The court noted in its discussion that, usually, alcohol immunity issues arise in cases of accidents caused by intoxication. Presumably, therefore, most cases in which this case will be cited for authority will involve underage persons who cause automobile accidents after drinking at social gatherings with the consent of one or both parents.
Unfortunately, the decision provides little guidance for those cases when they ultimately arise.
The court purports to set forth a clear rule as follows: the exception to immunity under Wis. Stat. sec. 125.035(4)(b) applies when: 1) the injured person is a third party to the providers act of furnishing alcohol to an underage person when the provider knew or should have known the person was underage; and 2) the alcohol was a substantial factor in causing the third partys injury.
However, the rule is flawed in two respects. First, the phrase in violation of sec. 125.07(1)(a), should be included in the rule, in between underage person and when the provider knew.
Without the inclusion of this language, a tavern, liquor store, or social host, would lose immunity, even though its provision of alcohol to a minor was lawful, because the minor was accompanied by a parent, guardian or spouse of legal age.
Second, the decision is flawed for failing to address why Mary Anne loses immunity when she provided alcohol for an underage son, even though, as his parent, she could permit others to provide alcohol for him.
Suppose that Mary Anne had provided alcohol to Gregory while he was accompanied by his father. She would apparently be immune in that case, and so would the father. Under the courts language, both parents could claim immunity because the son was accompanied by the other parent.
Likewise, if Gregory and Mary Anne were at a liquor store or social place, and the purveyor sold alcohol directly to Gregory (legally, because he was accompanied by his parent), both the seller and Mary Anne would seem to be immune. Under the transactional focus of the court, this is a legal transaction, and there is no exception to the providers immunity.
The only way Mary Anne could lose immunity in this situation would be if the court were to create a second and wholly-fictitious transaction at some point when Mary Anne and Gregory happened to part ways, with Gregory in possession of the alcohol, and no longer accompanied by a parent, guardian or legal-age spouse.
The Supreme Courts decision is an improvement on the court of appeals decision, which by failing to even cite sec. 125.07(1)(a), implied that liquor stores and taverns could lose immunity despite engaging in wholly legal transactions.
However, by failing to address the relevance of Mary Annes status as a parent who could legally consent to others provision of alcohol to Gregory, the decision provides little guidance in similar cases considering a parents immunity.
– David Ziemer
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David Ziemer can be reached by email.