Nichols v. Progressive Northern Ins. Co., No. 2006AP364.

CourtUnited States State Supreme Court of Wisconsin
Writing for the CourtN. Patrick Crooks
Citation2008 WI 20,746 N.W.2d 220
PartiesShannon 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-Petitioners.
Decision Date25 March 2008
Docket NumberNo. 2006AP364.
746 N.W.2d 220
2008 WI 20
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-Petitioners.
No. 2006AP364.
Supreme Court of Wisconsin.
Argued November 28, 2007.
Decided March 25, 2008.

[746 N.W.2d 222]

For the defendants-respondents-petitioners there were briefs by Arnold P. Anderson and Mohr & Anderson, LLC, Madison, and Rick J. Mundt and Winner, Wixson & Pernitz, Madison, and oral argument by Arnold P. Anderson.

For the plaintiffs-appellants there was a brief by Jason J. Knutson and Axley Brynelson, LLP, Madison, and oral argument by Jason J. Knutson.

An amicus curiae brief was filed by William C. Gleisner, III and Law Offices of William C. Gleisner, Milwaukee; Linda V. Meagher and Habush Habush & Rottier, S.C., Waukesha; and Lora A. Kaelber and End, Hierseman & Crane, LLC, Milwaukee, on behalf of the Wisconsin Academy of Trial Lawyers.

¶ 1 N. PATRICK CROOKS, J.


This is a review of an unpublished decision of the court of appeals,1 affirming in part, reversing in part, and remanding with directions, an order of the Circuit Court for Columbia County, Judge Richard L. Rehm.

¶ 2 Petitioners, Edward and Julie Niesen (the Niesens) and their homeowner's insurance carrier, Berry and Roxbury Mutual Insurance Company (BRMIC), seek review of that unpublished decision of the court of appeals. The court of appeals allowed the claim of Shannon, Lee, Brooke, and Brittney Nichols (the Nichols) to proceed against the Niesens for common-law negligence. The Nichols claimed that the Niesens were social hosts, who did not provide any alcoholic beverages to underage guests, but allegedly were aware that minors were on their property consuming alcoholic beverages. After leaving the Niesens' premises, one of these guests allegedly caused injuries while driving intoxicated. The circuit court had granted the Niesens' and BRMIC's motion to dismiss the Nichols' complaint, after concluding that the complaint failed to state a claim in common-law negligence. The primary issue upon review is whether a claim for common-law negligence should be permitted against social hosts under these circumstances.

¶ 3 We reverse the decision of the court of appeals. Doing so, we hold that, based on public policy grounds, a claim for common-law negligence cannot be maintained against social hosts, such as the Niesens,

746 N.W.2d 223

who allegedly were aware that minors on their property were consuming alcohol, but who did not provide the alcohol, when an underage guest later allegedly caused an alcohol-related car accident. To hold otherwise would be a significant extension of common-law liability. If that is to occur, in this instance, it should be done by the legislature, not by this court.

I

¶ 4 On June 5, 2004, the Nichols were in a motor vehicle on County Trunk Highway J in Columbia County, Wisconsin, when that vehicle was struck by another motor vehicle, driven by Beth Carr (Carr), which had crossed the highway's center line. The Nichols alleged that the accident was caused by Carr's "failure to properly manage and control the vehicle she was operating, due in part to the voluntary ingestion by her of intoxicating beverages." As a result of the accident, Shannon Nichols "suffered very severe personal injuries," and Brittney, Brooke, and Lee Nichols "suffered injuries requiring medical care and treatment."

¶ 5 On the night of June 4, 2004, and into the early morning of June 5, 2004, the Nichols alleged that "a large gathering of underage high school students" congregated and consumed alcohol at the premises controlled by the Niesens.2 The Nichols further alleged that the Niesens "knowingly permitted and failed to take action to prevent the illegal consumption of alcoholic beverages by underage persons, including ... Carr on premises under their control contrary to Section 125.07(1)(a)3." On information and belief, the Nichols alleged that "the Niesens were aware that the minors on their property were consuming alcohol." The Nichols did not allege that the Niesens knew, in advance, that the students would be consuming alcohol. The Nichols contended that the Niesens "had a duty to supervise and monitor the activities on their property" and that they were negligent because they failed to do so.

