a decision
then
action, i.e.,
re
claim for which
1984,
no
that no cause of
alleged, in
granted,
under the facts
lief could be
existed
not be
that a
host could
He concluded
Wisconsin.
intoxicating beverages
negligently serving
for
liable
Judg
guest
complaint.1
in the
a
under the facts stated
Appeal
May 1, 1984.
ment
entered on
of dismissal was
1Judge Gergen
v.
Garcia
relied
the court’s decisions
v.
Hargrove,
724,
and Olsen
46 Wis. 2d
176 N.W.2d
Copeland,
483,
(1979), both of which
2dWis.
minors, them, or some of would leave thereby creating motorcycle, automobile or an unreason- operating able risk of harm those minors vehicles passengers.” and their They allege Crook Brooks knew that Michael motorcycle was a knew that he had driven his party, and knew to leave the his intention motorcycle. with a passenger Leslie Koback as on his *4 alleged that, p.m., approximately It is also at 10:30 Crook, condition, party Michael in an intoxicated left the motorcycle on passenger. his with Koback as a Leslie Shortly motorcycle thereafter, parked Michael’s struck a car, throwing pavement, causing very Leslie to the se- personal injuries, sought vere compensation for which in lawsuit. 2 Crook, driver, parents Defendants Michael the and his
their previously dismissed, insurers apparently were a result of settlement. plaintiffs’ appears
The essence cause of action complaint: the amended in were Brooks and Paul Brooks “Mr. and Mrs. Cecil respects: following in the intoxicating beverages permitting “(a) causing in at other to minors
to served Michael Crook party; party “(b) permitting Crook to in Michael leave they Koback, when knew or should have with Leslie intoxicating beverages and known that he had consumed motorcycle operate his with Leslie it was Koback as his intention to his passenger; “(c) failing ascertain and to warn Leslie Koback in Crook; Michael condition of intoxicated failing properly party “(d) supervise the so in consuming prevented from alcoholic as to have minors guests party prevented at and so as to have being persons transported by it would with whom ride; be unsafe to transporta- “(e) failing provide a means of safe they or, party the exercise tion from of portation knew when known, trans- reasonable care should have that such necessary.” was alleged “substantial was a It that such injuries and the producing Koback’s Leslie factor parents.” damages her to her and appeal is whether presented question on this thus we dismiss alleged, on a motion to if true —and the facts relief true —state claim assume them to be County, Quesenberry v. Milwaukee granted. can be (1982). a third Does 685, 690, 317 N.W.2d Wis. Koback, of action a cause party, have in this case Leslie fam- of the Brooks three members or a claim Crook, at a ily Michael who were the hosts of respects speci- they were where complaint. fied in the de- called not heretofore
This court has been alleged- possible who social host termine *5 264 beverages guest negligently minor alcoholic
ly serves a injury. guest by the that results which cause conduct Jarvis, 119 Wis. court, however, in Sorensen This abrogated recently 627, 198 N.W.2d 2d 350 vendors, non-liability rule in law common may be beverages that the vendor and held alcoholic negligently furnishing alcohol third to a liable supplied so substantial a minor when the alcohol party. causing injuries This court third factor in to a rejecting outdated common-law expressly did so only consumption of the alcoholic it was notion that furnishing that of them and not the inj ury. was the cause
Additionally,
it clear
the court
made
changing
precluded
common-law
it was not
from
shielding the vendor
court-made doctrine theretofore
held,
liability. Moreover, the court
with
from
consistent
cases,
previous
this court in tort
declarations of
imposition
on a vendor
whose conduct was
causing
injury
factor in
was a matter of
substantial
public policy
that,
proved
the sense
where there was
result,
chain of causation between conduct and
it was for
the court to
whether or not there
determine
should
liability,
appropriate pub
and that a reasonable view of
policy compelled
lic
this court to abolish the
specious
vendors’
civil
common-law shield from
liability.
Those
cases
relied
this court’s former
public policy
protected
articulation of
the vendor
expressly
were
Garcia v. Har
overruled.
grove (Garcia I),
724,
46
2dWis.
N.W.2d
(1970) ;
Hargrove (Garcia
289,
Garcia v.
II),
2d
52 Wis.
(1971) ;
Copeland,
In
we
the
that
it was
shibboleth
supplier
the imbiber
not
of the alcohol who
beyond
injury,
go
but
did
caused
we
not need to
Gast,
Farmers Mutual Auto Insurance
test of
Co.
