Koback v. Crook

Decision Date30 April 1985
Docket NumberNo. 84-1080,84-1080
Citation366 N.W.2d 857,123 Wis.2d 259
Parties, 53 USLW 2565 Leslie KOBACK, David Koback and Susan Koback, Plaintiffs-Appellants, v. Michael A. CROOK, American Standard Insurance Company of Wisconsin, Mr. and Mrs. Richard Crook, Jr., ABC Insurance Company, a fictitious name of an unknown insurance corporation, and General Casualty Company of Wisconsin, Defendants, Paul Brooks, Mr. and Mrs. Cecil Brooks and Threshermen's Mutual Insurance Company, Defendants-Respondents.
CourtWisconsin Supreme Court

Madeleine E. Kelly, Milwaukee, argued, for plaintiffs-appellants; Thomas W. St. John and Friebert, Finerty & St. John, Milwaukee, on brief.

Todd A. Becker, Madison, and David J. Colwin, Fond du Lac, argued, for defendants-respondents; Coyne & Niess Law Office, Madison, and Colwin, Fortune, Colwin & Pomeroy, S.C., Fond du Lac, on brief.

HEFFERNAN, Chief Justice.

The question presented is whether a third party, Leslie Koback, injured by an intoxicated driver, Michael Crook, has a common law cause of action for negligence against Mr. and Mrs. Cecil Brooks and their adult son, Paul Brooks, the social hosts, who served alcohol to a minor, Michael Crook, when the hosts knew, or should have known, that Crook was a minor and knew, or should have known, that the minor guest would drive, and when the minor's consumption of alcohol was a cause of the injury to the third party.

We conclude that the circuit court erred when it concluded that the complaint failed to state a claim upon which relief can be granted. Accordingly, we reverse and remand to the circuit court for further proceedings.

The case comes to us on appeal from the circuit court for Dodge county, Henry G. Gergen, Jr., circuit judge, on a petition by Leslie Koback and her parents, the plaintiffs-appellants, to bypass the court of appeals pursuant to sec. 809.60, Stats. 120 Wis.2d 689, 357 N.W.2d 562.

In the circuit court, Judge Gergen, in response to a motion to dismiss, relying upon Wisconsin decisional law as it then existed, held, in a decision dated April 18, 1984, that no cause of action, i.e., no claim for which relief could be granted, existed under the facts alleged, in Wisconsin. He concluded that a social host could not be liable for negligently serving intoxicating beverages to a guest under the facts stated in the complaint. 1 Judgment of dismissal was entered on May 1, 1984. Appeal was brought by Leslie Koback and her parents, David and Susan Koback. 2

The amended complaint alleges that, on June 16, 1982, Leslie Koback, a young woman of seventeen, attended a high school graduation party at the home of Mr. and Mrs. Cecil Brooks and their son, Paul Brooks. Paul was an eighteen-year-old adult at the time. Michael Crook, seventeen, was also a guest at the party. The Kobacks, the plaintiffs, allege that:

"Mr. and Mrs. Cecil Brooks and Paul Brooks furnished beer to the minor guests at the party at their home ... and they knew or should have known that beer and/or other alcoholic beverages would be consumed by the minor guests at the party."

It was also alleged that Michael Crook drank alcoholic beverages and became intoxicated. The plaintiffs allege that:

"[The Brooks] knew or should have known that minors, or some of them, would leave the premises by automobile or motorcycle, thereby creating an unreasonable risk of harm to those minors operating the vehicles and their passengers."

They allege that the Brooks knew that Michael Crook was a minor, knew that he had driven his motorcycle to the party, and knew of his intention to leave the party with Leslie Koback as a passenger on his motorcycle.

It is also alleged that, at approximately 10:30 p.m., Michael Crook, in an intoxicated condition, left the party on his motorcycle with Leslie Koback as a passenger. Shortly thereafter, Michael's motorcycle struck a parked car, throwing Leslie to the pavement, causing very severe personal injuries, compensation for which is sought in this lawsuit.

The essence of the plaintiffs' cause of action appears in the amended complaint:

"Mr. and Mrs. Cecil Brooks and Paul Brooks were negligent in the following respects:

"(a) in causing and permitting intoxicating beverages to be served to Michael Crook and the other minors at the party;

"(b) in permitting Michael Crook to leave the party with Leslie Koback, when they knew or should have known that he had consumed intoxicating beverages and it was his intention to operate his motorcycle with Leslie Koback as his passenger;

"(c) in failing to ascertain and to warn Leslie Koback of the intoxicated condition of Michael Crook;

"(d) in failing to properly supervise the party so as to have prevented minors from consuming alcoholic beverages and so as to have prevented guests at the party from being transported by persons with whom it would be unsafe to ride;

"(e) in failing to provide a safe means of transportation from the party when they knew or, in the exercise of reasonable care should have known, that such transportation was necessary."

