Garcia v. Hargrove

• Decision Date: 05 October 1971
• Docket Number: No. 172,172
• Citation: 52 Wis.2d 289,190 N.W.2d 181
• Parties: Gloria GARCIA, Appellant, v. Charles W. HARGROVE et al., Defendants, Kenneth P. Urso, Admr. w/w/a of the Estate of Joseph Urso, Deceased, Respondent, Roberto GARCIA, Third-Party Defendant.
• Court: Wisconsin Supreme Court

Page 181

190 N.W.2d 181

52 Wis.2d 289

Gloria GARCIA, Appellant, v. Charles W. HARGROVE et al., Defendants, Kenneth P. Urso, Admr. w/w/a of the Estate of Joseph Urso, Deceased, Respondent, Roberto GARCIA, Third-Party Defendant.

No. 172.

Supreme Court of Wisconsin.

Oct. 5, 1971.

This appeal is the second growing out of litigation involving an automobile accident in Dane County on September 8, 1968. Gloria Garcia, the plaintiff and appellant, was a passenger guest in an automobile driven by her husband, Roberto Garcia, third-party defendant. Roberto had been a business invitee of Joseph Urso, defendant and respondent, the owner of Urso's Satellite Lounge in the city of Monona, Dane county. Another driver was involved, Charles Hargrove, defendant and third-party plaintiff.

In her initial complaint, appellant alleged a common-law cause of action existed against Urso because his servants served liquor to Roberto while he was intoxicated; that such acts were negligent; and that such negligence caused appellant's injuries. Urso demurred and the demurrer was sustained by the circuit court for Dane county, Hon. W. L. Jackman presiding. Gloria appealed and this court affirmed, Garcia v. Hargrove (1970), 46 Wis.2d 724, 176 N.W.2d 566 (hereinafter Garcia I).

Shortly after this court's mandate in the first appeal, Gloria filed an amended complaint in the circuit court for Dane county. Kenneth Urso, administrator with will annexed of estate of Joseph Urso, was named defendant (respondent here) since Joseph Urso had deceased since the first complaint was served. The second complaint is identical to the first except that in the present suit appellant specifically alleges that by serving liquor to Roberto respondent violated secs. 66.054(9)(c) and 176.30(1), Stats., thereby constituting negligence per se. Respondent's motion for summary judgment dismissing the action was granted by Judge Jackman on the basis of this court's mandate in Garcia I. Gloria appeals.

Richard A. Heilprin, Madison, for appellant.

Robert J. Mueller, Madison, for respondent.

WILKIE, Justice.

In Garcia I this court considered at length the questions raised in holding a purveyor of liquor liable for the negligent acts of an able-bodied man who is served liquor and becomes intoxicated. In a 4 to 3 decision this court held, 'The controlling consideration is one of public policy, and it is the determination of this court that reasons of public policy dictate liability not be extended as proposed by plaintiff.' ¹

Appellant has now redrafted her complaint. The difference between the two complaints is that in the present complaint appellant specifically enumerates alleged violations of secs. 176.30(1) ² and 66.054(9)(c), ³ Stats., while in Garcia I the allegation was that respondent was 'in violation of the laws of the State of Wisconsin.'

Two issues are presented by this appeal. They are:

1. Does appellant now state a cause of action because she alleges respondent's actions were in violation of specific statutes constituting negligence per se?

2. Does the decision of the United States Supreme Court in Wisconsin v. Constantineau provide a basis for this court's reversing the decision in Garcia I?

The Effect of the Negligence Per Se Allegation.

We see no difference on this appeal between the new complaint and that considered inadequate in Garcia I. Although the present complaint labels alleged acts in violation of statutes as negligence per se, this misses the point that under Garcia I this court held that as a matter of public policy it would preclude appellant from asserting a valid cause of action. Even if the statutory violations constitute negligence per se ⁴ the public policy considerations which prompted this court in Garcia I to deny liability for the alleged negligent acts under the common law are the same public policy considerations which bar liability under this complaint.

The Effect of the Decision of the United States Supreme

Court in Wisconsin v. Constantineau.

In Wisconsin v. Constantineau ⁵ the Supreme Court of the United States declared the Wisconsin 'posting' statute, sec. 176.26, unconstitutional as constituting a denial of procedural due process guaranteed by the Fourteenth amendment. The statute provided that various persons could forbid in writing the sale or gift of intoxicating liquor to one who, by excessive drinking, exhibited described conditions or specified traits. Appellant contends that the United States Supreme Court decision in Constantineau requires reexamination of the questions decided in Garcia I. We think not.

Appellant argues that in Farmers Mut. Automobile Ins. Co. v. Gast ⁶ this court held that the doctrine of common law negligence per se for violation of the safety statute was not applicable because of legislative preemption of the field by the enactment of sec. 176.35, Stats., which provides for civil liability for any person who sells liquor to a minor or a person who has been 'posted,' pursuant to sec. 176.26. Now that sec. 176.26 has been declared unconstitutional, appellant argues that sec. 176.35, by implication, also is invalid. Thus appellant concludes that since the statute held to be preemptive in Gast is now invalid there is no longer legislative preemption and the common law rules of negligence per se should apply.

Appellant is wrong on two points. First, she fails to recognize the policy determination made by this court in Garcia I. Second, Garcia I was not a case dealing with legislative preemption and was decided on policy grounds....