344,
concluding
in
that
Wis.
negligence alleged proven in the at must be and, trial proved, predicate if is the for of a supplier, non-commercial host, a social to the ex- same negligence per violating tent se conduct of liquor triggers liability statute for a licensee. Plaintiffs assert ordinary sup- that the failure to exercise care plying intoxicating beverages neg- simply common-law ligence triggers liability cause, if the elements of factor, proximate together substantial with cause — damages proved. agree We the Sorensen ra- —are appropriately tionale applied to the non-commercial vendor, host, and- furnish Sorensen, go beyond liability. need not basis for per negligence se Sorensen, however, it is here, for ato minor.3 furnish minors, selling to statutory prohibitions per se founded which furnishing fermented malt apply also intoxicating liquors ato minor. 1979-80, 176.80, 66.054(20), and sec. Stats. Sec. Stats. 1979-80, at of the incident were in effect the time case, provide penalties their considered in this violation. 66.054(20) 1979-80, provides: “Ex- (a),
Sec. Stats. *7 section, may person cept provided as otherwise in this no beverages mi- or fermented malt to a sell furnish (Emphasis supplied.) nor . . .” . intoxicating (a), liquors, 176.30(2) to sec. provides: may: Sell, 1979-80, person Stats. “No 1. fur- give age intoxicating liquor person
nish or to a under (Emphasis supplied.) 18.” judicial and,
We take notice of these statutes as Sorensen, supra, proof we conclude that the violation of of either negligence per statute constitutes se. The al- legations complaint of the specifically assert that fer- beverages mented malt by were furnished the Brooks’ to Michael complaint Crook. alleges The also the Brooks’ permitted caused beverages alcoholic to served to Michael Crook. Under the rationale of Soren- sen, proved, these allegations, if constitute 3 At the leading time of the events case, to in this age majority legal the age of drinking eighteen. and the were both 66.054(20) (a), Sec. 1979-80; 176.30(2) (a), Stats. sec. Stats. 1979-80; July sec. 990.01(20), 1, Stats. 1979-80. Effective legal drinking age years age. the became nineteen Sec. 125.02 (8m), throughout opinion Stats. 1983-84. Reference “minor,” word, synonymous phrase, legal with the “under the drinking age.” holding abrogates immunity Our the common law serving persons afforded social legal drinking hosts for under the age, legal drinking age whatever be at the time. par- per apply these with se. The fact statutes beverages, by ticularity to of the controlled vendors licensing placement among virtue statutes’ prohibitions regulations, does not restrict their They only. apply furnish persons to all who licensed beverages liquor malt to minors. or fermented dissenting Sorensen relied the rationale I, opinion written in Garcia Justice Hallows Chief joined by Heffernan, and the Justices Wilkie and Copeland dissenting opinion in Olsen v. of Justices separate Heffernan, Abrahamson and dissent Day. of Justice logic expressly adopted those dissents was
the ratio decidendi Sorensen. We conclude adopted unmistakably rationale in Sorensen leads to the allegations conclusion that in this granted case claim state which relief can be against a social host who has furnished malt fermented liquor or to a minor in violation of secs 66.054 (20) (a) 176.30(2) (a).4 I, pointed
In the dissent to Garcia out comports hold vendor liable with principles permits traditional fault of tort injured party negligently one recover who injury. causes stated I we Garcia dissent that exception arbitrary nearly would thus remove an *8 principle liability. universal fault of equally We conclude that principle applicable fault is by negligent furnishing the social host who drink injury. alcoholic causes the While the defendant 4 argument impo We have considered the defendants’ that liability sition by on host a social should be undertaken legislature position and not court. with Consistent our Sorensen, question recognize we conclude that whether injured a by common-law cause of action third appropriate a social host is an one this court. for See 119 Wis. at 632. argues ais real distinction between social here there vendors, it a dis- we conclude is hosts and commercial certainly, legally relevant tinction without a difference — respect minors. is no difference What furnishing may liquor by be conduct in the a seller factually negligence by what different than is a social Negligence ordinary host. is the want of care under the negligence presents circumstances. is cases What most jury question. liquor In that cases involve minors supplies negligence, statute the standard of what selling furnishing although or of alcoholic — may there be other that acts of could also liability. lead to argue, however,
