Harmann by Bertz v. Hadley
| Decision Date | 25 April 1986 |
| Docket Number | No. 84-167,84-167 |
| Citation | 382 N.W.2d 673,128 Wis.2d 371 |
| Parties | William HARMANN, Jr., a minor, by his guardian ad litem, Thomas W. BERTZ, and William Harmann, Sr., and Linda C. Harmann, Plaintiffs-Appellants-Petitioners, v. Cherie HADLEY, The Continental Insurance Co., John Hildebrandt, and Home Mutual Insurance Company, Defendants-Respondents, Neil Schulke, Bernard H. Schulke, Milwaukee Mutual Insurance Company, County of Waupaca, Town of Farmington, Town of Dayton, and General Casualty Insurance Company, Defendants. |
| Court | Wisconsin Supreme Court |
Thomas W. Bertz, argued for plaintiffs-appellants-petitioners; Russell T. Golla and Anderson, Fisher, Shannon, O'Brien & Rice, Stevens Point, on brief.
Nancy Rice Gruber, Milwaukee, Michael Siddall, Appleton, argued for defendants-respondents; Otjen & Van Ert, S.C., Milwaukee, Herrling, Clark, Hartzheim & Siddall, Appleton, on brief.
This is a review of an unpublished decision of the court of appeals filed May 29, 1985, summarily affirming the judgment of the circuit court of Portage county, Robert C. Jenkins, circuit court judge, dismissing the amended complaint for failure to state a claim upon which relief can be granted. We reverse the decision of the court of appeals and the judgment of the circuit court and remand the cause to the circuit court for further proceedings.
The amended complaint sets forth a common law cause of action for negligence against two 18-year-olds (adults under Wisconsin Law) who furnished alcoholic beverages to a 17-year-old driver whose consumption of the beverages was a cause of plaintiff's injury. Relying on Olsen v. Copeland, 90 Wis.2d 483, 280 N.W.2d 178 (1979), which adhered to the common law doctrine that the consumption of alcoholic beverages and not the negligent furnishing of them is the cause of the injury, the circuit court entered a judgment dismissing the complaint. The plaintiffs filed a petition to bypass the court of appeals which this court denied. They then pursued their claims in the court of appeals. While this case was pending from April 10, 1984, to May 29, 1985, this court overruled Olsen in Sorensen v. Jarvis, 119 Wis.2d 627, 644-45, 350 N.W.2d 108 (1984), and abrogated the common law immunity afforded commercial vendors who sell intoxicating beverages to persons under the legal drinking age. Furthermore, on April 30, 1985, this court announced its decision in Koback v. Crook, 123 Wis.2d 259, 276, 366 N.W.2d 857 (1985), holding social hosts liable for personal injury caused by the conduct of a minor driver to whom social hosts negligently furnish intoxicating beverages. The court set forth the law in Koback as follows:
"We hold that, where there is sufficient proof at trial, a social host who negligently serves or furnishes intoxicating beverages to a minor guest, and the intoxicants so furnished cause the minor to be intoxicated or cause the minor's driving ability to be impaired, shall be liable to third persons in the proportion that the negligence in furnishing the beverage to the minor was a substantial factor in causing the accident or injuries ...." Koback, supra 123 Wis.2d at 276, 366 N.W.2d 857. 1
The court declared in Koback that it would apply its holding prospectively, explaining, "By this, we mean that there shall be liability only for the negligent conduct of a social host who furnishes liquor to a minor when the conduct which causes injury occurs on or after September 1, 1985." Koback, supra 123 Wis.2d at 277, 366 N.W.2d 857.
On May 29, 1985, one month after this court announced its decision in Koback, the court of appeals affirmed the judgment of the circuit court in Harmann. Because the alleged negligent conduct had occurred on June 25, 1982, the court of appeals concluded that the Koback rule of prospectivity mandated the dismissal of the amended complaint.
The issue presented on review in this court is whether the Koback rule of prospectivity bars the plaintiffs' claim. The plaintiffs argue that it does not because this case is factually distinguishable from Koback. In Koback, social hosts supplied the intoxicant; in this case, friends and peers of the minor driver furnished the intoxicant. In the alternative the plaintiffs assert that the procedural history (the timing of the filing of documents) of the case mandates that this case be treated as an exception to the Koback rule of prospectivity.
We hold that this case is not factually distinguishable from Koback. We further hold that the procedural history of the case warrants our treating it as an exception to the Koback rule of prospectivity. We therefore reverse the decision of the court of appeals and the judgment of the circuit court and remand the cause to the circuit court for further proceedings.
According to the facts alleged in the complaint, which for the purpose of deciding a motion to dismiss are taken as admitted, Evans v. Cameron, 121 Wis.2d 421, 426, 360 N.W.2d 25 (1985), on June 25, 1982, William Harmann, Jr., was rendered a quadriplegic when the car in which he was a passenger went off the road and turned over in a field. The driver of the car, 17-year-old Neil Schulke, had been drinking beer furnished by two friends, Cherie Hadley and John Hildebrandt, who were over the age of 18. The statutes prohibit furnishing fermented malt beverages to persons under 18 years of age. 2 William Harmann, Jr., and his parents, the plaintiffs, commenced this action on September 9, 1983, alleging, inter alia, that Hadley and Hildebrandt were negligent in furnishing the intoxicating beverages and that such negligence caused the plaintiffs' injuries. Plaintiffs' complaint, in pertinent part, reads:
The plaintiffs argue that neither Sorensen nor Koback governs this case. Sorensen governs the liability of a commercial vendor who negligently sells intoxicating beverages to a minor. Koback governs the liability of a social host who negligently furnishes intoxicating beverages to a minor. In determining that the Sorensen case was not dispositive of Koback, this court distinguished the facts in Koback from those in Sorensen on the basis of the different suppliers of the intoxicating beverages in the two cases--a commercial vendor and a social host. We went on to conclude in Koback that there was no overriding public policy reason to shield persons who were not commercial vendors from liability when their negligent serving of intoxicating beverages to a minor was contrary to the statute and was a substantial factor in causing injury.
The plaintiffs point out that the persons furnishing the intoxicating beverages to the minor driver in this case were neither commercial vendors nor social hosts; they were peers and friends of the minor driver. The plaintiffs assert that because this court has not determined the liability of this class of suppliers, the case should be decided on its merits.
Although plaintiffs attempt to draw a distinction between peers and social hosts, both of whom violate the statutes by furnishing intoxicating beverages to a minor, we cannot find any real basis for this distinction. Our decisions in Koback and Sorensen, while couched in terms of common law negligence, rested on the defendants' violation of a statutory prohibition against furnishing intoxicating beverages to a minor. The violation of these statutes constitutes negligence per se and subjects the violator to tort liability. "... [T]he negligent supplier of an intoxicant to a minor, under the rules of Wisconsin tort law, may be liable in the same manner and to the same extent as any person who engages in negligent conduct." Koback, supra 123 Wis.2d at 273, 366 N.W.2d 857.
Whether the defendants who furnish intoxicating beverages to a minor in contravention of state law do so at a formal gathering, such as the graduation party in Koback, or informally at a "local hang-out," their liability for their tortious conduct is the same. This case is not factually distinguishable from Koback; Koback therefore controls.
We must now determine whether the plaintiffs' claims for relief are barred by the Koback rule of prospectivity.
This court generally adheres to the " 'Blackstonian Doctrine' ... that a decision which overrules or repudiates an earlier decision is retrospective in operation." Fitzgerald v. Meissner & Hicks, Inc.,...
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