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Under Age Drinking Case Analysis

The question raised by the opinion is whether, as the dissent claims, it effectively imposes strict liability on parents if underage alcohol consumption by teenagers occurs on their property, and injury results.

The majority opinion makes only one statement that would suggest to the contrary, in footnote 13: “We recognize that a jury could accept the Niesens’ assertion that they knew nothing about the party, in which case the issue here would be decided on a factual, not a legal, basis.”

Otherwise, however, the majority seems to acquiesce in Deininger’s assessment, even as it finds nothing wrong with imposition of liability.

For instance, the majority does not address any response to Deininger’s argument concerning “‘common knowledge’ of the proclivities of teenagers in the community.”

Although not all teenagers drink alcohol, drinking alcohol is a proclivity of teenagers in all communities, and parents “should know” that. Logically, then, the decision results in strict liability on any parents who allows an opportunity for underage drinking to occur.

Another question is whether Deininger is correct that the majority’s decision to allow recovery has no logical stopping point.

Suppose, for example, that, rather than allegedly allowing a high school party to occur on their property, the case involved underage adults having a party. Everything in the majority’s assessment of the six public policy factors is equally applicable, despite the unreasonable burden that it would impose on parents of a 20-year-old adult child living on their property to ensure that no alcohol consumption ever occurs.

Another problematic scenario is a 21-year-old sharing an apartment with a 20-year-old. Under the court’s analysis, the 21-year-old is likely to be held strictly liable for any injuries that are the result of alcohol consumption on the premises by his roommate or his guests.

Intuitively, there may be a difference between an underage adult child living with a parent, and an underage adult living with a non-relative legal adult. Legally, however, the duties owed by the adult of drinking age are no different.

The court writes, “The facts of this case limit its application,” suggesting that it should not be interpreted that broadly.

However, the next sentence states, “If adults do not knowingly permit underage drinking on their property, they will not become liable for the injuries resulting from underage intoxication.” That still leaves the 21-year-old roommate liable. After all, when seeking a roommate, the 21-year-old can always insist on a non-drinker. Advertisements for roommates commonly request non-drinking, non-smoking, non-drug-users.

A third scenario is a landlord who rents property to a 20-year-old. It is reasonable for the landlord to expect that underage drinking will occur on the premises. As with the parents in the case at bar, it will be easy to say, after injury occurs, that the landlord “should have known” that underage drinking was occurring on the property, and should be liable.

Despite the factual differences in each of these three scenarios, the relevant facts are the same — one adult allowed another adult (albeit an underaged one) to drink alcohol and provide alcohol to other underage adult guests on the first adult’s property.

None of the three “legal adults” have broken any criminal law, and none should be subject to civil liability, either; yet, the majority’s reasoning imposing liability in the case at bar applies to them anyway.

It is noteworthy that, although Deininger’s dissent expressly addresses the possibility of liability where the underage drinker is 16 to 20, the majority makes no effort to limit its holding to those 17 and under.

As a final note, the decision is also noteworthy for a lengthy discussion of duty in negligence cases generally.

Wisconsin had long followed the minority rationale in Palsgraf v. Long Island Railroad Co., 248 N.Y. 339, 162 N.E. 99, 103 (1928), which posits that everyone owes a duty of care to the entire world. A.E. Inv. Corp. v. Link Builders, Inc., 62 Wis.2d 479, 483-84, 214 N.W.2d 764 (1974).

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Last year, however, the Wisconsin Supreme Court, in Hoida v. M&I Midstate Bank, 2006 69, par. 29, 291 Wis.2d 283, 717 N.W.2d 17, held that a court may limit recovery for a harmful act based on the absence of a duty of care owed by the defendant to the plaintiff.

The case at bar is the first published decision to attempt reconciliation of prior Wisconsin law with Hoida. It does so by concluding, “Duty, though defined extremely b
roadly, is like any other legal concept.

When facts are found or disputed, presence or absence of duty can be answered by a court as a matter of law. In the usual case, however, we leave duty, a concept inseparable from foreseeability or recognition, to a jury. Duty has not become just another policy factor. That is what Hoida recognizes.”

Any defense attorney arguing the absence of duty in a negligence case, or any plaintiff’s attorney faced with such an argument, would be wise to study this portion of Judge Dykman’s analysis.

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David Ziemer can be reached by email.

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