Miller v. Thomack
| Decision Date | 29 August 1996 |
| Docket Number | 95-1766,Nos. 95-1684,s. 95-1684 |
| Citation | 204 Wis.2d 242,555 N.W.2d 130 |
| Court | Wisconsin Court of Appeals |
| Parties | Rhonda MILLER, Richard Miller and Kay Miller, Plaintiffs-Appellants, v. Craig J. THOMACK, Defendant, State Farm Mutual Automobile Insurance Company, a Foreign Corporation, Defendant-Co-Appellant, James D. Thomack, ABC Insurance Company, as Insurer of James Thomack, Michelle Melberg, DEF Insurance Company, as Insurer of Michelle Melberg, Defendants, Kimberly Ransom, Defendant-Respondent, d Fire Insurance Exchange, Kurt D. Pamperin, Sr., Kurt Pamperin, Jr., United Fire & Casualty Company, a Foreign Corporation, Waupaca County, as Agent for the State of Wisconsin, Brian Clary, GHI Insurance, as Insurer of Brian Clary, John Doe, Susan Roe, Defendants, Karen Miller, Defendant-Respondent, NOP Insurance, as Insurer of Karen Miller, Defendant, Craig J. Thomack, Third Party Plaintiff-Co-Appellant, and James D. Thomack, Third Party Plaintiff, Jason Beattie, Third Party Defendant-Respondent, Lee Beattie, Carol Beattie and KLM Insurance Company, as Insurer of Jason Beattie, Lee Beattie and Carol Beattie, Third Party Defendants. Rhonda MILLER, Richard Miller, and Kay Miller, Plaintiffs-Respondents, v. Craig J. THOMACK, Defendant-Appellant, State Farm Mutual Automobile, James D. Thomack, ABC Insurance Company, Michelle Melberg, DEF Insurance Company, Kimberly Ransom, Fire Insurance Exchange, Waupaca County, Brian Clary, GHI Insurance Company, John Doe, Susan Roe, Karen Miller, and NOP Insurance Company, Defendants, Craig J. THOMACK, and James D. Thomack, Third Party Plaintiffs, Kurt D. Pamperin, Sr., Kurt Pamperin, Jr., and United Fire & Casualty Company, Defendants-Appellants, v. Jason BEATTIE, Lee Beattie, Carol Beattie, and KLM Insurance Company, an Insurer of Jason Beattie, Lee Beattie and Carol Beattie, Third Party Defendants. |
For the defendants-appellants, Kurt D. Pamperin, Sr., Kurt Pamperin, Jr., and United Fire & Casualty Company, the cause was submitted on the briefs of William J. Ewald of Denissen, Kranzush, Mahoney & Ewald, S.C. of Green Bay.
For the plaintiffs-appellants and plaintiffs-respondents, Rhonda Miller, Richard Miller and Kay Miller, the cause was submitted on the briefs of Peter S. Nelson of Menn, Nelson, Sharratt, Teetaert & Beisenstein, Ltd. of Appleton.
For the defendant-respondent, Kimberly Ransom, and for the defendant, Fire Insurance Exchange, the cause was submitted on the brief of George F. Savage of Everson, Whitney, Everson & Brehm, S.C. of Green Bay.
For the defendant-respondent, Karen Miller, the cause was submitted on the brief of John F. Mayer and William R. Wick of Nash, Spindler, Dean & Grimstad of Manitowoc.
Before EICH, C.J., DYKMAN, P.J., and VERGERONT, J.
This appeal involves the interpretation and application of §§ 125.07(1)(a) and 125.035, STATS., which relate to civil liability for injuries caused by an underage person who has consumed alcohol. 1 Rhonda Miller was injured in an automobile accident when the automobile in which she was a passenger went off the road. Craig Thomack, the driver of that automobile, and Rhonda Miller had consumed beer before the accident occurred. Thomack was sixteen and Rhonda Miller was fifteen. They had consumed beer on property leased by Kurt Pamperin, Sr. and Kurt Pamperin, Jr., who operated Pamperin's Bear Lake Bar & Hall on that property. However, the beer was not purchased at Pamperin's Bear Lake Bar & Hall.
The Pamperins and their insurer, United Fire & Casualty Company, appeal the trial court's denial of their motion for summary judgment, raising a number of issues. We address only the issue of their liability under § 125.07(1)(a) 3, STATS., because that is dispositive. We conclude that there are no issues of fact concerning whether the Pamperins violated the statute and that they are entitled to judgment as a matter of law. We therefore reverse the trial court's denial of their motion for summary judgment. 2
Rhonda Miller and her parents appeal from the trial court order granting summary judgment to Kimberly Ransom, Karen Miller, Jason Beattie and their insurers, 3 all of whom contributed money to purchase the beer. 4 They were all under twenty-one at the time. Rhonda contends that the trial court erred as a matter of law in ruling that these three did not violate § 125.07(1)(a)1, STATS., which provides that "no person may procure for, sell, dispense, or give away" any alcohol beverages to an underage person. She contends that the court also erred in ruling that their negligence, if any, was less than hers. We conclude that contributing money to the purchase of alcohol under the circumstances presented by this record violates the statute and is therefore negligence per se. We also conclude that the issue of comparative negligence should be decided by the jury. Finally, we conclude that Karen, Ransom and Beattie are not immune from liability under § 125.035, STATS. We therefore reverse the grant of summary judgment to these defendants.
