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    Social Host Liability for Underage Drinking

    The Wisconsin Supreme Court recently declined to extend liability to persons who, despite being aware of an underage drinking party on their property, did not actually provide the alcohol that led to a tragic car accident. If such an expansion of liability is to occur, the court said it should come from the legislature. The author explores the history of social host liability for underage drinking in Wisconsin and the current state of the law after the supreme court’s Nichols decision.

    Mark R. Hinkston

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    Wisconsin LawyerWisconsin Lawyer
    Vol. 81, No. 6, June 2008

    Social Host Liability for Underage Drinking

    Social hosts face liability if they knowingly provide alcohol to underage guests who then injure third parties. The Wisconsin Supreme Court recently declined to extend liability to persons who, despite being aware of an underage drinking party on their property, did not actually provide the alcohol that led to a tragic car accident. The author explores the current state of social host liability for underage drinking in Wisconsin after the court's Nichols decision.
    Bottles

    by Mark R. Hinkston

    Few people dispute that underage drinking is a serious problem with potentially drastic consequences. People under the legal drinking age of 21 have the nation's highest rate of alcohol dependence.1 Thousands of people in the United States are killed or injured each year as a result of alcohol-related crashes involving teenage drivers.2 Financial ramifications are in the billions of dollars.3 Emotional damage is immeasurable. Wisconsin has been especially hard-hit by the teen drinking epidemic; the state has the highest national rate of underage drinking.4

    In Wisconsin, when an intoxicated underage person injures or kills someone, people who knowingly sold or provided the alcohol can be liable for negligence. Wisconsin courts generally have premised liability of social hosts (alcohol providers other than commercial vendors such as bars or liquor stores) on affirmative actions such as purchasing alcohol for, or giving alcohol to, the underage person or contributing money toward his or her alcohol purchase.

    Recently the Wisconsin Supreme Court addressed whether to impose liability when the defendants' only roles were as owners of property where an underage drinking party was held. In Nichols v. Progressive Northern Insurance Co.,5 involving the claims of a family injured in a collision with the car of an intoxicated teen who drank at the party, the court held that the property owners, who were aware of the drinking but did not provide the alcohol, could not be liable for common-law negligence. According to the court, such an extension of liability "would have no sensible or just stopping point" and should be left to the legislature.

    This article explores the history of social host liability in Wisconsin for underage drinking and the current state of the law in view of the Nichols decision.6

    Background

    Section 125.07. Wisconsin prohibits alcohol possession or consumption by people under age 21 unless they are with a parent, guardian, or spouse over age 21.7 Wis. Stat. section 125.07(1)(a) sets forth restrictions and prohibitions against providing alcohol to such unaccompanied underage persons.8 Foremost among these is that no person9 "may procure for, sell, dispense or give away any alcohol beverages to any underage person not accompanied by his or her parent, guardian or spouse who has attained the legal drinking age."10

    Wis. Stat. section 125.07(1)(a) also provides that an adult may not "knowingly permit or fail to take action to prevent" an underage person's illegal alcohol consumption "on premises owned by the adult or under the adult's control," except when alcohol beverages are used exclusively as part of a religious service.11 Because premises is defined as property subject to a liquor license or permit,12 courts to date have held that this proviso does not apply to other properties owned by adults, such as private residences.13 Additionally, an adult may not "intentionally encourage or contribute to" an underage person's illegal possession or consumption of alcohol.14

    People who violate Wis. Stat. section 125.07(1)(a) are subject to a civil forfeiture penalty or, for repeat offenses, a misdemeanor conviction with a fine, jail time, or both.15

    Civil Liability. Wisconsin adheres to the common law rule that people injured by an intoxicated adult have no cause of action against the liquor provider, whether the provider is a vendor or a social host.16 For many years, the same rule applied in cases involving underage drinkers as well.17

    In 1984, things changed. In Sorenson v. Jarvis,18 the Wisconsin Supreme Court held that a vendor who negligently supplies alcohol to a minor, causing intoxication and impaired driving ability, is liable to injured third persons. The following year, in Koback v. Crook,19 the supreme court extended liability to social hosts who provide alcohol to a minor.

    Koback involved a negligence claim against parents who furnished alcohol at a high school graduation party hosted for their son and his friends. The plaintiff was seriously injured when she was thrown from a motorcycle driven by an intoxicated underage guest leaving the party. The court concluded that a social host who negligently serves or furnishes intoxicating beverages to a minor guest, with the result that the minor becomes intoxicated or has impaired driving ability, shall be liable to third persons in the proportion that the negligence in furnishing the beverage to the minor was a substantial factor in causing an accident or injuries.20

    Wis. Stat. section 125.035. Following the Sorenson and Koback rulings, the Wisconsin Legislature wanted "to discourage the knowing provision of alcohol to underage persons by making providers liable for third-party injuries."21 Therefore, it abrogated immunity for people providing alcohol to underage persons unaccompanied by a parent. It enacted Wis. Stat. section 125.035, entitled "Civil liability exemption: furnishing alcohol beverages." The statute, in effect since Nov. 5, 1985, preserves immunity for furnishing alcohol to adults by providing that "[a] person is immune from civil liability arising out of the act of procuring alcohol beverages for or selling, dispensing or giving away alcohol beverages to another person."22

    Pursuant to Wis. Stat. section 125.035(4), the statute excepts from immunity the knowing provision of alcohol to underage persons if injury to a third party results.23 There is no immunity if 1) a provider procures alcohol beverages for or sells, dispenses, or gives away alcohol beverages to an unaccompanied underage person - thereby violating section 125.07(1)(a); 2) the provider knew or should have known that the underage person was under the legal drinking age; and 3) the alcohol beverages provided to the underage person were a substantial factor in causing injury to a third party.

