00-1397 Stephenson v. Universal Metrics, Inc.

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“Holding that Kreuser’s actions fit within the definition of procurement keeps with the legislative intent of § 125.035(2). In contrast to subsection (4)(a), where the legislature created a clear and specific prohibition on acts that allow minors access to alcohol, in subsection (2) the legislature made a clear grant of immunity to those persons who furnish alcohol to other adults. This intent was recognized by the court of appeals in Greene, and we agree with that interpretation. …

“With that said, we recognize that this case is a tragic one – a case for which Stephenson justifiably feels that there should be some recourse. However, with regard to negligent acts that occur because of a person’s intoxication, the legislature has expressed its intent to focus liability on the person who drinks the alcohol and not on the person who furnishes it or brings about its acquisition. 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. Given the legislature’s pronouncement in § 125.035 and the common definition of ‘procure,’ we must hold that Kreuser is immune from liability under § 125.035(2).”

Finally, we think that it is more appropriate that the legislature decide whether or not someone who agrees to drive an intoxicated person home should be an exception to the legislature’s general policy of holding the intoxicated persons themselves liable for injuries they cause.

Reversed.

CONCURRING OPINION: Sykes, J., concurring. “This tragic case raises important questions about liability for harm caused by drunk drivers. I agree with the majority’s conclusion that § 324A of the Restatement applies to the analysis of “designated driver” liability. I also agree with the majority’s conclusion that public policy considerations operate to preclude designated driver liability here. The case for statutory immunity is weaker, however, because the designated driver’s alleged liability in this case does not stem from his ‘procurement’ of alcohol for the drunk driver – immunized under Wis. Stat. § 125.035(2) – but from his failure to drive the drunk home.”

DISSENTING OPINION: Abrahamson, Ch. J., with whom Bradley, J., joins. “I agree with Part I of the majority opinion, the order of the circuit court, and the decision of the court of appeals. All impose liability on Kreuser for failing to keep his promise to drive an intoxicated driver home. However, I disagree with Parts II and III of the majority opinion, which relieve Kreuser of liability for breaking his promise.

Court of Appeals, Wilcox, J.

Attorneys:

For Appellant: James M. Fredericks, Milwaukee

For Respondent: Michael L. Bertling, Menomonee Falls