For purposes of this appeal, these facts are not disputed. Early in the evening of June 12, 1990, Thomack picked up Rhonda and her cousins, Karen and Ransom. There was discussion among the four about getting beer and they drove to a parking lot where young people were gathered. Brian Clary, who was twenty-one, said he would buy beer for them. 5 He bought either a twelve pack or a case of beer for them at a local liquor store. Karen and Ransom contributed money for the purchase of the beer, as did Beattie. The beer was put in Thomack's car and Thomack drove Rhonda, Karen and Ransom to a nearby unoccupied cabin, where they consumed some of the beer. No one served anyone else beer.
From the cabin, Thomack drove the other three to the parking lot of Pamperin's Bear Lake Bar & Hall on Bear Lake. The beer either remained in the back of the car, was placed beside it, or on the trunk, and any of the group who wanted a beer took one. No one distributed or passed the beer purchased by Clary to others, and consumption was voluntary. Thomack, Rhonda and others consumed beer on the beach area. None of the alcohol consumed by Thomack or Rhonda was purchased from Pamperin's Bear Lake Bar & Hall.
The Pamperins leased the tavern from a relative of the person who owns the Bear Lake Campground, which is located next to the tavern. The leased property includes the tavern building, the parking lot to the east of the building and "outback." "Outback" means the area between the building and the lake, which includes a block of lake frontage. The lake shore is approximately 300 feet from the tavern.
Rhonda left Bear Lake in the early morning of June 13 as a passenger in Thomack's car. While passing another car, Thomack lost control of his car and it went off the road and struck a tree. Rhonda was seriously injured. She was not wearing a seat belt and was not then in the habit of wearing a seat belt.
Rhonda and her parents sued Thomack, Karen, Ransom, the Pamperins and their respective insurers. Thomack joined Beattie, his parents and their insurer, alleging that Beattie aggravated Rhonda's injuries when he extricated her from the vehicle. There were various cross-claims among the defendants. Karen, Ransom, Beattie and the Pamperins moved for summary judgment. The court ruled that contributing money to purchase the beer did not constitute furnishing alcohol to a minor in violation of §§ 125.035 or 125.07, STATS. It determined as a matter of law that Rhonda Miller was more negligent than Karen Miller or Kimberly Ransom and dismissed them from the action. It dismissed Beattie because there was no evidence that he caused, exacerbated or contributed to Rhonda's injuries. The trial court denied the Pamperins' motion for summary judgment, concluding that there were disputed issues of fact as to whether the consumption of alcohol took place on premises owned by the Pamperins or under their control and whether they had knowledge as required by § 125.07(1)(a)3.
Rhonda appealed from the grant of summary judgment to Karen, Ransom and Beattie. We granted the Pamperins' petition for leave to appeal the denial of their motion for summary judgment, and consolidated the two appeals.
We review summary judgments de novo, employing the same methodology as the trial court. Green Spring Farms v. Kersten, 136 Wis.2d 304, 315, 401 N.W.2d 816, 820 (1987). Summary judgment is proper where there are no genuine issues of material fact and one party is entitled to judgment as a matter of law. Sections 802.08(2) and (6), STATS.
LIABILITY UNDER § 125.07(1)(a)
3, STATS.
We begin with some background on the common law of civil liability for furnishing alcoholic beverages. In Sorensen v. Jarvis, 119 Wis.2d 627, 645, 350 N.W.2d 108, 117 (1984), the supreme court altered the common law immunity for vendors of intoxicating liquors in actions brought by someone who had been injured as a result of the purchaser's intoxication. The court held that an injured person had a cause of action against a retailer who sells alcohol beverages to someone whom the retailer knows or should know is underage, and when the underage person's consumption of alcohol is a substantial factor in causing the injury.
In Koback v. Crook, 123 Wis.2d 259, 276, 366 N.W.2d 857, 865 (1985), the court held that a social host is liable where the host serves alcohol to an underage person, knows or should know the person is underage, knows or should know the person will drive, and where the underage person's consumption of alcohol is a substantial factor in causing a third-party injury. The rationale of Koback and Sorensen was that the 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." Id. at 273, 366 N.W.2d at 864...
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