Parent of underage drinker not immune

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“That Craig may be considered a first party to a subsidiary transaction between himself and Gregory (because they consumed the alcohol together) does not make him a party to the transaction by which Mary Anne provided the alcohol to Gregory.” Hon. Diane S. Sykes Wisconsin Supreme Court

Immunity under sec. 125.035 does not extend to an adult who provided alcohol to a minor, who in turn provided it to another minor, the Wisconsin Supreme Court held on Nov. 25.

In 1999, Mary Anne Brasure purchased a 1.75 liter bottle of vodka for her son, Gregory, who was only 19 years old. She left it for him along with a note that said, “Greg, you owe me $12.00.”

Gregory took the bottle along on a trip with two friends, Robert Tripp and Craig Anderson, who was also under 21. The three drank the vodka, and Craig ultimately died from acute alcohol intoxication.

Craig’s parents brought suit against Mary Anne, Gregory, and Mary Anne’s insurer, American Family Mutual Insurance Company, for wrongful death.

Gregory and Mary Anne moved for summary judgment, arguing they were immune from civil liability for providing alcohol to another, pursuant to sec. 125.035(2), and Mary Anne’s insurer, American Family, asserted an exclusion in its homeowner’s policy.

Marinette County Circuit Court Judge Tim A. Duket granted summary judgment to Mary Anne and Gregory, and to American Family for the claims asserting liability against it based on their actions.

Duket also considered coverage issues, in the event the claims were reinstated on appeal, holding that American Family’s policy did not cover any liability imposed on Gregory, but that genuine issues of material fact existed as to Mary Anne’s coverage.

The Andersons appealed the first three holdings, but American Family did not cross-appeal the fourth.

On appeal, in a published decision, Anderson v. American Family, 2002 WI App 315, 259 Wis.2d 413, 655 N.W.2d 531, the court of appeals affirmed both that American Family was not liable for Gregory’s actions, and that Gregory was immune under sec. 125.035(2). However, the court reversed as to Mary Anne, and held that she was not immune under the statute.

The Supreme Court granted review, and affirmed in a unanimous decision by Justice Diane S. Sykes.

The Statutes

Section 125.035(2) provides, “A person is immune from civil liability arising out of the act of procuring alcohol beverages for or selling, dispensing or giving away alcohol beverages to another person.”

Section (4)(b) provides the following exception, however: “Subsection (2) does not apply if the provider knew or should have known that the underage person was under the legal drinking age and if the alcohol beverages provided to the underage person were a substantial factor in causing injury to a 3rd party.”

“Provider” is defined, in sec. 125.035(4)(a), as “a person, including a licensee or permittee, who procures alcohol beverages for or sells, dispenses or gives away alcohol beverages t
o an underage person in violation of sec. 125.07(1)(a).”

Section 125.07(1)(a) 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.”

Definition of “Provider”

The court first held that Mary Anne was a “provider” under the statutes, “because she gave her underage son Gregory a bottle of vodka while he was unaccompanied by a parent, in violation of Wis. Stats. sec. 125.07(1)(a).”

The court rejected Mary Anne’s argument that, because Craig consumed the vodka that killed him, he himself is a “provider” under the statute and thus, cannot also be a third party. The court dismissed this use of term “provider” as “illogical and contrary to the use of the term in the statute.”

The court observed, “The status of the injured person as a third party to the provider’s act of furnishing the alcohol comes into play in determining the applicability of the exception to immunity. … If the injured claimant is a third party to the transaction by which the defendant provided alcohol to an underage person, and the alcohol was a substantial factor in causing the third-party claimant’s injury, then the exception to immunity applies and the defendant may be liable to the claimant.”

The court added, “Therefore, the applicability of the immunity exception to Mary Anne’s potential liability to the Andersons for Craig’s wrongful death depends upon whether Craig was a third party to the transaction by which Mary Anne provided alcohol to Gregory. Whether Gregory was secondarily a ‘provider’ to Craig or Craig ‘provided’ to himself by drinking with Gregory is not relevant. That Craig may be considered a first party to a subsidiary transaction between himself and Gregory (because they consumed the alcohol together) does not make him a party to the transaction by which Mary Anne provided the alcohol to Gregory.”

The court concluded, “the exception to immunity under Wis. Stat. sec. 125.035(4)(b) applies when: 1) the injured person is a third party to the provider’s 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 party’s injury.”

Because there was no evidence that Craig was a party to the transaction between Mary Anne and Gregory, and it was undisputed that the alcohol was a substantial factor in causing Craig’s death, the court held that Mary Anne is not immune from liability.

Prior Precedent

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The court then explained why its decision was consistent with its prior precedent in Meier v. Champ’s Sport Bar & Grill, Inc., 2001 WI 20, 241 Wis.2d 605, 623 N.W.2d 94.

In Meier, an underage drinker at a tavern was injured in an automobile accident caused by a friend, who was also underage and drinking at the same tavern with Meier.

The court held that Meier was not a third party, because he had also been purchasing alcohol, reasoning, “It is difficult to imagine a class of individuals that the legislature would have more likely intended to exclude from qualifying as a ‘third party’ than those persons involved in procuring alcohol for the underage drinker who ultimately injures another party.” Meier, 2001 WI 20, par. 13.

By contrast, in the case at bar, Craig did not provide alcohol for Gregory. Distinguishing the two, the court noted, “It was because Meier was involved in the illegal transaction by which alcohol was provided to his underage friend, not because they consumed alcohol together, that he was precluded from suing under the exception as an injured third party.”

Emphasizing that the focus of the immunity statues are the “transaction” between the provider an
d the underage person, the court affirmed.

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David Ziemer can be reached by email.