Nichols v. Progressive Northern Insurance Company, No. 2006AP364 (Wis. App. 1/25/2007)
Decision Date | 25 January 2007 |
Docket Number | No. 2006AP364.,2006AP364. |
Parties | Shannon Nichols, Lee C. Nichols, Brooke A. Nichols and Brittney M. Nichols, Plaintiffs-Appellants, Peggy A. Lautenschlager, Wisconsin Laborers' Health Fund and University of Wisconsin Hospital and Clinics Authority, Plaintiffs, v. Progressive Northern Insurance Company, Beth C. Carr and Michael J. Schumate, Defendants, Edward Niesen, Julie A. Niesen, and Berry and Roxbury Mutual Insurance Company, Defendants-Respondents. |
Court | Wisconsin Court of Appeals |
APPEAL from an order of the circuit court for Columbia County: RICHARD REHM, Judge. Affirmed in part; reversed in part and cause remanded with directions.
Before Dykman, Deininger and Higginbotham, JJ.
Shannon, Lee, Brooke, and Brittney Nichols (collectively "the Nichols") appeal from an order granting a motion to dismiss their negligence action against Edward and Julie Niesen (collectively "the Niesens"). The Nichols contend that their complaint states a claim for negligence because it alleges the Niesens knowingly permitted underage high school student Beth Carr to consume alcohol on their property and to drive away intoxicated, resulting in a car accident between Carr and the Nichols in which the Nichols were injured. Because we conclude that the Nichols have stated a claim for common law negligence, we reverse and remand for proceedings consistent with this opinion.
¶ 2 The following facts are taken from the parties' pleadings.1 On the evening of June 4, 2004, Edward and Julie Niesen allowed a large group of high school students to hold a party on their property. The Niesens knew that the underage party guests were consuming alcohol, and did not supervise or prevent alcohol consumption on their property. In Wisconsin, it is illegal for persons under twenty-one years old to consume alcohol unless accompanied by a parent. WIS. STAT. §§ 125.02(8m), 125.02(20m) and 125.07(4) (2003-04).2
¶ 3 Beth Carr was one of the underage drinkers who attended the party. Sometime between the evening of June 4, 2004, and the early morning hours of June 5, 2004, an intoxicated Carr drove away from the Niesen property. She failed to control her vehicle and collided with the Nichols' vehicle, injuring the Nichols.
¶ 4 The Nichols sued Carr and her automobile insurance company, Progressive Northern Insurance Company, and the Niesens and their homeowners insurance company, Berry and Roxbury Mutual Insurance Company. Progressive settled for its policy limit. The Niesens moved to dismiss the Nichols' complaint for failure to state a claim. The trial court concluded that the Nichols' reliance on two statutes, WIS. STAT. §§ 125.07 and 125.035, was misplaced and that their complaint did not state a claim in common law negligence. It therefore dismissed the Nichols' complaint.
¶ 5 We review an order granting a motion to dismiss de novo, without deference to the circuit court. Abbott v. Marker, 2006 WI App 174, ¶5, ___ Wis. 2d ___, 722 N.W.2d 162. To decide whether dismissal was properly granted, "[w]e evaluate whether the allegations in the complaint, taken as true, are legally sufficient to state a claim for relief." Id. We consider the facts alleged in the complaint and all reasonable inferences derived from those facts in deciding whether a claim has been stated. Gritzner v. Michael R., 2000 WI 68, ¶6, 235 Wis. 2d 781, 611 N.W.2d 906. "A claim should not be dismissed unless it appears to a certainty that no relief can be granted under any set of facts that plaintiff can prove in support of his [or her] allegations." Doe v. Archdiocese of Milwaukee, 2005 WI 123, ¶20, 284 Wis. 2d 307, 700 N.W.2d 180 (citation omitted). Further, complaints "are to be liberally construed so as to do substantial justice." Id., ¶35 (citation omitted).
¶ 6 The Nichols assert two arguments on appeal: WIS. STAT. §§ 125.07 and 125.035 do not provide the Niesens with immunity from civil liability, and their complaint states a common law negligence claim. We consider each argument in turn.
¶ 7 The Nichols assert that the Niesens are not entitled to immunity under the Wisconsin Statutes because the statutory immunity conferred by WIS. STAT. § 125.035 does not apply to adults who allow minors to consume alcohol on their property. The Niesens frame the issue differently, asserting that the Nichols have failed to state a statutory claim because the Niesens were not negligent per se under § 125.07(1)(a)3. We agree with both contentions and conclude that §§ 125.035 and 125.07(1)(a)3. establish neither immunity from civil liability nor negligence per se on the facts in this case. This analysis requires our interpretation of statutes and their applications to the facts of this case, questions of law we review de novo. Bill's Distributing, Ltd. v. Cormican, 2002 WI App 156, ¶6, 256 Wis. 2d 142, 647 N.W.2d 908.