    A violation of Wis. Stat. section 125.07(1)(a) supports a claim for negligence per se provided that these three elements are satisfied.24 Such claims then of necessity involve scenarios with three principal actors: the provider, the underage person, and the injured third party. There usually is no dispute as to whether an alleged tortfeasor is underage. Any role disputes usually involve whether a particular defendant was a "provider" or whether the plaintiff was a "third party" to the provision of the alcohol.

    Provider Status. People who supply alcohol to an underage drinker who is accompanied by his or her parent retain immunity from liability and, thus, are not "providers" who face liability.25 The legislature presumes that in such situations the parent is minimizing risk by supervising the child. Accompanying requires a degree of individualized supervision.26 A parent's mere presence on the premises, without control over or knowledge of how much the child has had to consume, does not meet the accompanying standard.27 Parents who are accompanying their children also are not subject to liability as providers.28

    Mark R. Hinkston

    Mark R. Hinkston, Creighton 1988 cum laude, practices with Dye, Foley, Krohn & Shannon S.C., Racine.

    In situations involving unaccompanied underage drinkers, whether a person is considered a provider under the statute focuses on the person's acts with respect to the provision of alcohol to the underage person. With the exception of parents who provide alcohol to their children while accompanying the children (in which situations the parents are immune), a person's relationship to the underage person will not have independent significance. Further, age and labels do not determine whether one gets immunity or liability. Thus, both adults and minors can be considered providers, and the fact that a provider is a peer, drinking buddy, or social host is not of import.29 The locale where alcohol is provided also does not determine whether immunity is afforded to the provider. Liability may be imposed whether alcohol is furnished to an unaccompanied underage person at a formal event, such as a graduation party or reception, or informally on a camping trip, at an impromptu backyard party, or at the corner bar.30

    Although the immunity exception is most often implicated in underage drunk driving cases, it is not limited to that scenario.31 Thus, for example, a third party who is assaulted by an underage drinker could take advantage of the immunity exception. The immunity exception also is not limited to specific types of injuries, and there is no express requirement that a third party's injury be caused by intoxication.32 Thus, an assault victim who sues only would have to prove that he or she was a third party injured because the defendant provided alcohol to an underage person, not that the underage person was intoxicated.

    The Scope of "Procuring" Alcohol. To be considered a provider, one must knowingly "procure for, sell, dispense or give away" alcohol in violation of Wis. Stat. section 125.07(1)(a). It usually is easy to discern when someone sells, dispenses, or gives away alcohol, and most cases involving the illegal provision of alcohol will fall under one of those categories. However, on occasion courts have faced scenarios in which a person's role is less direct than that of a seller or one who gives alcohol directly to the underage person. This has necessitated exploration of what it means to procure alcohol for an underage person.

    In 1997, in Miller v. Thomack,33 the supreme court considered a case in which underage friends gave money to a friend of legal age to buy beer. After they drank the beer, one of them caused a crash. The supreme court held that this was sufficient to impose liability on the underage friends, even though they did not actually distribute the alcohol. The court concluded that persons who contribute money to bring about the purchase of alcohol for an underage person whom they know, or should know, is under the legal drinking age, procure alcohol beverages for the underage person within the meaning of Wis. Stat. sections 125.07(1)(a) and 125.035(4).

    Because the statutes and legislative history were silent, the court looked to the common dictionary definition of procure: "to get possession of" or "acquire" or "bring about." It noted that the word was broader than to "furnish" or "provide" something.34 The court held that requiring an affirmative act in addition to purchase (for example, actually giving the alcohol to the minor) was not necessary to constitute procuring.35 However, the court mandated an intent element, stressing that procure requires, "when contributing funds, the intent of bringing about the purchase of alcohol beverages for consumption by an underage person."36 Thus, according to the court, this would not include a parent who gives his son "movie money" despite a suspicion that the son may buy alcohol.37

    "Third Party" Requirement. In assessing whether immunity does or does not apply, in addition to focusing on the defendant's relationship to the provision of liquor to an underage person, courts look at the plaintiff's status as a third party to that transaction.38 The injured party bringing suit must be a "third party" to the provision of alcohol. If the principals to a transaction - the provider and the underage drinker to whom the alcohol is provided - are injured as a result of the provision of alcohol, they are not considered third parties. Thus, people involved in the providing of alcohol to an underage drinker have no claim against other providers.39 Further, an underage drinker injured as a result of his or her drinking has no claim against those who provided the alcohol.40

    There is an exception to the "underage drinker has no claim" rule in situations in which the underage drinker received the alcohol from a companion underage drinker who was illegally provided the alcohol by another person. In 2003, the supreme court in Anderson v. American Family Mutual Insurance Co.41 addressed whether a companion underage drinker was a "third party." In that case, a mother purchased a bottle of vodka for her underage son and left it in the kitchen with a note that he owed her $12. The son and his friends drank the vodka at his family's vacation property. One of the friends died of acute alcohol intoxication.