It was alleged that such negligence was a "substantial factor in producing Leslie Koback's injuries and the damages to her and her parents."

The question thus presented on this appeal is whether the facts alleged, if true--and on a motion to dismiss we assume them to be true--state a claim upon which relief can be granted. Quesenberry v. Milwaukee County, 106 Wis.2d 685, 690, 317 N.W.2d 468 (1982). Does a third party, in this case Leslie Koback, have a cause of action or a claim against the three members of the Brooks family who were the hosts of a minor, Michael Crook, at a party where they were negligent in the respects specified in the complaint.

This court has not heretofore been called upon to determine the possible liability of a social host who allegedly negligently serves a minor guest alcoholic beverages which cause conduct by the guest that results in injury.

This court, however, in Sorensen v. Jarvis, 119 Wis.2d 627, 350 N.W.2d 108 (1984), recently abrogated the common law non-liability rule in respect to vendors of alcoholic beverages and held that the vendor may be liable to a third party for negligently furnishing alcohol to a minor when the alcohol so supplied is a substantial factor in causing injuries to a third party. This court did so by expressly rejecting the outdated common-law notion that it was only the consumption of the alcoholic beverages and not the negligent furnishing of them that was the cause of the injury.

Additionally, in Sorensen, the court made it clear that it was not precluded from changing the common-law court-made doctrine theretofore shielding the vendor from liability. Moreover, the court held, consistent with previous declarations of this court in tort cases, that the imposition of liability on a vendor whose conduct was a substantial factor in causing the injury was a matter of public policy in the sense that, where there was a proved chain of causation between conduct and result, it was for the court to determine whether or not there should be liability, and that a reasonable view of appropriate public policy compelled this court to abolish the negligent liquor vendors' specious common-law shield from civil liability. Those cases that relied upon this court's former articulation of public policy that protected the vendor from liability were expressly overruled. Garcia v. Hargrove (Garcia I), 46 Wis.2d 724, 176 N.W.2d 566 (1970); Garcia v. Hargrove (Garcia II ), 52 Wis.2d 289, 190 N.W.2d 181 (1971); Olsen v. Copeland, 90 Wis.2d 483, 280 N.W.2d 178 (1979).

In Sorensen, liability, although couched in terms of common-law negligence, rested upon the statutory prohibitions against selling to a minor, the violation of which constituted negligence per se.

The defendant in Sorensen was a vendor, a commercial seller of liquor at retail. Here, the defendants are home-owners--social hosts who, as far as the record shows, gratuitously supplied alcohol to the minors. The plaintiffs in this case urge that this court apply the rationale of Sorensen to make it clear that the class of persons against whom a claim may be asserted includes not only negligent vendors of alcohol to minors but negligent social hosts as well. They would predicate this liability, not upon a violation of the liquor laws, but upon common-law negligence.

In Sorensen, we rejected the shibboleth that it was the imbiber and not the supplier of the alcohol who caused the injury, but we did not need to go beyond the test of Farmers Mutual Auto Insurance Co. v. Gast, 17 Wis.2d 344, 117 N.W.2d 347 (1962), in concluding that the vendor in Sorensen was negligent. The sale in Sorensen violated the criminal law. In Sorensen, 119 Wis.2d at 645, 350 N.W.2d 108, we said, "The sale to a minor under the formulation of Gast is negligence per se." Thus, although stating that the negligence of the furnisher of liquor was the predicate upon which liability must lie, we were able to find negligence per se, because the licensee violated a statutory prohibition by selling to a minor.

In the instant case, under the plaintiffs' theory, the negligence alleged in the complaint must be proven at trial and, if proved, is the predicate for liability of a non-commercial supplier, a social host, to the same extent that the negligence per se conduct of violating a liquor statute triggers liability for a licensee. Plaintiffs assert that the failure to exercise ordinary care in supplying intoxicating beverages is simply common-law negligence that triggers liability if the elements of cause, substantial factor, and proximate cause--together with damages--are proved. We agree that the Sorensen rationale is appropriately applied to the non-commercial vendor, the negligent social host, and may furnish a basis for liability. We need not go beyond Sorensen, however, for here, as in Sorensen, it is negligence per se to furnish liquor to a...

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