¶ 6 The Nichols contended that the consumption of alcohol by Carr was a substantial factor in causing the accident. Defendant Michael Shumate (Shumate),3 "or one or more adult residents of his household[,]" not the Niesens, was alleged to have provided the alcohol that was consumed by Carr on the Niesens' property. There was no allegation that Shumate was at the Niesens' property.

¶ 7 The Nichols filed suit against Carr and her automobile insurance company, Progressive Northern Insurance Company (Progressive). The Nichols also filed a complaint against the Niesens and their homeowner's insurance company, BRMIC. Progressive settled for its policy limits with the Nichols, and was excused from further defense' of Carr in this lawsuit. The Niesens then moved to dismiss the Nichols' complaint for failure to state a claim. The circuit court dismissed the Nichols' complaint, because it agreed with the Niesens that the Nichols' reliance on Wis. Stat. §§ 125.07(1)(a)3 and 125.035 (2003-04)4 was misplaced, and also because

746 N.W.2d 224

it agreed with the Niesens that the Nichols had not stated a claim in common-law negligence. The Nichols did not allege a violation of § 125.035 in any of the three versions of their complaint, so there was no need for the circuit court to address that statute. The court of appeals affirmed the circuit court's holding that none of those statutes could provide the basis for civil liability against the Niesens, and the Nichols did not seek review of that ruling before this court. The court of appeals did, however, allow the Nichols to proceed with their common-law negligence claim against the Niesens.

II

¶ 8 We begin with a discussion of the standard of review. This case is before us in the context of a motion to dismiss. A motion to dismiss tests the legal sufficiency of the plaintiffs complaint. Doe v. Archdiocese of Milwaukee, 211 Wis.2d 312, 331, 565 N.W.2d 94 (1997). When reviewing such a motion, we accept the alleged facts and the reasonable inferences as true, but we draw all legal conclusions independently. Walberg v. St. Francis Home, Inc., 2005 WI 64, 16, 281 Wis.2d 99, 697 N.W.2d 36. A complaint should be liberally construed, and a plaintiffs claims should be dismissed only "if it is `quite clear' that there are no conditions under which that plaintiff could recover." John Doe v. Archdiocese of Milwaukee, 2005 WI 123, 120, 284 Wis.2d 307, 700 N.W.2d 180 (citations omitted). We review the circuit court's decision, and that of the court of appeals, de novo, but we benefit from those decisions. Id., ¶ 19.

III

¶ 9 On review, the Nichols claim that the Niesens' conduct was negligent, and that it was reasonably foreseeable that someone drinking on the Niesens' property would cause an accident. The Nichols argue that they are not seeking "an expansion of liability as it relates to alcohol law in Wisconsin." Instead, they contend that they are "simply asking that the Niesens' behavior be analyzed against [Wisconsin's] well-established negligence standard," The Nichols contend that this case does not merit unique consideration because alcohol was involved.5 The Nichols also claim that public policy factors do not require that the Niesens be granted immunity from their alleged negligence, especially because Wisconsin's public policy supports both the reduction of driving while intoxicated and the reduction of underage drinking. The Nichols contend that, if the legislature had wanted to create immunity for conduct like the Niesens' conduct, it would have done so explicitly.

¶ 10 On review, the Niesens argue that knowledge of someone drinking on one's

746 N.W.2d 225

premises does not create a foreseeable risk of harm to others, and that public policy issues preclude liability in cases such as this one. The Niesens argue that the court of appeals created a new basis of liability for social hosts in Wisconsin. They argue that social hosts have never been held liable in Wisconsin solely because they were aware that an underage person had been consuming alcohol. To allow the court of appeals' decision to stand would mean that liability would apply to any social hosts who knew of underage drinking, regardless of where the alcohol was possessed or consumed, which would lead to liability with no sensible stopping point. The Niesens argue that they had limited involvement with the party outside of their alleged knowledge of underage drinking at the party, and, as a result, they should not be held liable. To hold social hosts liable in such circumstances would place an unreasonable burden on social hosts. The Niesens argue that a reasonable person would not foresee that knowledge of some unidentified underage person drinking would create an unreasonable risk to others. Rather, a reasonable person would conclude that any such risk was created by the provider of the alcohol and the underage drinker. The Niesens contend that, because they played no role in procuring or furnishing the alcohol, a negligence analysis should not be applied to their actions in this matter. Finally, the Niesens argue that the legislature, not the judiciary, is the branch of Wisconsin's government that should impose any new liability on social hosts who do not provide alcoholic beverages to underage guests.