The special defendants that there is a fiduciary relationship liquor between a licensed dealer customer, upon liability based, which tort that guest relationship. is absent in the social host and The Sorensen alleged case did not rest fiduci- ary relationship, and we conclude there is none. legal liabilities of a retail seller set forth in Sorensen are the respect result of conduct in to a minor. There why is no reason a different rule of tort law apply should to a social host where other in- guest. toxicants are furnished to a minor It is also asserted that the social host should not be liable because the potential host does not have the passing on the costs of expense. his as a business argued, It therefore, the social host should be although liability-free, acknowledge defendants commercial vendor case, should not be. the instant argument conceded at oral the defendants’ homeowners policy provided coverage kind of claim asserted in this case. In type argument made here, defendants the New Jersey Supreme Kelly Gwinnell, Court 96 N.J. 9,n. 476 A.2d (1984), pointed out the relevant distinction: *9 the home- issue here is not whether critical “[T]he himself, it but pass the cost on or must bear
owner can spread the risk over tort should be whether a law used society through large segment of insur- the device imposing the inno- the entire risk on ance rather than driving. Obviously will be there cent victim of drunken premium point that at some some additional insurance in- will Their homeowners and renters have bear. ability more pass however, on is no others, that cost argument persuasive than that as same would be ‘average citizen’s’ automobile insurance or, exists.” matter, for homeowners’ insurance it now spread case, mechanisms exist to the loss over each group enterprise liability in the case of a commercial — respect venture and insurance in to the social situation. Applying I, reasoning in of the dissent Garcia adopted Sorensen, then, apparent that, where a concerned, persuasive minor is dis- there is no reason to neg- tinguish between the social host and the ligent that, occupies vendor. Neither a status viewed public policy, terms of lia- warrants immunization from bility proved once conduct has been to be injury. cause of contrary assertion,
Moreover, to the defendants’ adopted consistent with the rationale negligence of the defendant social host is no more remote injury the claimed than is the acknowledge vendor. present The defendants in the case furnishing that the of alcohol to the is a cause of minor parties, the harm to third but claim the result of the conduct to be too remote to be actionable. see no distinction in that from the situation where Moreover, commercial vendor negligently. has acted exceptional case, where the result so attenuated consequences original negli- both in time and from the gence, tort-liability-limiting policy the usual factors employed. could be
270 sequence of events egligence plus unbroken “[N] necessarily a lead to
establishing not does cause-in-fact plain the liable for the defendant is determination that impose injuries. to not The determination tiff’s negligent committed act has a been in and where instances causing injury the factor’ act is a ‘substantial public policy.” Haas v. Chi of considerations rests 321, Co., cago N.W.2d Ry 79 326, North 48 2d & Western Wis. (1970).5 885 technique explained that over The reason for was Theater, Gateway thirty years ago Standard Pfeifer (1952) Inc., 238, : 229, 262 55 29 Wis. N.W.2d that it would shock the con- cases so extreme “[I]n step may impose liability, society science of in to courts liability.” . hold . . there is no I, In the to Garcia Justice Hallows ad- dissent Chief argument majority I dressed the of the Garcia that to inexorably hold a commercial vendor liable would lead holding agreed a that social host liable. He might case, pointing ensue in out either ought negligent. He social host to be liable if found wrote: majority difficulty “The with the is concerned mak-
ing a distinction where lia- to draw the line between 5 Mandella, 598, Colla v. 599, 1 Wis. 2d N.W.2d (1957), particularizes applied the considerations are to case-by-case to causes of action on an individualized basis: recognized by “It other courts that even where the complete recovery direct, chain of causation is grounds tort-feasor sometimes be denied on policy public injury negligence because the is too remote from the ‘wholly proportion culpability negli- or too out of gent tort-feasor,’ retrospect appears highly or in it too extraor- dinary negligence brought harm, have should about recovery place or because allowance of too a would unreasonable likely highway, open burden users of the or be too way claims, to fraudulent ‘enter a that has no would field ” just stopping point.’ sensible or liability. having correctly bility After stated and no foreseeability part and not causa- suggests majority tion, to draw a line opinion rather difficult it is selling liquor giving liquor to between says effect, majority person. if an intoxicated is logical dispenser liable, then the commercial hold holding legitimate no there basis for not also liable; private dispenser impractical and since it is liable, private dispenser hold a The we will not hold either. necessity drawing line of demarcation is why straw-man distinction I argument, and see no reason such . keepers, must be made. . . *11 “We our are still and it brothers would be gathering knowingly give rare host at a social who would more to an intoxicated friend he his when knows highway invitee must take care of himself on the endanger potentially justice will persons. other Social require and common sense the social host to see within guests reason generosity.” partake that his do not too much of his I, (Hallows, Garcia 2d at Wis. 739-40 J., dissenting). C. adopting