    The friend's family brought suit against the mother, her homeowner's insurer, and her son. The court of appeals affirmed the circuit court's ruling that the son was immune, holding that neither he nor his friend was a minor at the time "so neither had any heightened duty to supervise the other."42 As for the mother's liability, she could be liable only if the decedent underage drinker was a third party to the subject transaction - the mother's providing of the alcohol to her son. The court found that he was a third party since he had no role in the mother's provision of alcohol to her son.43 The Wisconsin Supreme Court agreed, noting that there was no evidence that the decedent was present at the time the mother provided the vodka to her son, that he contributed money toward its purchase, or that he asked his friend to get vodka from his mother.44 The decedent's status as a companion underage drinker was irrelevant because the immunity statute does not limit third-party status by "age, condition of sobriety, or separation of circumstance from the alcohol consumption," although these are factors relevant to the comparison of negligence.45 The supreme court noted that Wis. Stat. section 125.035 "is not concerned with a person's own contributory liability for providing alcohol to himself, although the injured person's contributory fault may bear upon a defendant's ultimate liability."46

    Common Law Passive Liability: Pre-Nichols

    In Miller v. Thomack,47 the supreme court found a party liable for contributing money toward the purchase of alcohol. But what about a situation of passive liability - in which there has been no affirmative act of providing (selling, dispensing, giving away) alcohol or contributing toward its purchase? That issue was considered by the court of appeals in Miller,48 but not by the supreme court. The court of appeals addressed whether the owners of the vacation resort beach area where minors drank could be held liable under Wis. Stat. section 125.07(1)(a)3. for knowingly permitting or failing to take actions to prevent illegal underage drinking on premises owned or controlled by the adult. The circuit court denied the defendants' summary judgment motion, reasoning that there was a reasonable inference that one of the owners knew that it was likely that teenagers would drink on the beach. The court of appeals reversed, relying on the word knowingly in the statute. It concluded that there must have been evidence that the defendant had actual knowledge that underage drinking was occurring or was going to occur.49 The fact that young persons might drink on the beach did not suffice.

    The plaintiff also argued that even if the statute was not violated, liability could be premised on common law negligence because "it was reasonably foreseeable that underage persons would drink on the beach and then drive, causing harm." The court of appeals declined to "create a common law duty that is broader than the duty" imposed by Wis. Stat. section 125.07(1)(a)3.,50 referencing its decision almost 10 years earlier in Smith v. Kappell.51 In that case, the Wisconsin Court of Appeals refrained from extending liability to a 16-year-old girl who permitted her underage friends to drink in her mother's house. The court noted that other than "possibly furnishing a can opener and drinking some of the beer," her only participation was to allow access to the home for illegal beer drinking.52 The court concluded that extending liability to cover this conduct "based upon common-law negligence would go beyond prior decisions of our Wisconsin Supreme Court."53

    In 2004, in Alderman v. Topper A1 Beer & Liquor,54 the court of appeals again addressed the passive liability issue. Alderman involved the claims of a passenger seriously injured in a car accident caused by an intoxicated underage driver who had been allowed by a friend's parents to drink beer in the parents' home. The parents did not furnish the alcohol, although they were home at the time and at least one of them was aware of the drinking.

    Hearkening back to Smith v. Kappell, the court of appeals held that the Wis. Stat. section 125.035 immunity exception did not apply to claims against the parents because "simply providing a place for an underage person to consume alcohol" does not satisfy the definition of "procure." The court also rejected the common law negligence claim, noting that "case law in Wisconsin clearly indicates that an adult does not have a heightened duty to supervise another adult's underage drinking."55 Although the court noted that it did not condone the parents' failure to take action to prevent or stop the underage drinking, it nonetheless left any change in the law up to the legislature, stating that the "case may provide an incentive for the legislature to extend liability to parents who knowingly allow the illegal consumption of alcohol in their home."56

    The Wisconsin Supreme Court chose to not review the Alderman case. However, a few years later, the court agreed to consider the passive liability issue for the first time when the defendant property owners petitioned for review in the Nichols case.

    Nichols v. Progressive Northern Insurance Co.

    On the evening of June 4, 2004, a group of underage high school students partied on property in Columbia County controlled by Edward and Julie Niesen. Several students consumed alcohol. After leaving, one of the underage drinkers drove her vehicle into oncoming traffic and collided with a vehicle carrying the Nichols family, severely injuring them. The Nicholses brought suit against the underage drinker, her insurer, the Niesens, and their homeowner's insurance company.

    The Nicholses claimed that the Niesens were social hosts who, although they did not provide any alcohol to underage guests, allegedly were aware that minors were consuming alcohol on their property. The Nicholses alleged negligence per se on the part of the Niesens on the basis that the Niesens "knowingly permitted and failed to take action" to prevent the illegal consumption of alcohol by underage persons under their control contrary to Wis. Stat. section 125.07(1)(a)3. The Nicholses also asserted a claim for common law negligence, contending that the Niesens were negligent in failing "to take reasonable steps to supervise and monitor the activities on their property," which included drinking by a large group of minors.