¶ 11. Whether the Nichols' complaint states a claim for common-law...

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28 practice notes
  • Hornback v. Archdiocese of Milwaukee, No. 2006AP291.
    • United States
    • United States State Supreme Court of Wisconsin
    • July 16, 2008
    ...whether the defendant was negligent, with the causation and damages questions asked separately. See Nichols v. Progressive N. Ins. Co., 2008 WI 20, ¶ 12, ___ Wis.2d ___, 746 N.W.2d 220 (citing Wis JI—Civil 1005 ¶ 17 In Nichols, we stated that the court of appeals' decision in that case coul......
  • Behrendt v. Gulf Underwriters Ins. Co., No. 2006AP2910.
    • United States
    • United States State Supreme Court of Wisconsin
    • July 9, 2009
    ...the defendant was negligent, and then the elements of causation and damages are addressed." Nichols v. Progressive Northern Ins. Co., 2008 WI 20, ¶ 12, 308 Wis.2d 17, 746 N.W.2d 220 (citing Wis. JI—Civil 1005 (2006)). 768 N.W.2d 574 ¶ 15 The court of appeals, relying on language in A.E. Inv......
  • Adams v. Northland Equip. Co., No. 2012AP580.
    • United States
    • United States State Supreme Court of Wisconsin
    • July 22, 2014
    ...a claim against a tortfeasor for injuries that party sustained due to the tortfeasor's negligence. See Nichols v. Progressive N. Ins. Co., 2008 WI 20, ¶¶ 11–12, 308 Wis.2d 17, 746 N.W.2d 220 (explaining the elements of common law negligence and some of the common law rules for such a claim)......
  • Juliano v. Simpson , SJC–10843.
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • February 21, 2012
    ...A.2d 241 (2000); Knight v. Rower, 170 Vt. 96, 101–102, 742 A.2d 1237 (1999); Nichols v. Progressive N. Ins. Co., 308 Wis.2d 17, 38–39, 746 N.W.2d 220 (2008). The plaintiffs make a compelling argument that underage drinking and driving is a persistent and widespread societal problem. The Leg......
  • Request a trial to view additional results
28 cases
  • Hornback v. Archdiocese of Milwaukee, No. 2006AP291.
    • United States
    • United States State Supreme Court of Wisconsin
    • July 16, 2008
    ...whether the defendant was negligent, with the causation and damages questions asked separately. See Nichols v. Progressive N. Ins. Co., 2008 WI 20, ¶ 12, ___ Wis.2d ___, 746 N.W.2d 220 (citing Wis JI—Civil 1005 ¶ 17 In Nichols, we stated that the court of appeals' decision in that case coul......
  • Behrendt v. Gulf Underwriters Ins. Co., No. 2006AP2910.
    • United States
    • United States State Supreme Court of Wisconsin
    • July 9, 2009
    ...the defendant was negligent, and then the elements of causation and damages are addressed." Nichols v. Progressive Northern Ins. Co., 2008 WI 20, ¶ 12, 308 Wis.2d 17, 746 N.W.2d 220 (citing Wis. JI—Civil 1005 (2006)). 768 N.W.2d 574 ¶ 15 The court of appeals, relying on language in A.E. Inv......
  • Adams v. Northland Equip. Co., No. 2012AP580.
    • United States
    • United States State Supreme Court of Wisconsin
    • July 22, 2014
    ...a claim against a tortfeasor for injuries that party sustained due to the tortfeasor's negligence. See Nichols v. Progressive N. Ins. Co., 2008 WI 20, ¶¶ 11–12, 308 Wis.2d 17, 746 N.W.2d 220 (explaining the elements of common law negligence and some of the common law rules for such a claim)......
  • Juliano v. Simpson , SJC–10843.
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • February 21, 2012
    ...A.2d 241 (2000); Knight v. Rower, 170 Vt. 96, 101–102, 742 A.2d 1237 (1999); Nichols v. Progressive N. Ins. Co., 308 Wis.2d 17, 38–39, 746 N.W.2d 220 (2008). The plaintiffs make a compelling argument that underage drinking and driving is a persistent and widespread societal problem. The Leg......
  • Request a trial to view additional results

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