In thus in Sorensen the of the Hal- rationale I, lows dissent in Garcia this court has made the con- scious determination that the principles same traditional ought of tort apply apply law that to vendors also to hosts; i.e., evincing if either acts in a manner ordinary liability may lack of circumstances, care in the follow. argument
Still another of the defendants here was set at rest in Sorensen. place It is any part asserted that to onus on the host re- will dilute the sponsibility of the drunk driver to the innocent victim. This, course, argu- has been one of the traditional against any ments form of insurance that makes possible compensation of the victim from a source other than the assets of the Again immediate tortfeasor. relying upon language of Chief Justice Hallows’ dis- I, sent in Garcia we stated in Sorensen, at 643: respon- driver will not relieved his drunk be “[A] sibility responsibility remain will liable —but —he party, culpable will with at least be shared one additional supplied liquor, the the tortfeasor who when causing of each is a substantial factor plaintiff’s injuries.” applies literally logically
This statement social host as well as to The the commercial vendor. joint and, driver such, may remains a tortfeasor jointly severally liable. any why holding
Nor do we see reason a social host liable, negligent, Any if will fraudulent induce claims. injuries time the law resulting offers relief from conduct, society tortious tempted some in our are legal make system fraudulent designed, claims. Our guard however, minimize, against, pos- and to sibility. possibility greater of fraud is no in the type recognize of claim we here than in scores of other types of application tort claims. The of the rules of evi- dence, the oath of truth, witnesses to tell the ability jurors to discern it remain the shield of our society any false claims of kind.
The rationale of the
dissent,
Garcia I
which we have
adopted,
simply
person
negligently
who
fur-
*12
liquor
nishes
another,
to
furnishing
liquor
when such
or other
causing
intoxicant
is a substantial
factor in
an
injury,
is
justice
not in social
immunity
entitled to
consequences
the
of such conduct. This rationale
aas
predicate
liability applies
equally
negligent
liquor
vendor of
to a
negligent
minor
to
the
host
liquor
who serves
guest.
to a minor
Additionally,
adopted
in Sorensen we
the rationale of
Day’s
Justice
separate dissent in Olsen
Copeland, 90
v.
483,
2d Wis.
(1979).
Thus, express in acceptance our dissenting Olsen, rationale in Garcia I con- we negligent cluded supplier that the conduct of a towas be in the common law of in the treated torts same person. any manner conduct of other If conduct oreseeably is of a nature that will f cause harm anyone, negligent. it is If the conduct is the violation safety of a purpose statute whose is to avoid or diminish the likelihood of the harm that resulted, conduct negligence per considered to be se. If that substantial factor —a cause in fact —in injury, particular case, will follow unless in the policy court, as a matter of to be determined unusual, remote, unexpected that, results are so justice, liability ought imposed. not be
Hence, negligent supplier of an intoxicant to a law, may under the rules of Wisconsin tort liable any same manner and to the same extent as person engages who conduct.
274 the basis between distinction fundamental
We see no the basis liability in Sorensen and to exist found of proved. negligence is here if liability exist per of the negligence se because was In regulation. specific liquor In control of a violation negligence upon the anal- case, predicate the instant we proved allegations complaint, ogous if of the The statute. properly instructed of a and if shown the satisfaction ordinary jury care in the circum- a want evidence stances, serving liquor will result i.e., to a negligence. proper finding in a and the lia That the licensed seller bility respect indis a social host in to a minor are tinguishable negligent conduct both stem from because 538, 546-47, Kelly Gwinnell, was well 96 stated N.J. host A.2d held a social (1984), 1219 case which guest. liable for to an adult social Jersey The New court stated: Rand, Appellate . Linn “The Division . . ruled in <v. Super. that a N.J. social host who serves liquor visibly minor, knowing to a the minor intoxicated drive, may in- will thereafter held liable for juries inflicted on a third as a result of the subsequent driving There, prac- drunken minor. urged tically against all of the here considerations liability one’s the present: setting were at some- it was a social home, tavern; provided not at a the one who liquor host, to the intoxicated minor not licensee; and all of the notions of and causation fault pinning responsibility present. sole on the were drinker only guest difference was that was a minor— obviously but whether so to the host or whether known opinion. is not disclosed Rappaport, explicitly “In we the matter did noted that any ‘persons engaged not involve claim not approve business.’ 