Olsen Ex Rel. Reilly v. Copeland

483 equity A court of to fashion the has discretion remedy necessary equitably parties. to deal with the S., American Inc. v. L., Med. Mutual Fed. 52 S. & Wis.2d 198, 205, Draski, N.W.2d Venisek v. Wis.2d N.W.2d 347 The trial did court denying damag not abuse its discretion es. arguments all of We have considered advanced respective parties appeal to this and concluded the judgment order and of the trial court be affirmed. By judgment Court. —Order affirmed. others, by their Guardian ad Litem Richard

Olsen, Reilly, Plaintiffs-Respondents, E. in Copeland, dividually Tap, Parkland Defendant- d/b/a Appellant : Defendant. Jensen,

Supreme Court Argued February 28, No. 77-626. 1979.— Decided June 1979. (Also reported 178.) in 280 N.W.2d Gemp- appellant by Cape, For the a there was brief Jones, attorneys, counsel, eler & Schetter, and Carl F. of Milwaukee, argument by all of and oral Mr. Schetter. respondents Franlclyn by For the there awas brief Gimbel, Gimbel, M. Linda S. Vanden Heuvel and Gimbel Reilly Milwaukee, argument by & of oral Vanden Ms. Heuvel. League curiae

Amicus brief of Tavern of Wisconsin Gerdes, Milwaukee, attorney was Dale P. for filed of League Tavern of Wisconsin. HANSEN, question presented

CONNOR T. J. The parties the appeal party on this whether a third injured by has common-law tavernkeeper cause of action for the intoxicating beverages patron sale of the tavern- to keeper knew or should have known was intoxicated and tavernkeeper the who knew have known would driving. recognized However, the trial court in its decision the policy was broader than public the decision involved doing operator and in so liability of a licensed tavern stated: lay object to rest those . . the has “. time come many years past have social considerations which exculpated negligent dispensers they liquor, of whether social,

be commercial or . . .” abrogate again being com This court is asked the intoxicating beverages dispensers mon-law rule of injured parties the intoxi no to third patron. change In the cated court refused nonliability. Hargrove, rule of Garcia Wis.2d (1970). decision was reaffirmed N.W.2d 566 This Hargrove, in Garcia 190 N.W.2d theory the The of the common-law rule basis injury proximate the the that the the act of liquor, purchaser drinking not act selling Garcia, majority it. based vendor nonliability on its retention of the common-law rule of rely policy. public considerations court did drinking the sale was and not the rationale injury proximate cause of the that resolution legislature. preempted by been issue had court stated: “Therefore, analysis, in the final outcome of ‘proximate application case is not determined cause’ legislature or whether the has or has acted. public policy, controlling

The consideration one of and it is the determination of of posed by plaintiff.” at court reasons this liability policy pro- public dictate not be extended as supra, Hargrove, Garcia v. Wis.2d 732, 733. creating

The trial a cause of action un- court here is rejecting public policy by con- known at common law vitally important siderations a to such decision. When of grave the action ramifications are considered questions regarding arise its wisdom. specific

Admittedly presented the factual in context superficial case application lends itself to a the negligence. principles Certainly in view of the cur- practice defining proximate by rent using proximate test, substantial factor lack of cause as seriously rule basis common-law has been eroded longer no can be relied as a bar to action. However, formerly that were incor- considerations porated concept proximate into the in cause remain by public imposed policy the law as the court to factors liability. Chicago Ry. cut v. off Hass & North Western 321, Co., (1970). 179 N.W.2d The may changed label but the reason for the common- responsibility law rule The remains. for the act remains person voluntary with the whose intoxication resulted injury. may today in fact The be more there persons intoxicated of more the wheels autos behind change is not a reason those sufficient the rule. shop recognizing states with dram acts and those a com- mon-law cause of action is not limited injuries negligently caused The intoxicated drivers. action can also cover intentional assaults intoxicated persons may injuries even cover inflicted States, drinker Vance himself. v. United 355 Fed. Supp. (D. 1973) ; Rund, Alas. Hull Colo. ; Ramsey 374 Pac.2d 351 Anctil, 106 N.H. 211 Atl.2d 900 v. Goldberg, Schelin 188 Pa. Super. problems posed 146 Atl.2d 648 presence seriously public place they are now no different than were in past. only difference are is in numbers —now there people more perhaps people driving in- more toxicated condition.

