Clients often ask their attorneys whether they can be held liable for serving alcohol to their adult friends, employees, or customers who subsequently injure others.
According to Wisconsin law, the answer is generally “no.” Providers of alcohol in Wisconsin have long been shielded from civil liability arising out of accidents caused by intoxicated adults. Historically, Wisconsin law has favored holding intoxicated adults liable for damages caused by their negligence while favoring immunity for the liquor provider.
The Immunity Statute: Wis. Stat. section 125.035
The alcohol provider immunity statute immunizes from civil liability, with limited exceptions, persons who provide alcohol to adults who subsequently injure third parties:
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.
A “person” is broadly defined to include not only individuals, but also “partnerships, associations and bodies politic or corporate.”1
The only statutory exceptions to the adult rule are where the provider forces the consumption of alcohol on another or misrepresents to the consumer that the beverage provided is alcohol-free. These are rare exceptions, and to date there have been no published cases discussing them.
The statute also permits, again with limited exceptions, a cause of action against a person who provided alcohol to a minor where the minor injured a third party.
Paul Curtis, Minnesota 1999, is a partner with Axley Brynelson LLP, Madison, where he is chair of the Litigation Practice Group. He represents employers, insurers, businesses and individuals in state and federal courts.
Stephenson v. Universal Metrics, Inc.
Consistent with the aforementioned statute, the Wisconsin Supreme Court in Stevenson v. Universal Metrics, Inc.,2 directed plaintiffs to seek redress from the intoxicated wrongdoer rather than those thought to be too remote from the harm alleged.
In Stephenson, co-workers John Kreuser and Michael Devine were among those who attended a holiday party sponsored by their employer, Universal Metrics, Inc. Universal Metrics provided two drink vouchers per employee, which could be exchanged for alcoholic or nonalcoholic drinks. Once the vouchers were expended, the employees would have to pay for their own drinks.
Over the course of the evening, Devine became very intoxicated. When Devine approached the bartender for another drink, she refused to serve him any more alcohol unless he had a ride home. Kreuser, who overheard the conversation, agreed to drive Devine home. The bartender then served Devine several more drinks. Kreuser, however, did not drive Devine home after the party. While attempting to drive himself home, Devine’s vehicle crossed the centerline and collided with another vehicle. Both Devine and the driver of the other automobile, Kathy Stephenson, died from the collision.
Stephenson’s husband brought suit, individually and as the personal representative of his wife’s estate, against Kreuser, his insurer, and Universal Metrics, Inc., and its insurers. Among Stephenson’s allegations was that Kreuser “‘voluntarily assumed a duty to render services to Devine under circumstances in which he knew or should have known that any failure to perform those services would create ‘an unreasonable risk of harm’ to Devine and others.”
Stephenson also alleged that Universal Metrics and its insurers were liable for Kreuser’s alleged breach of duty to drive Devine home and that they were liable for the damages caused by Devine’s drunken driving.
The Wisconsin Supreme Court decided that Kreuser was immune from suit under Wis. Stat. section 125.035(2). The majority reasoned that Kreuser’s purposeful action of promising to drive Devine home allowed the bartender to serve Devine more alcohol. The question then was whether Kreuser’s purposeful action amounted to “procuring” alcohol for Devine under the immunity statute.
Because the term “procure” is not defined in the statute, the court reverted to the rules of statutory construction and also looked for guidance from other sources such as the dictionary, jury instructions, and past decisions from within and without the jurisdiction. Upon consideration of these sources, it was evident to the court that the definition of “procure” was fairly broad – it “is not limited to merely ‘giving,’ but is more akin to ‘bringing about’ or ‘causing to happen.’”
The court concluded, therefore, that Kreuser was entitled to the protection of the immunity statute because he brought about Devine’s acquisition of more alcohol, or, in other words, procured alcohol for Devine.
The court also noted that its decision is consistent with the legislative intent of the immunity statute, which is to hold the consumer of the alcohol, not the provider, responsible for the damages arising from the consumption.
Conclusion: Few Exceptions
Stephenson is in accord with Wisconsin law, which has long protected alcohol providers from liability arising from damages caused by adult alcohol consumers.
The legislature and courts alike have consistently directed the damaged party to seek redress from the party who directly caused the damage – the adult consumer – rather than the more remote provider.
With few exceptions, taverns, employers, social hosts, and friends are immune from liability for injuries to third persons arising from providing alcohol to adults.
This article was originally published on the State Bar of Wisconsin’s Litigation Section Blog. Visit the State Bar sections or the Litigation Section webpages to learn more about the benefits of section membership.
Endnotes
1 Wis. Stat. § 990.01 (26).
2 Stevenson v. Universal Metrics, Inc., 2002 WI 30, 251 Wis. 2d 171, 641 N.W.2d 158.