31 at 205. now N.J. Linn with its extension of to social hosts. expanding liability, Linn followed rationale of Rappaport duty duty, that the involved is a law common *14 regulation pro- arising and from the statute not one ap- which liquor of hibiting plies pcuport to a neither sales of Rap- implication The of a host. . . . fair to social duty independent of that the exists and explicit in statutory prohibition, was made thus the Linn. As makes little sense court there noted: ‘It the' duty Rappaport say exercise may cause he is unlicensed.’ 140 a is under that the licensee in immunity care, give host who to a social but of wrongful merely be- guilty conduct be same Super, N.J. at 217.” Alpha Chapter Tau Phi Wiener See also Gamma Omega Fraternity, 258 Or. 485 P.2d held, a negligence, a matter which as of common-law serving fraternity damages could liable in social persons to be minors and who were known injuries. whose intoxication caused allegations that We conclude that a and granted, state claim which relief can be law such claim founded common Wisconsin recently v. Jarvis. in Sorensen stated policies guided adopt- the court Sorensen ing I Olsen rationale the dissents in Garcia fully applicable are tort of a social host. arguments
One of the is that to hold defendants’ destroy joie social way host will some de liable vivre congeniality of numerous social events —would place anniversaries, damper gaiety weddings, on the graduations. argument, to this the New Jersey say: court had this to impose duty “We on host to the third policy because we believe served considerations imposition outweigh its opposi- far those asserted in recognize ruling tion. While we the concern that our will will accepted behavior; interfere with standards of social intrude on and enjoyment, somewhat diminish the re- gather- accompany laxation, camaraderie served; gather- ings and that such at and social alcohol is tangential ings benefits of simply relationships not are many society regarded by but are civilized of as important, the added assurance as just we believe driving compensation of drunken victims well as effect of the on such the added deterrent rule driving outweigh importance of those other values. *15 society’s Indeed, given extreme we believe that concern any change driving, about in behavior drunken social resulting regarded ultimately rule will be as from the change very least, neutral at the worse; and as a for not loss, any but that in if a it well event 96 N.J. there be gain.” Kelly, worth the at 548. grim We need not dwell on the statistics of death or mayhem highways justify support on the our Jersey only statement of the New court. needWe to look consequences alleged negligence by the host young physically, in the instant case—a woman emo- tionally, mentally consequence crippled, that all too furnishing often is the result of uncontrolled of alcoholic beverages, private at whether affairs in commercial establishments. To have “carefree” social affairs where injury, host does not exercise is to care invite suffer- ing, death, and, liability policy, aas matter of social consequences. for opinion,
For reasons set forth in this we conclude that the claim relief can states a granted. that, proof be We hold is sufficient where there trial, negligently at a social host who or furnishes serves intoxicating guest, to minor the intoxi- cants so furnished cause the minor to be intoxicated or driving ability impaired, shall cause the minor’s to be be negli- persons proportion liable third gence beverage furnishing to the minor was causing injuries, substantial factor in the accident or as neg- may comparative determined the rules of be under ligence. liability applied this court rule of others, but, parties; to all the rule was
the immediate September prospectively applicable, made effective on appropri- procedure 2d at This 1984. 119 Wis. 648. Jersey ately present As the New in the case. utilized Kelly, Supreme at 551: Court stated in- may desire to who social hosts “Homeowners are limits; want policy apartment dwellers crease their to obtain they bility perhaps liability kind where insurance of this imposition lia- have retroactive now none. unexpected imposition its considered could be have determined unfair. therefore prospec- imposed by shall be on social hosts this case . .” tive . . Sorensen, we Accordingly, reasons stated for the By prospectively. this, we holding of apply the this case only mean shall that there a minor host who furnishes of a conduct *16 injury on after occurs or when which causes the conduct September 1, 1985. liability adopted however, do, apply of rule judgment parties us. The in the case before
herein to dismissing plaintiffs reversed Dodge the circuit court the cause remanded to county proceedings. for further
By Judgment re- and cause reversed the Court. — manded. BABLITCH, is- (concurring). J.
WILLIAM A. host is the sue decided this case served, serves, intoxicants have who allows to specifically opinion majority, join I minors. grounded upon it is because violation the statute illegal makes it to serve intoxicants to minors. I write entirely separately only emphasize different public policy, very problems question, with different of a social host is involved the issue of an adult. This case does not reach issue. G. William
I am authorized to state that Justices join J. in this concurrence. Louis Ceci Callow Wisconsin, Plaintiff-Respondent, State of Randy Hartwig, Defendant-Appellant-Petitioner. Lee
Supreme Court Argued November No. 83-1371-CR. 1984. April 30, 1985. Decided 866.) (Also reported in N.W.2d