May 6, 2015 – Spring in Wisconsin: Ice disappears, robins return from hiatus, and the crack of the bat resonates at Milwaukee’s Miller Park. Another iconic springtime tradition is high school prom, when many of the more than 60,000 high school students will don formal attire to celebrate and reminisce.
In the ensuing weeks, high school students will also attend graduation parties. Usually these festive events are unforgettable as the optimistic denouement of high school and exciting harbinger of future potential. Yet the normally idyllic gatherings can also be unforgettable for a far more somber reason: the tragic consequences of underage drinking, most notably fatal crashes and violent crimes.
The June 2008 Wisconsin Lawyer article, “Social Host Liability for Underage Drinking,” highlighted one such tragedy. In Nichols v. Progressive Northern Insurance Company,1 the Wisconsin Supreme Court considered the case of a family injured in a crash with a vehicle driven by a teenager who had been at an underage drinking party.
The court held that social hosts who allegedly were aware of minors drinking on their property but who did not provide the alcohol were not liable for the injuries caused by the underage guest.
In the seven years since Nichols, there have been no significant changes in Wisconsin law as to social host liability. However, there have been some notable developments, including the passage of social host ordinances.
The approach of prom and graduation celebrations, and the possibility of tragedy anytime there is underage drinking, warrants the following refresher on social host liability for underage drinking and focus on recent developments in the context.
In Wisconsin, those under 21 may possess or drink alcohol only when they are “accompanied” by their parent. According to the federal government, during the month before graduation, it is likely that almost half of Wisconsin high school seniors will have had at least one drink and just over a quarter will have engaged in binge drinking (five or more drinks in a row within a couple hours).
One can safely presume that the vast majority of this drinking will not be done with parental accompaniment. Yet, one can safely presume that in the context of high school celebrations, some parents will host gatherings where there will be one or more underage drinkers. Some do so by choice, providing the alcohol, the place, or both. Others do so passively, choosing to not prohibit or prevent underage guests from drinking.
Whether active or passive, there are serious legal consequences to those who host underage drinkers, especially when an intoxicated underage guest causes injury or death. These include forfeitures and penalties, civil liability under Wis. Stat. section 125.07, exposure under sponsorship and parental responsibility laws, and fines for violating social host ordinances.
Section 125.07: Forfeitures and Criminal Penalties
Chapter 125 of the Wisconsin Statutes, which governs the production and sale of alcohol, imposes civil and criminal penalties for providing alcohol to underage persons. Section 125.07 makes it illegal for a person to “procure for, sell, dispense or give away any alcohol beverages” to any person under age 21 “not accompanied by his or her parent, guardian or spouse who has attained the legal drinking age.”
An adult also may not "intentionally encourage or contribute to" an underage person's illegal possession or consumption of alcohol.
Offenders face a civil forfeiture of $500 or, for repeat offenses, a misdemeanor conviction (with a fine, jail time, or both). The penalty is much harsher – a felony – if a person provides alcohol to someone under age 18 and the minor dies or suffers great bodily harm as a result.
Civil Liability: Common Law Negligence and Negligence Per Se
Fines and forfeitures may pale in comparison to the civil liability for damages a host faces when an intoxicated underage person injures or kills another as a result.
In 1985, in Koback v. Crook,2 the Wisconsin Supreme Court held that a social host who negligently serves a minor guest alcohol, causing conduct by the guest that results in injury can be held liable. Koback arose out of a high school graduation party hosted by an 18-year-old and his parents. They furnished beer to underage attendees, including a 17-year-old intoxicated motorcyclist who after leaving the party hit a parked car, throwing and severely injuring his 17-year-old passenger.
Those who provide alcohol to an adult are immune from liability for injuries caused by the adult to third parties. Following Koback, the Wisconsin Legislature enacted section 125.035 to except from immunity the knowing provision of alcohol to underage persons where injury to a third party results. One can be liable for negligence per se if: 1) he or she procures for or gives alcohol to an unaccompanied underage person; 2) he or she knew or should have known that the recipient was underage; and 3) the alcohol provided was a substantial factor in causing injury to a third party.
Most homeowner’s insurance policies will not provide coverage for liability arising from an insured’s hosting of an underage drinking party. In Schinner v. Gundrum,3 the Wisconsin Supreme Court held that there was no insurance coverage for injuries from an assault at an underage drinking party hosted at a shed owned by a family business. It concluded that the host’s actions in setting up the party, procuring alcohol, inviting underage guests, and encouraging them to drink “were intentional actions that violated the law” and a substantial factor in causing the victim’s bodily injury. Thus, the injury was not caused by an “occurrence” and the insurer was not obligated to provide coverage. To find coverage, the court declared, would send a wrong message: “that whatever tragic consequences might occur, insurance companies will be there to foot the bill.”