488 rule

A a common-law where court should alter Freedman, longer the rule Shier v. reason for no exists. ; 269, 166, (1973) 58 206 328 Wis.2d N.W.2d 208 N.W.2d ; Dippel 443, (1967) Sciano, v. 37 155 55 N.W.2d Wis.2d Co., Quality Casting 34 Moran v. Aluminum Wis.2d Holy (1967) ; Trinity Widell v. Catholic 150 N.W.2d 137 Holytz Church, 649 19 121 Wis.2d N.W.2d ; (1962) Milwaukee, v. 17 115 N.W.2d 618 Wis.2d Kojis Hospital, 12 107 N.W.2d Doctors v. Wis.2d (1961). public policy 131 The factors which militated past persuasive are as cause of action today. recognized by policy

Six are this court reasons cutting liability: off (1) negli- injury . . too from the is is remote gence; (2) injury wholly proportion too out or tort-feasor; (3) culpability negligent to the or extraordinary retrospect highly appears too harm; negligence brought or about the (4) recovery place un- because allowance of would too tort-feasor; or reasonable a burden on (5) likely be recovery because allowance of' would too claims; open way (6) allow- for fraudulent recovery ance of would enter a that has no sensible field just point. stopping Coffey Milwaukee, . .” 74 . 526, 541,

Wis.2d N.W.2d possibility accident occur if an intoxi- will may cated foreseeable, but drink continues serving liquor the act of a remote is nonetheless any resulting cause of harm. As we said in Garcia Hargrove, : 724, 736, Wis.2d 176 N.W.2d sober, beings, responsible “. . . Human drunk or are Allowing plaintiff’s for against sibility. own torts. their action only respon- the defendant would erode that . .” . involving The cause of an auto accident an intoxicated inability driver is the driver’s to control his auto and inability this is the voluntarily direct result his be- coming Assigning intoxicated. the blame to one who provided that for that means intoxication carries chain a link too far. argument the intoxicated driver is not ab- merely

solved but shares with the dis- penser comprehend. is difficult to Given a situation in voluntarily solely which the intoxicated driver is re- sponsible accident, assigning for the task of some percent negligence dispenser appears to the to be impossible. percent negligence A mere five causal as- dispenser part to the sessed of the shifts burden from says the driver percent that to extent of that five responsible. he Formulating not is a cause instruction explain to jury prove impossible. this situation to a could dispenser joint and the driver are not tort-feasors. negligence Their produce does combine the result. Nonetheless, one must assume that if action were recognized the driver would be to recover entitled con- dispenser. practice tribution from the If the of some states is followed the driver would be able to recover for Any injuries. shifting own his of the blame from the contrary shoulders of intoxicated driver is sound public policy. Further, because this action would be resorted to most often where the intoxicated driver irresponsible, many financially dispenser cases the judgment. would bear the whole of the a situa- such dispenser tion the who to notice that the drink fails being patron many” his too served will be “one bearing wholly certainly for that driver will burden proportion culpability. out of to his problem Yet created another with cause of action provides ample position adhere to our former reason to thing It one to think in of con- on this issue. terms individually sidering application a law the such country However, entirely different tavern. licensed considering application presented when situation is its given metropolitan in a On to licensed hotels center. several hundred occasion such a licensee accommodates eight special events, people perhaps at each seven or arrangements beverages special dispensing corresponding increase in the number bartenders and waitresses and waiters. realistic, recognizes, can trial court there be no