    Court of Appeals. The circuit court granted the Niesens' motion to dismiss the Nicholses' claims of negligence per se and common law negligence. On appeal, the court of appeals57 did not consider or apply the immunity statute (section 125.035) because the Nicholses did not allege that the Niesens provided alcohol. The court of appeals affirmed the dismissal of the negligence per se claim, holding that the Niesens could not be negligent per se for violating section 125.07(1)(a)3. because the Nicholses did not allege that the Niesen property was an "area described in a license or permit," which is the definition of "premises" as used in section 125.07(1)(a)3.58

    The court of appeals reversed the dismissal of the common law negligence claim. The court framed the issue as whether the Niesens owed a duty to refrain from knowingly permitting minors to consume alcohol on their property, thus enabling them, including the driver who injured the Nicholses, to drive while intoxicated.59 The court of appeals concluded that it was reasonably foreseeable that permitting underage high school students to illegally drink on the Niesens' property would result in harm. It held that the Nicholses adequately alleged that the Niesens had a duty to refrain from knowingly permitting illegal underage drinking on their property.60 Because they further alleged a breach of the duty, causation, and damages, the Nicholses stated a claim for common law negligence.61

    The court of appeals then analyzed whether liability was precluded by any of six public policy factors: 1) The injury is too remote from the negligence; 2) the injury is out of proportion to culpability; 3) it appears "too highly extraordinary" that the negligence should have resulted in the harm; 4) "allowing recovery would place too unreasonable a burden on the tortfeasor"; 5) allowing recovery would open the way for fraudulent claims; and 6) "allowing recovery would enter a field that has no sensible or just stopping point."62

    After considering the factors, the court of appeals ruled that the negligence claim should not have been dismissed. The injuries were not too remote from the negligence in that "[a]n underage person has the opportunity to become intoxicated if permitted to do so in an unsupervised location that the underage person may not otherwise have."63 The court also noted that recovery would not unreasonably burden the Niesens because adults who allow underage drinking on their property should anticipate being held accountable for resulting injuries, and permitting such accountability "will discourage adults from allowing this behavior to take place."64 Further, the court believed that because of the specific facts presented, recovery would "not enter a field with no sensible or just stopping point."65 All, in all, the court concluded that "[i]f adults do not knowingly permit underage drinking on their property, they will not become liable for the injuries resulting from underage intoxication."66

    Wisconsin Supreme Court. On appeal to the Wisconsin Supreme Court,67 the Nicholses only sought review of the court of appeals' decision on the common law negligence claim. The supreme court noted that even if the court of appeals held that the Nicholses adequately pleaded a common-law negligence claim, the claim could be denied for public policy reasons.68 It analyzed the six factors applied by the court of appeals (and applied by the supreme court in prior cases).69

    The supreme court focused primarily on the sixth factor: whether "allowing recovery would enter a field that has no sensible or just stopping point." The court discussed its decision a few years ago in Stephenson v. Universal Metrics Inc.,70 in which it refused on public policy grounds to allow a negligence claim against a person who promised to drive a drunk coworker home from a company party so the bartender would continue to serve the coworker. The supreme court in that case noted that "the possibilities for expanding liability would simply have too much potential to grow out of control."71 The Nichols court also referenced Smith v. Kappell, noting that "[l]iability has never been premised on the conduct that the Nichols alleged."72

    The supreme court expressed concern that to allow the claims would expand liability to include parents who should have known that drinking would occur on their property while they were gone and would lead to strict liability of property owners for any underage drinking on their property. The supreme court recognized Judge Deininger's dissent from the court of appeals decision: If such liability is imposed, "then parents or other owners of property occupied by sixteen- to twenty-year-olds will be well-advised to never leave home, or if they must, to ensure that all underage persons go elsewhere as well."73

    The supreme court concluded "that the Nichols' claim should be barred on public policy considerations, since allowing recovery here would have no sensible or just stopping point."74 The court noted that neither the legislature nor prior Wisconsin case law has held a social host liable for the results of a guest's intoxication when that social host did not provide the alcohol. Liability has always required active, direct, and affirmative acts, such as the provision of alcohol (referencing the Stephenson decision).75

    The court concluded "that a claim for common-law negligence cannot be maintained against social hosts who allegedly were aware that minors on their property were consuming alcohol, but who did not provide the alcohol, when an underage guest later was involved in an alcohol-related car accident."76 To hold otherwise would be a significant expansion of common-law liability, which is a task for the legislature, not the court. The supreme court encouraged "the legislature to address the question of whether to hold social hosts accountable for the types of actions alleged in this case."77

    Analysis

    The Nichols decision is not an aberration. Courts of other jurisdictions also have declined to extend liability to people whose only connection to the subject underage drinking event was mere property ownership or knowledge of the drinking.78 The court's deference to the legislature also is not anomalous. The supreme court has consistently yielded to the legislature in matters involving alcohol regulation and control,79 even if it has not always agreed with the legislature's "wisdom" on issues.80

    Although many states have underage drinking statutes, most of them criminalize only the active and knowing provision of alcohol to underage persons. However, some states have now made it illegal for social hosts to knowingly allow or knowingly fail to prevent underage drinking on the property, even if they did not furnish the alcohol.81 Some of the statutes expressly impose civil liability for violations.82 While none of the states appear to have imposed strict liability on social hosts for underage drinking (for example, imposing criminal liability for vacationing parents whose child has a party when they are away), there is a trend among municipalities across the country to pass social host or house party ordinances that impose liability regardless of a property owner's knowledge of underage drinking or provision of alcohol.83

    In Nichols, the plaintiffs unsuccessfully premised negligence per se claims on Wis. Stat. section 125.07(1)(a)3. The other states' statutes that prohibit an owner from allowing underage drinking are similar to the section 125.07(1)(a)3. edict that no adult "may knowingly permit or fail to take action to prevent" illegal underage drinking on the adult's premises. However, unlike the Wisconsin statute, the other statutes expressly apply to social hosts. If the legislature decides that it wishes to expand the Wis. Stat. section 125.035 immunity exception to include social hosts who permit or fail to prevent underage drinking, perhaps it will do so by tweaking the definition of "premises" so that it does not apply by definition to only those with liquor licenses or permits.