Parental Liability Statutes
Driver’s license sponsorship. Even if parents have not hosted an underage party, they face great financial exposure if their minor child driver causes an accident after drinking. Wisconsin requires anyone under 21 to be absolutely sober when driving as it is illegal for underage persons to drive with an alcohol concentration of more than zero.4
Pursuant to section 343.15, a person under 18 cannot obtain a Wisconsin driver’s license unless their license application is signed by a parent, stepparent, or other adult sponsor. By signing the application, the adult is jointly and severally liable with the minor driver for any damages caused by the driver’s negligent or willful misconduct.
Damages for willful or malicious acts. Also, pursuant to section 895.035 (“Parental liability for acts of minor child”), parents may be liable for damages to property or personal injury attributable to their child’s willful, malicious, or wanton act. The maximum recovery is $5,000 plus taxable costs and disbursements and reasonable attorney fees.
Social Host Ordinances: Combatting Against Passive Furnishing
Liability is usually clear in cases where an adult provides the locale and alcohol for an underage party. It is less so where an adult furnishes none of the alcohol but provides a place to drink. Section 125.07(1)(a)3 provides that: “[n]o adult may knowingly permit or fail to take action to prevent the illegal consumption of alcohol beverages by an underage person on premises owned by the adult or under the adult's control.”
Because “premises” is defined as property subject to a liquor license or permit, courts have refused to apply this proviso to other properties, such as private residences. And as noted earlier, the Wisconsin Supreme Court in Nichols held that a common law negligence claim could not be maintained against property owners who did not provide the alcohol.
While the supreme court in Nichols left it to "the legislature to address the question of whether to hold social hosts accountable for the types of actions alleged” in that case,5 to date it has not done so.
Wisconsin communities have tried to fill in the gap. Since 2008, at least 20 municipalities and three Wisconsin counties have passed “social host ordinances” imposing fines on those who host gatherings where underage drinking occurs where the person fails to take reasonable steps to prevent underage drinking, regardless of who provides the alcohol.
Most are similar to that of the City of Manitowoc.6 Under the ordinance, it is unlawful for a person to “host or allow an event or gathering at any residence, premises or on any other private or public property where alcohol or alcoholic beverages are present when the person knows that an underage person will or does (i) consume any alcohol or alcoholic beverage; or (ii) possess any alcohol or alcoholic beverage with the intent to consume it; and the person fails to take reasonable steps to prevent possession or consumption by the underage person(s).” Under the ordinance:
The host does not have to be present at the event or gathering or provide the alcohol to be responsible;
“Event or gathering” means any group of three or more persons who have assembled for a social occasion or other activity. (Racine’s ordinance includes gatherings of just two individuals.)
“Host” or “allow” means to aid, conduct, entertain, organize, supervise, control or permit a gathering or event.
“Residence,” “premises,” or “public or private property” includes hotel or motel room and a hall or meeting room, park or any other place of assembly for parties or social functions “whether owned, leased, rented or used with or without permission or compensation.” This broad scope recognizes the modern trend of having parties at hotels and banquet halls.
A person who violates the ordinance is subject to a forfeiture of not less than $1,000 nor more than $5,000, plus prosecution costs. (In some jurisdictions, the forfeiture range is from $100 to $1,000)
Thirty years ago in Koback, the Wisconsin Supreme Court dismissed the argument that to impose social host liability would destroy the “joie de vivre and congeniality of numerous social events” and noted that having “carefree” get-togethers “where the host does not exercise care is to invite injury, suffering, and death, and, as a matter of social policy, liability for the consequences.”7
Adults who host prom or graduation festivities can never be “carefree” in view of the prevalence of underage drinking, underage persons’ ease of access to alcohol, and some adults’ acceptance of youth drinking under the guise of nostalgia and tradition.
Knowledge of, and adherence to, the laws attendant to underage drinking can help ensure that for those students attending celebrations, the events can be some of the best of their life and not the last of their life.
1 2008 WI 20, 308 Wis. 2d 17, 746 N.W.2d 220.
2 123 Wis. 2d 259, 366 N.W.2d 857 (1985).
3 2013 WI 71, 349 Wis. 2d 529, 833 N.W.2d 685.
4 § 346.63(2m), Wis. Stats.
5 2008 WI 20, ¶ 32.
6 Manitowoc Municipal Code §14.04 (“Social Host”).
7 123 Wis. 2d at 276.