Immunity Case Analysis

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Should the decision in this case receive further review in the Wisconsin Supreme Court, that portion of the decision abrogating Mary Anne’s immunity is all but certain to be reversed.

The court of appeals in this case set forth section 125.035(4)(b) in full, but neglected to make any mention of section (4)(a), which provides, "In this subsection, ‘provider’ means a person, including a licensee or permittee, who procures alcohol beverages for or sells, dispenses or gives away alcohol beverages to an underage person in violation of Sec. 125.07(1)(a) (emphasis added)."

Section 125.07(1)(a)1. provides, "No person 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."

Thus, it was not a violation of sec. 125.07(1)(a) for Mary Anne to buy her underage son a bottle of vodka; as his parent, it was legal. Consequently, pursuant to sec. 125.035(4)(a), she is not a "provider" of alcohol under the immunity exception in 125.025(4)(b).

Therefore, her actions remain cloaked in the immunity conferred in sec. 125.035(2).

Furthermore, while some people may be horrified by Mary Anne’s actions in buying a bottle of vodka for her underage son, with a note saying, "Greg, you owe me $12," the result is perfectly logical under the statute, nevertheless.

	Links Wisconsin Court of Appeals Related Article Third-party exception precludes immunity

Suppose that a 20-year-old and his father entered a restaurant, and the waitperson served alcohol to the 20-year-old with his father’s permission. Suppose then that the 20-year-old became intoxicated, and drove the two of them home instead of his father, injuring a third party in the process.

Under the court of appeals’ analysis, the waitperson and restaurant would lose immunity because they knowingly provided alcohol to an underage person, and the alcohol was a substantial factor in causing injury to a third person. Yet, the "transaction" would be perfectly legal, and not just cause for losing immunity.

It may be that, after this decision is reversed by the Supreme Court, and the Legislature becomes aware of its ramifications, it may wish to distinguish between the actions of Mary Anne and the theoretical restaurant.

Or it may amend the statute so that, in the restaurant hypothetical, the father loses immunity, but not the restaurant. That, however, is a decision for the Legislature, not the courts.

Under the statute as it is currently written, Mary Anne retains her immunity under sec 125.03(2), because sec. (4)(a) precludes the immunity exception in sec. (4)(b).

– David Ziemer

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David Ziemer can be reached by email.