    If the legislature does not act in this regard, perhaps some day the Wisconsin Supreme Court will address the issue of the section 125.035 "premises" definition. The plaintiff in Nichols did not ask the supreme court to review the issue of whether section 125.07(1)(a)3. applies to property not subject to a liquor license or permit. Nonetheless, Chief Justice Abrahamson, in her concurring opinion, expressed reservations about what she calls the court of appeals' "sketchy analysis" and "puzzling" interpretation of section 125.07(1)(a)3. in dismissing the complaint.84 Justice Abrahamson noted that when that section "is read in context and in its entirety," the word "premises" seems to mean "property," not an area described in a liquor license or permit.85 Justice Abrahamson's view on the subject may be a harbinger for future litigants that the court may see the "premises" definition as a ripe issue.

    At the end of its opinion, the supreme court reiterated its resolve to, when appropriate, decide negligence cases on public policy grounds.86 In concluding that to allow the plaintiffs' negligence claim "would have no sensible or just stopping point," the court is doing what by its own admission it has in the past called "judicial line drawing" in order "to make a rule in each case that will be practical and in keeping with the general understanding of mankind."87 While the court has drawn a firm line at the feet of passive landowners with cursory knowledge that minors are drinking on their land, the court's reference to allegations that the Nicholses did not make is perhaps significant. For example, the court noted that the Nicholses did not allege that 1) the students gathered at the property because they knew that the Niesens would let them drink alcohol obtained elsewhere;88 2) the Niesens knew, in advance, that the students would be drinking;89 3) the Niesens knew that the tortfeasor driver specifically was drinking or intoxicated, impaired, or unable to safely drive; 90 or 4) the Niesens allowed underage drinking or aided, agreed to assist, or attempted to aid the students in the procurement or consumption of alcohol on premises under their control.91

    Does this litany of omitted allegations portend an opportunity for further "judicial line drawing" if the Wisconsin appellate courts are presented with claims against social hosts who, although they did not actively provide the alcohol, are more than just passive property owners with mere knowledge of underage drinking? For example, what about situations in which a social host does not provide the alcohol but one or more of the following circumstances exist? The property owners have had a long history of turning a blind eye to underage drinking on their property (and the drinkers go there specifically because it is a "safe haven"). The parents have advance notice of a large underage drinking party at their house and their child's illegal purchase of alcohol (and storage of it in the house) but do nothing. Vacationing parents come home early and find intoxicated minors who have no intention of stopping a party (and intend on driving drunk when they do leave). Parents allow drinking of alcohol provided by other people on the condition that the minors agree to hand in their car keys and stay the night (but the minors later renege on that promise). Parents host a graduation party, with many students in attendance, and although they serve no alcohol, other adult guests bring alcohol and provide it to the students. The court's line drawing in Nichols appears to have kept the door open for potential judicial consideration of these contexts.

    Conclusion

    From an emotional and altruistic perspective, it is hoped that courts will never have to consider another underage drinking case. Alas, despite growing efforts to stem the underage drinking tide, it will never be completely eradicated. In view of the ubiquity of social events and the prevalence of alcohol (and youthful determination to procure it), as well as the supreme court's tacit allusion to other scenarios for which the court might impose liability, it is likely that Wisconsin courts will be asked to consider other potential passive liability situations in the future. It also is possible that Justice Abrahamson's concurring opinion will keep the premises-definition issue in play in the absence of legislative intervention.

    In Nichols, the supreme court exercised measured discretion with the appropriate amount of deference to the legislature to decide an issue that hits home with virtually everyone. As for its practical impact, it is unlikely that the decision will cause an influx of underage drinking. One doubts that people will now host such parties en masse provided that others buy the booze or that parents will encourage their children to have parties when they are out of town because they know that no matter what happens, they have no liability if they did not furnish the alcohol. As for future litigants, it obviously is inadvisable for social hosts to interpret the decision, and its deference to the legislature, as a bright-line message that they will never have liability if they just never buy the booze. Further, since the supreme court obviously does not condone underage drinking and abhors drunk driving, its decision is not a license to Wisconsin homeowners to host underage "BYOB" parties with impunity.

    Almost 25 years ago, the Wisconsin Legislature took notice of the supreme court's pronouncements in the Sorenson and Koback cases by vitiating immunity for people providing alcohol to underage persons. It remains to be seen whether the legislature will heed the court's clarion call in Nichols to consider the issue of social host passive liability. Until such time, merely furnishing the locale for the party and not the alcohol - even with knowledge of underage drinking - will not impose liability.