As describing common-law distinction when one sensible intoxicating beverages gives, to one who sells or serves visibly done who intoxicated. If it is when tavernkeeper, done it when a licensed waitress, or bartender, a a a host waiter or social fellow-guest ex- liability companion. or must be Such serving panded participating or to include others giving beverage person “one supplying or a to necessarily many too It include the social drinks.” must no rule situation commercial. know of as well We support proposition that such of law which would only against a cause of can be action created licensed performing tavernkeepers participating while others in or ex- act under different can be identical situations mind are cluded. Some such that come to situations county July fairs, Legion picnics, Fourth American of receptions wedding private in a club and whether held at a un- places home. a of action an Such potential The de- burden reasonable tort-feasors. person visibly termination of when intoxicated likely highly discretionary. jury A of will most question. opinions on each Likewise, 12 different this equally bartender, waiter and host will have different example, perceptions. expect, to be able To hotel guests who are to and monitor the condition behavior to to bar free from social event restaurant circulate guest or to the room of a to his own hotel room tois impose many an At unreasonable burden. events social possible confronting it a drink obtain without even employee. possibilities a hotel The for fraud are evident. change deeply A power in the law which has the to so only relationships affect social business thorough analysis made after a of all con- the relevant respondents The siderations. cite number of statutes reflecting acting police the legislature, under its power, penalties has established for certain com- acts liquor operators mitted holders licenses dispensing establishments. If it is somehow intended dispensers, should be restricted to licensed supports proposi- then reference these statutes regulation industry tion is left to the wisdom legislature. analysis required type of the The is best legislature using it conducted all of the methods public participation. has available to to invite problem presented by issue is not one of adequate injured plaintiff. remedies for an There seems injured by provide person to be little reason to pocket deeper driver with a than the driver, injured by driver or the stupid the careless controlling drugged problem here is one of driver. drinking driving. legislative problem is a with- This regulate Holding dispensers police liquor. power in the to injuries not liable for caused drivers Realistically injuries. likely most to reduce such likely an in tavern- would increase result instead premiums. court create keepers’ For the to insurance attempt legislating action would be an at such a cause of prove mark. doubt to have missed its which would no jurisdictions respondents point in other to a trend fact recognize action. In common-law cause of For each state issue. no firm trend evident 492 recognized a cause of action there

that has common-law do states several is one has refused so. attempting legislature deal are court both example. question. Cali with California notable recognized a jurisdiction which court fornia is commercial of action both common-law cause legislative response to social hosts. The vendors and holdings new which two statutes those contained (1978), liability. prohibit Code, Civil 1714 such Cal. sec. (1978). Code, 25602 Both Cal. Bus. & Prof. sec. legislatures nullify those and Minnesota moved to Iowa holdings that could be held liable. courts’ social hosts also Code, (1979) ; Stats., sec. 123.92 Minn. 340.95 Iowa sec. (1978). Eight have that no common-law courts held - formulation cause action exists legislature. Canez, remedy belongs v. Profitt ; Turner, (1977) v. 235, Ariz. 575 Pac.2d Carr 118 1261 ; (1965) v. 889, Meade Free 385 656 238 Ark. S.W.2d (1969) ; Hat man, 389, Pac.2d 54 State v. 93 Idaho 462 Watts, ; Runge field, (1951) v. 249, 197 Md. 78 Atl.2d 754 1979) ; Circo, v. (Mont. Holmes Neb. 196 589 145 Pac.2d City Nug (1976); 496, Hamm Carson 244 65 N.W.2d v. Inc., 99, (1969) ; get, Marchiondo 85 450 Pac.2d 358 Nev. Roper, 367, v. 563 Pac.2d 1160 Six 90 N.M. common-law have concluded no others dram apart of their provisions action exists from the Phillips Derrick, shop App. v. Ala. 54 acts. So.2d 36 Steffens, Nelson v. 365 Atl.2d 320 170 Conn. Kroger ; Co., App. (1976) v. 1174 Keaton 143 Ga. ; (1977) Edgar Kajet, v. N.Y.S.2d S.E.2d 443 375 237 ; Sebek, Misc.2d 100 N.W.2d Griffin ; (S.D. 1976) (Wyo. Jow, Parsons Pac.2d 1971). recognizing Of the states a common-law cause action, recog some, Minnesota, such Illinois and nized such situations action those act, shop covered their dram others rec- ognized a cause of action in the absence of a shop majority recognize act and dram a cause negligence per of action se a based for violation differing liquor posi- a criminal control statute. These difficulty judicial a tions illustrate the with resolution problem of the is our belief that the reinforce issue legislature. type one best dealt with This of ac- tion, necessary carefully if it all, at to be needs de- veloped Leaving to standards and definitions. it piecemeal judicial lengthy a in a construction will result period litigants uncertainty attempt of confusion and apply principle neg- here —that enunciated it ligent provide liquor visibly person. ato

