02-0980 Anderson v. American Mutual Insurance Company

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“While Craig Anderson’s consumption of the alcohol may well affect the factfinder’s evaluation of his contributory negligence, it does not alter his status as a third party to the original illegal transaction between Mary Anne Brasure and her son for purposes of the statutory exception to immunity….

“Mary Anne contends that because Craig consumed the vodka that ultimately killed him, he himself is a ‘provider’ under the terms of the statute and therefore cannot also be a third party. Mary Anne reasons that Craig is a ‘provider’ because he ‘procured’ the vodka from Gregory before drinking it; in other words, he ‘provided’ the vodka to himself by drinking it with Gregory. This use of the term ‘provider’ is illogical and runs contrary to the use of the term in the statute….

“No one has pointed to facts suggesting that Craig asked his friend Gregory to get vodka from his mother or otherwise participated in any way in Mary Anne’s provision of the alcohol to Gregory. In short, nothing in the record suggests that Craig had any role whatsoever in Mary Anne’s provision of alcohol to Gregory. We conclude that Craig is a third party with respect to that transaction….

“Accordingly, we conclude that an underage drinker who is injured or dies as a result of the consumption of alcohol that was illegally provided to a companion underage drinker is an injured third party for purposes of the exception to immunity under Wis. Stat. § 125.035(4)(b). The exception applies under these circumstances, and the Andersons may proceed with their suit against Mary Anne for the death of their son, Craig, arising out of Mary Anne’s provision of alcohol to her underage son, Gregory. While Craig’s own consumption will bear upon his contributory negligence, it does not affect his status as a third party to Mary Anne’s provision of alcohol to Gregory for purposes of the statutory exception to immunity.”

The decision of the Court of Appeals is affirmed.

Court of Appeals, Sykes, J.

Attorneys:

For Appellant: Frank W. Kowalkowski, Green Bay

For Respondent: Mark A. Pennow, Tina M. Dahle, Green Bay