    Endnotes

    1The Surgeon General's Call to Action to Prevent and Reduce Underage Drinking 2007, at 1 (U.S. Department of Health & Human Services) ("T]he highest prevalence of alcohol dependence in the U.S. population is among 18 to 20 year olds … who typically began drinking years earlier").

    2National Research Council & Institute of Medicine (NRC/IOM), Reducing Underage Drinking: A Collective Responsibility 3, R.J. Bonnie & M.E. O'Connell, eds. (Washington, DC: The National Academies Press, 2004) (noting that underage drinking is associated with violence, suicide, traffic fatalities, educational failure, and other behavioral problems and estimating that underage drinking in 1996 led to 3,500 deaths, two million nonfatal injuries, and at least $53 billion in social costs).

    3Id. Underage drinking cost Wisconsin citizens $1.2 billion in 2005. Underage Drinking in Wisconsin - The Facts, Underage Drinking Enforcement Training Center <www.udetc.org/factsheets/Wisconsin.pdf >.

    4Impact of Alcohol and Illicit Drug Use in Wisconsin (University of Wisconsin Population Health Institute Sept. 2007).

    52008 WI 20, -- Wis. 2d --, 746 N.W.2d 220.

    6Prior articles have addressed liability for serving alcohol to adults. See Nina J. Emerson & Sarah B. Stroebel, Another Look at Dram Shop Liability, 73 Wis. Law. 8 (Aug. 2000); W. Barton Chapin, Liquor Vendors and Social Hosts: Are They Still Immune from Serving Adults?, 68 Wis. Law. 18 (Dec. 1995); W. Barton Chapin, Liquor Vendors and Social Hosts: Are They Immune from Civil Liability?, 65 Wis. Law. 11 (Dec. 1992).

    7Wis. Stat. § 125.07(4)(a). "Underage person" means a person who has not attained the legal drinking age. Wis. Stat. § 125.02(20m). As in all states, the "legal drinking age" in Wisconsin is 21. Wis. Stat. § 125.02(8m). Thus, in Wisconsin one may sell or provide alcohol to an underage person, and the underage person may consume it, if he or she is accompanied by a parent. Mueller v. McMillan Warner Ins. Co., 2005 WI App 210, ¶ 15, 287 Wis. 2d 154, 704 N.W.2d 613, aff'd on other grounds, 2006 WI 54, 290 Wis. 2d 571, 714 N.W.2d 183.

    8The statute refers to underage persons and not minors because a minor generally is considered someone under age 18. Use of the "underage" moniker allows enforcement of the laws against adults age 18 to 20 who, although no longer minors, are still under the legal drinking age of 21.

    9Person means "a natural person, sole proprietorship, partnership, limited liability company, corporation or association or the owner of a single-owner entity that is disregarded as a separate entity under ch. 71." Wis. Stat. § 125.02(14). It includes both adults and children. Miller v. Thomack, 210 Wis. 2d 650, 669, n.9, 563 N.W.2d 891 (1997).

    10Wis. Stat. § 125.07(1)(a)1. While this section also applies to people holding municipal liquor licenses or Department of Revenue alcohol permits (licensees and permittees), a specific prohibition also provides that "[n]o licensee or permittee may sell, vend, deal or traffic in alcohol beverages to or with any underage person not accompanied by his or her parent, guardian or spouse who has attained the legal drinking age." Wis. Stat.§ 125.07(1)(a)2.

    11Wis. Stat. § 125.07(1)(a)3.

    12Wis. Stat. § 125.02(14m).

    13Nichols v. Progressive N. Ins. Co., No. 06-364, 2007 WL 189053, ¶ 10 (Wis. Ct. App. Jan. 25, 2007) (unpublished opinion) (dismissing claim because there was no allegation that the property was an "area described in a license or permit"); Alderman v. Topper A1 Beer & Liquor, No. 03-1500, ¶ 18 (Wis. Ct. App. March 23, 2004) (unpublished opinion) (rejecting plaintiff's "credible argument" that "premises" should include social host's home because statute specifically defines term "premises," and the home does not fit that definition); State v. Willoughby, No. 97-1201-FT (Wis. Ct. App. Aug. 13, 1997) (unpublished opinion) (holding that defendant's premises was not covered because he lived in residential apartment that had not been issued a license or permit under chapter 125).

    14Wis. Stat. § 125.07(1)(a)4. It also is illegal to provide alcohol to an intoxicated person. Wis. Stat. § 125.07(2).

    15Underage drinkers who violate the law face a civil forfeiture, driver's license suspension, or a supervised work program or other community service obligation, or a combination of these penalties. Wis. Stat. § 125.07(4).

    16Farmers Mut. Auto. Ins. Co. v. Gast, 17 Wis. 2d 344, 352, 117 N.W.2d 347 (1962).

    17Id. at 353.

    18119 Wis. 2d 627, 350 N.W.2d 108 (1984).

    19123 Wis. 2d 259, 366 N.W.2d 857 (1985) .

    20Id . at 276-77.

    21Anderson v. American Family Mut. Ins. Co., 2003 WI 148, ¶ 34, 267 Wis. 2d 121, 671 N.W.2d 651. See also Miller, 210 Wis. 2d at 669 (noting that "[i]n enacting § 125.07(1)(a)1 and § 125.035(4) the legislature was evidently concerned with deterring dangerous behavior by placing liability on only those who are culpable, that is, those who know or should have known the person was underage").