Finally, problem one last is essential full con- recognized sideration of the issue. This court has availability protect par- insurance to liability ticular is a factor that should be considered in abrogating immunity. White, Goller v. 20 Wis.2d 402, 412, Kojis 122 N.W.2d 198 v. Doctors Hos- supra. pital, Although parties, not mentioned appears insurance available for this type However, generally of action. insurance purchased separately easily and one can conclude majority tavernkeepers pur- of Wisconsin have not they Also, which chased insurance have not needed. at existing least specific some insurance contracts contain coverage. any exclusions such For these reasons change in prospective. the law at least be This prospec- court has said that a decision should be made compelling judicial tive wherever a reason exists. Such parties reason is found where have relied existing adversely law and will be affected a retro- Reszczynski, active Antoniewicz v. effect. ; Freedman, supra; N.W.2d Shier v.

494 42, Dupuis Casualty Co., v. General 152 supra; (1967) ; Widell v. White, v. 884 Goller N.W.2d Holytz Church, supra; Milwaukee, Holy Trinity v. Catholic Again, Kojis Hospital, supra. supra; v. Doctors legislative, reso suggests judicial, for the need this lution of the issue. the order of

For the reasons above we reverse stated grant the trial court remand with directions summary appellant judgment dismiss- motion of for against ing complaint him on its merits.

By the cause remanded Court. —Order reversed and proceedings opinion. for further consistent with this HEFFERNAN, (dissenting). I for the J. dissent dissenting opinion in the Justice reasons stated Mr. 724, Hargrove, Hallows Garcia v. 46 176 Wis.2d 566 N.W.2d

I am that Justice Abrahamson authorized to state joins in dissent. this

DAY, (dissenting). affirm I dissent and would J. trial court in case. twenty recognized years, In the last several states intoxi common law causes of action vendors 188, 156 Nichols, cating beverages.1 Rappaport v. 31 N.J. 1 Berkeley Park, 1968); George, (Ky. v. Pike 434 S.W.2d 626 v. Christian, (1965) ; 381, 298 290 Trail v. 47 Misc.2d 262 N.Y.S.2d Roberts, (1973); 101, 33 Ohio St. 213 618 Mason v. Minn. N.W.2d 153, Vesely Sager, 486 29, (1973); v. Cal.3d 5 2d 294 N.E.2d 884 Sons, Inc., 151, Rptr. ; Adamian v. Three Cal. P.2d 95 623 Fisher, (1968) ; 498, v. 247 Ind. Elder 353 233 N.E.2d 18 Mass. Ketchum, (1966); 831 598, 326 So.2d Pence v. 217 N.E.2d 847 App. 127, Inc., Kerby Flamingo Club, 532 (La. 1976); v. 35 Colo. (Fla. Shiappacossee, v. 155 365 (1974); Davis So.2d P.2d 975 Cousar, App.2d 392, Colligan 292 1963); 187 N.E.2d v. Ill. 38 Finley, App. 611, 213 N.W.2d 50 Mich. Thaut (1965); Ramsey Anctil, (1973); 900 N.H. A.2d (1965); Hotel, Majors 416 Pa. A.2d v. Brodhead (1959), A.2d 75 A.L.R.2d 821 was landmark case case, area. New court noted that Jersey Damage (or Shop had had a Law Civil Dram Act) during imposed lia- Prohibition which had strict bility compensatory damages punitive un- beverages. lawful re- sellers of alcoholic The act was pealed in 1934.