¶ 8 WISCONSIN STAT. § 125.035(2) provides immunity from civil liability "arising out of the act of procuring alcohol beverages for or selling, dispensing or giving away alcohol beverages to another person." As the Nichols correctly assert, the immunity of § 125.035 is inapplicable to this case because they did not allege that the Niesens sold, dispensed, or gave away alcohol. Additionally, this immunity is limited by § 125.035(4)(b), which provides that "[s]ubsection (2) does not apply if the provider knew or should have known that the underage person was under the legal drinking age and if the alcohol beverages provided to the underage person were a substantial factor in causing injury to a 3rd party." While this case involves underage persons, the Nichols did not allege that the Niesens provided alcohol during the party on their property. Thus, neither the statutory immunity nor the exception to that immunity applies here. We thus turn to the Niesens' argument that their conduct was not negligent per se under the statutes.
¶ 9 Violation of a safety statute is negligence per se "where the statutory purpose is to avoid or diminish the likelihood of harm that resulted." Miller v. Thomack, 204 Wis. 2d 242, 252-53, 555 N.W.2d 130 (Ct. App. 1996), abrogated on other grounds by Meier v. Champ's Sport Bar & Grill, Inc., 2001 WI 20, 241 Wis. 2d 605, 623 N.W.2d 94. The Niesens contend they are not negligent per se for three reasons: WIS. STAT. § 125.07(1)(a)3. is not a safety statute; even if it is, a violation of that statute is not negligence per se; and the Niesens' property was not a "premises" as defined under ch. 125. We agree that the Niesens' property is not a "premises" for purposes of § 125.07(1)(a)3. and thus does not establish negligence per se here.3
¶ 10 WISCONSIN STAT. § 125.07 establishes restrictions relating to alcohol and underage persons. Section 125.07(1)(a)3. states in part: "No adult may knowingly permit or fail to take action to prevent the illegal consumption of alcohol beverages by an underage person on premises owned by the adult or under the adult's control." "Premises" is defined in ch. 125 as "the area described in a license or permit." Section 125.02(14m). We are bound by this definition; "[i]f a word is specifically defined by statute, that meaning must be given effect." Smith v. Kappell, 147 Wis. 2d 380, 385, 433 N.W.2d 588 (Ct. App. 1988). Because there is no allegation in the Nichols' complaint that the Niesen property was an "area described in a license or permit," it is not a "premises" under § 125.07(1)(a)3. Thus, the Niesens cannot be negligent per se.
¶ 11 Whether the Nichols' complaint states a cause of action in negligence depends on whether it sufficiently alleges facts establishing the following four elements: "(1) the existence of a duty of care on the part of the defendant, (2) a breach of that duty of care, (3) a causal connection between the defendant's breach of the duty of care and the plaintiff's injury, and (4) actual loss or damage resulting from the breach." Hoida v. M&I Midstate Bank, 2006 WI 69, ¶23, 291 Wis. 2d 283, 717 N.W.2d 17 (citation omitted). Thus, a claim for negligence must allege facts showing that the defendant was negligent by breaching the duty of care he or she owed the plaintiff and that the defendant's negligence caused the plaintiff's injuries. Id., ¶22. However, even if all four elements of a negligence action are met, "Wisconsin courts have also reserved the right to deny the existence of a negligence claim based on public policy reasons[,]" because "negligence and liability are distinct concepts." Id., ¶¶24-25 (citation omitted). We begin with an analysis of whether the Nichols' complaint sufficiently alleged the four elements of a negligence action.
¶ 12 Wisconsin courts have long held that an analysis of the first element of a cause of action in negligence, duty of care, is an essential step in determining whether a claim for negligence has been stated. Id., ¶23 (); see also Szep v. Robinson, 20 Wis. 2d 284, 293-94, 121 N.W.2d 753 (1963) ( ). Thus, in Wisconsin, an analysis of the duty of care, a question of foreseeability of harm, is distinct from causation and public policy analyses. Hoida, 291 Wis. 2d 283, ¶29. A.E. Investment Corp. v. Link Builders, Inc., 62 Wis. 2d 479, 484, 214 N.W.2d 764 (1974), puts it this way:
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