    22Wis. Stat. § 125.035(2). "Person" as used in this section has the meaning given in Wis. Stat. section 990.01(26). Wis. Stat. § 125.035(1). Pursuant to Wis. Stat. section 990.01(26), person includes all partnerships, associations, and bodies politic or corporate.

    23There also is no immunity "if the person procuring, selling, dispensing or giving away alcohol beverages causes their consumption by force or by representing that the beverages contain no alcohol." Wis. Stat. § 125.035(3).

    24Miller, 210 Wis. 2d at 658 n.7.

    25Mueller, 2005 WI App 210, ¶ 10, 287 Wis. 2d 154.

    26Id. ¶ 13.

    27Id. ¶ 16.

    28Id . ¶ 12.

    29Harmann v. Hadley, 128 Wis. 2d 371, 377, 382 N.W.2d 673 (1986).

    30Id .

    31Anderson, 2003 WI 148, ¶ 24, 267 Wis. 2d 121.

    32Id.

    33210 Wis. 2d 650, 563 N.W.2d 891 (1997).

    34Id . at 661-62.

    35Id. at 665-66.

    36Id. at 667.

    37Id. at 666-67. See also Shea v. Haas, Nos. 99-3330, 00-0295 (Wis. Ct. App. Dec. 21, 2000) (unpublished opinion) (holding that person whose "participation was limited solely to permitting the use of the keg tapper" was "insufficient to come within the statutory prohibition of `procuring' alcohol for underage drinkers within the meaning of" Wis. Stat. section 125.07).

    38See Anderson, 2003 WI 148, ¶ 15, 267 Wis. 2d 121.

    39See Meier v. Champ's Sport Bar & Grill, Inc., 2001 WI 20, ¶ 25, 241 Wis. 2d 605, 623 N.W.2d 94 (stating that "[a]n individual may not provide injury-causing alcohol and also claim to be a third party in order to take advantage of the exception to immunity in an action against another provider").

    40Id. ¶ 27.

    412003 WI 148, 267 Wis. 2d 121, 671 N.W.2d 651.

    422002 WI App 315, ¶ 20, 259 Wis. 2d 413, 655 N.W.2d 531.

    43Id. ¶ 12.

    442003 WI 148, ¶ 19, 267 Wis. 2d 121.

    45Id. ¶ 25. See Mueller, 2005 WI App 210, ¶ 22, 287 Wis. 2d 154 (noting that, as in Anderson, there is no evidence that the injured person asked the parents to procure alcohol for her and no evidence she paid the parents for it and neither parents saw her drunk and there was no evidence about how, if she did drink, she obtained alcohol; the court concluded that "summary judgment was improper because there is a material question of fact as to whether [injured plaintiff] was a principal to the transaction between Apollo and his parents or whether she was an underage drinker injured as a result of alcohol illegally provided to a companion underage drinker").

    46Id. ¶ 15.

    47210 Wis. 2d 650, 563 N.W.2d 891 (1997).

    48204 Wis. 2d 242, 555 N.W.2d 130 (Ct. App. 1996).

    49Id. at 254-55.

    50Id. at 257.

    51147 Wis. 2d 380, 385-86, 433 N.W.2d 588 (Ct. App. 1988).

    52Id. at 383.

    53Id. at 388.

    54No. 03-1500 (Wis. Ct. App. March 23, 2004) (unpublished opinion).

    55Id. ¶ 20.

    56Id. ¶ 14.

    57No. 06-364, 2007 WL 189053 (Wis. Ct. App. Jan. 25, 2007) (unpublished opinion).

    58Id . ¶ 8.

    59Id . ¶ 18.

    60Id . ¶ 23.

    61Id. ¶ 25.

    62Id. ¶ 33.

    63Id. ¶ 34.

    64Id. ¶ 35.

    65Id.

    66Id.

    672008 WI 20, -- Wis. 2d --, 746 N.W.2d 220.

    68Id. ¶ 19.

    69Id. ¶¶ 20-33.

    702002 WI 30, 251 Wis. 2d 171, 641 N.W.2d 158.

    71Id. ¶ 50.

    72Id.

    73Id. ¶ 31.

    74Id.

    75Id. ¶ 33.

    76Id.

    77Id. ¶ 32.

    78The courts that have considered situations in which parents were neither present, nor supplied the alcohol in any way, have consistently refused to impose a duty on those parents. Knight v. Rower, 742 A.2d 1237 (Vt. 1999) (even though "the costs of underage drinking are high" and circumstances of the particular case are "tragic," court could not agree "that imposing a duty upon all owners of real property to control the activities of all licensees on the basis of mere ownership would be either fair to the owners or in the best interests of public policy"). See, e.g., Rangel v. Parkhurst, 779 A.2d 1277 (Conn. App. 2001) (parents not negligent as matter of law for letting son store beer in basement because "our case law does not impose liability on parents who know of and acquiesce in their minor child's storage of alcoholic beverages in their home" and there "was no evidence that the defendants supplied or purveyed beer" to the son); Manuel v. Koonce, 425 S.E.2d 921 (Ga. App. 1992) (parents who did not furnish alcohol to son and his minor guests, were absent from home, and had no reason to anticipate son and friends would obtain alcohol were not liable for deaths caused by minor driver to whom son had given alcohol as there was no evidence that parents "knew or should have known" that their son had propensity to provide alcohol to underage guests at their home); Snyder v. Fish, 539 N.W.2d 197 (Iowa App. 1995) (no recovery against parents who allowed party to continue after they returned home as they could not be held liable absent any evidence that they provided beer or hosted party); O'Flynn v. Powers, 646 N.E.2d 1091 (Mass. App. 1995) (mother who neither supplied alcohol nor served it to guests of teenage children was not liable as social host to injured party because she did not know that there was to be a party and had taken some steps to prevent drinking by children in her house); Winwood v. Bregman, 788 A.2d 983 (Pa. Super. 2001) (no social host liability on parents for "the perfectly mundane event of storing alcohol in their home in an unlocked area" even though there was knowledge that "their daughter was entertaining her friends at the home" while parents were away); Daniels v. Carpenter, 62 P.3d 555 (Wyo. 2002) ("t here is no liability unless the defendant parents/homeowners provided the alcohol to the minor guests" and "the mere failure of parents/homeowners to supervise the minors does not, without more, create a duty to protect third parties from harm caused by an intoxicated minor driver under these circumstances").