Applying principles liability, normal of tort the court said: repealer negli- unimpaired “The left the fundamental gence principles admittedly Jersey prevail which in New upon plaintiff grounds and which the law his common Negligence . claim. . . is whether the reason- tested ably recog- prudent person place at the time and should nize foresee an and unreasonable risk or likelihood danger correspondingly,

harm . . to others. . And the standard of care is the conduct of the reasonable person ordinary prudence, under the circumstances negligence may “The in the situ- consist creation of a ation which unreasonable involves risk because of expectable sells alcoholic keeper action of another. . Where a tavern . . beverages visibly person in- to a who is person toxicated to a knows or from he should know recognize minor, ought be a he circumstances to foresee the unreasonable risk of harm to others through person action of the intoxicated or the minor. that, assuming “The their defendants contend conduct negligent charged complaint was unlawful and in the as it juries swerable proximate not the in- was nevertheless cause of the generally But a tortfeasor is an- suffered. held injuries ordinary which result in the negligence generally course of events from his and was is sufficient if his conduct a substantial Ketner, App. 656, Mitchell v. 54 Tenn. 393 S.W.2d 755 See also, Waynick Chicago’s Department Store, v. Last 322 269 F.2d (7th Columbia, 1959); v. District Marusa Cir. 484 F.2d 828 States, (D.C. 1973); Supp. (D. v. United Vance F. Cir. 756 1973). Alaska Rappaport v. injuries.” bringing in about factor 8, Nichols, supra, 9. 156 A.2d at Hargrove, v. the court in Garcia Three members of (1970), a similar took 176 N.W.2d 566 46 Wis.2d late Chief Jus- approach in the authored dissent tice Hallows: again “The time when court has arrived guardian power of the com inherent exercise mon law law its general upon principles of common- hold negligence person, who, knows or should when he gives person intoxicated, sells or in have known a negli guilty

toxicating liquor person, of a to such gent act; negligence factor a substantial and if such causing person, liable third he should be harm to a comparative-negli our with the drunken under gence for almost one Conceded, state the common law this doctrine. contrary. years has been hundred Demge Feier Linder, v. v. Dillon 36 Wis. 344 210; stein, Leach, Automobile (1936); Seibel 268 N.W. Wis. ; Mut. Farmers 288 N.W. 774 Wis. Gast, 117 N.W.2d Ins. Co. were (1962), the basis which these cases but commingling sadly from decided the shift eroded commingling horse alcohol power.” alcohol and horses supra, Garcia, 46 Wis.2d at 737. apply principles I no not to normal of tort see reason making exception special for the instead of E. the in A. Invest- vendors of alcohol. As court stated Corp. Builders, Inc., ment v. Link 214 N.W.2d 764 : obligation duty any person “. of . . The of is the . any due care to refrain from act which will cause fore- though harm even nature of that seeable harm to others the identity person and the the harmed or harmed interest is . . unknown at the time of the act. . duty “A defendant’s when it can be is established said that act was his act omission foreseeable may negligent party cause harm to someone. A when he act when some harm to someone commits negligence established, foreseeable. Once the defend- consequences as liable for unforeseeable as well ant is addition, liable unfore- foreseeable ones. he is plaintiffs.” seeable (cid:127) To call the link a fatal automobile acci remote between serving person an intoxicated dent of alcohol to and Berkeley ignore reality. York court New supra, that the Park, at commented 262 N.Y.S.2d Waynick Rwppaport and cases: rejected simply “. . . unreal the distinction resulting selling only a of alcohol is remote cause proximate consumption while the is the

intoxication citing question foreseeability, cases, On cause. reports Safety Council, National modern condi- tions, driving, drunkenness the almost universal automobiles, consequences of use of stated serving more person.” person an intoxicated who an automobile drives alcohol, easily were foreseeable to the reasonable published Accident Traffic Wisconsin Facts Vehicles, Accident Data of the Division of Motor Section motor persons killed in shows that 945 were Wisconsin drivers the 514 vehicle traffic in 1977. Of accidents for blood accidents, 422 were tested were killed in who legally in- those were alcohol drivers content. alcohol of .10 or toxicated with blood levels above. guilty of was