    79See, e.g., Stephenson, 2002 WI 30, ¶ 40, 251 Wis. 2d 171 ("The legislature is well within its power to modify the statute and extend liability to persons in circumstances similar to Kreuser's. We, however, feel that we cannot do so without overstepping our bounds"). The court of appeals also has expressed deference. See Alderman, No. 03-1500, ¶ 14 ("Our legislature has taken an active role in attempting to dissuade underage drinking and driving. It has enacted legislation, which imposes liability on both vendors and social hosts under certain conditions. This case may provide an incentive for the legislature to extend liability to parents who knowingly allow the illegal consumption of alcohol in their home. But until the legislature sees fit to enact such legislation, we must follow the current statutes").

    80See Doering v. WEA Ins. Group, 193 Wis. 2d 118, 129, 532 N.W.2d 432 (1995) ("Although the court may disagree with the wisdom of sec. 125.035(2), it is the constitutionality of the statute, not its wisdom, which the court must address").

    81See, e.g., Florida: 856.015, Fla. Stats. ("No person having control of any residence shall allow an open house party to take place at said residence if any alcoholic beverage or drug is possessed or consumed at said residence by any minor where the person knows that an alcoholic beverage or drug is in the possession of or being consumed by a minor at said residence and where the person fails to take reasonable steps to prevent the possession or consumption of the alcoholic beverage or drug"); Hawaii: 712-1250.5 (illegal to knowingly permit a person under twenty-one to possess intoxicating liquor while on property under his or her control); Michigan: MCL 750.141a ("[A]n owner, tenant, or other person having control over any premises, residence, or other real property shall not: … (a) Knowingly allow a minor to consume or possess an alcoholic beverage at a social gathering on or within that premises, residence or other real property. (b) Knowingly allow any individual to consume or possess a controlled substance at a social gathering on or within that premises, residence or other real property." A plaintiff may establish a rebuttable presumption that the defendant violated this section by showing that: 1) the defendant had control over the premises, residence, or other real property; 2) the defendant knew that a minor was consuming or in possession of an alcoholic beverage or knew that an individual was consuming or in possession of a controlled substance at a social gathering on or within that premises, residence, or other real property; or 3) the defendant failed to take corrective action); Rhode Island: G.L. § 3-8-11.1 ("Furnishing or procurement of alcoholic beverages for underage persons. [I]t is unlawful for any person twenty-one (21) years of age or older: …(5) to otherwise permit the consumption of alcohol by underaged persons in his or her residence.").

    82See, e.g., Colo. Rev. Stat. § 12-47-801(4)(a)(I) (social host is civilly liable for furnishing alcohol to underage person or knowingly providing underage person with place to consume alcoholic beverage). In 2004, Illinois enacted the Drug or Alcohol Impaired Minor Responsibility Act, which provides a cause of action, with entitlement to compensatory damages, punitive damages, and attorney fees, against persons who provide alcohol to a person under 18 or "who, by willfully permitting consumption of alcoholic liquor or illegal drugs on non residential premises owned or controlled by the person over the age of 18, causes or contributes to the impairment of the person under the age of 18." 740 ILCS 58/1.

    83John Ritter, Adults Penalized for Teen Drinking, USA Today (Jan. 7, 2007) (highlighting various municipal ordinances and stating "[p]arents don't get off the hook if they're out of town or are unaware of an underage drinking party. Parents often can be cited if they knew or `should have known' teens might drink illegally at home"). See, e.g., City of San Diego Ordinances, § 56.62 (a)(1) (anyone having control of any residence or private property who allows gathering has duty to take all reasonable steps to prevent consumption of alcohol by any minor; reasonable steps include controlling access to alcohol, checking IDs, and supervising minors' activities).

    842008 WI 20, ¶¶ 54, 58, -- Wis. 2d -- (Abrahamson, C.J., concurring).

    85Id. ¶ 60.

    86Id. ¶ 47.

    87Fandrey v. Am. Fam. Mut. Ins. Co., 2004 WI 62, ¶ 15, 272 Wis. 2d 46, 680 N.W.2d 345.

    882008 WI 20, ¶ 23, -- Wis. 2d --.

    89Id. ¶ 20.

    90Id. ¶ 29.

    91Id. ¶¶ 20, 25.

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