I conclude that the vendor in this case beverages intoxicating per- if to a act he sold intoxicated he knew or have known son who was should driving would be knew or known who he negligence awas condition. If such in an intoxicated causing person; harm to a third factor substantial here should be liable vendor the commercial negligence comparative under rule. points defendant to the first Garcia case

“law” majority that should be followed and the of this agrees. court I opinion But the Garcia was four to three vote. It fails to take into account the fact that we bear a tremendous social cost from the death and maim- ing place highways that takes on our of because drivers whose are senses dulled alcohol. tragedy family, of this where the wife and mother returning from example

was work is killed another of policy placing responsibility failure of a of sole on of consumer alcohol. Until those who alcohol furnish obviously to one who has had more than can he handle responsibility, are made to share the scene re- will be again peated again and the of list innocent victims grow. Following repeal prohibition, will continue to of legislature wisely made it a crime to serve one who bordering is intoxicated or on intoxication.2 When 66.054(9) (c), (1975) provides Sec. that: Stats. beverages. (9) “Licenses for malt fermented ... Conditions op (c) beverages LICENSES. ... No fermented sold malt shall be any . who is intoxicated.” Stats., 66.054, Violation of sec. is made sec. a misdemeanor 66.- 054(15), (1975) provides part Stats. which as follows: beverages. (15) “Licenses for malt fermented ... Penalties. (a) Any person any provisions who shall violate of the of this sec- guilty misdemeanor, tion shall be deemed of a conviction punished by by imprison- shall be $500, a fine of not more than county jail ment by days, in the for a term not more than 90 imprisonment, subject both such fine and and his license shall be to revocation a court of record in its discretion. . . .” 176.30(1), (1975) provides: Sec. Stats. Minors; persons; hospitals. “176.30. Sale penalty. Any keeper any place minor person; OR INTOXICATED any any intoxicating name liquors whatsoever for the sale of sell, any way in, who shall purpose vend or in deal or traffic or for evading any relating law of this state to the sale liquors, give away any liquors any quantity such whatsoever minor, any person, bordering or with a or to intoxicated or purveyor alcohol that law he. flouts should share tragic intemperate consumer the blame for the often money If be lost made from could as well as results. undoubtedly serving already it those intoxicated would roving highways cut the number to drive down unfit indulgence in alcohol. because of over making I hold that would violation of statutes negligence a crime to serve an intoxicated per gives Recently, se, rise to a civil cause action. Supreme Appellate the' held New York Court Division an Federal Adminis airline’s breach of a Aviation regulation tration that forbids service of alcoholic bev erages passengers gives rise intoxicated aircraft com a action the airline for an assault cause of passenger. mitted an intoxicated Manfredonia Airlines, (May Inc., American U.S.L.W. may grounded upon a 1979). If cause of action be certainly regulation, statutes breach of criminal proper action. basis a common law legislature pre- accept had I do view empted I, this court made clear the field. Garcia its was not considerations decision motivated legislative pre-emption. Rather, was Garcia decision public policy. strictly on the based view court’s depart decisis from stare should not hesitate to We change in the when the facts warrant a law. present appropriate us

The facts in case before I would of Garcia 1. to correct the mistake framework do so. procure any person intoxication, who shall whatever state of minor, sell, away, any

for, give the written whether or or any man- parents guardian minor or in other or of such order of the liquors whatsoever, any person, any shall or to such ner $500, than punished than nor more $100 a fine of not less county jail not to by imprisonment or house of correction imprisonment. days, . . .” fine both such exceed 60

Case Details

Case Name: Olsen Ex Rel. Reilly v. Copeland

Court Name: Wisconsin Supreme Court

Date Published: Jun 29, 1979

Citation: 280 N.W.2d 178

Docket Number: 77-626

Court Abbreviation: Wis.