Sorensen by Kerscher v. Jarvis

• Decision Date: 28 June 1984
• Docket Number: Nos. 83-1821,83-1834,s. 83-1821
• Citation: 350 N.W.2d 108,119 Wis.2d 627
• Parties: Zachary SORENSEN and Sarah F. Sorensen, minors, by John F. KERSCHER, their guardian ad litem, and Ronald Tempesta and Irene P. Tempesta, their guardians, Plaintiffs-Appellants, v. Ronald W. JARVIS, Richard Jarvis, and Wisconsin Employers Casualty Company, Defendants, Franksville Bank of Liquors, Ltd., Defendant-Respondent. Scott A. FERRARO, a minor, by C. James HEFT, his guardian ad litem, and Karen Ferraro, his mother, Plaintiffs-Appellants, v. Ronald W. JARVIS, Richard Jarvis, his father and sponsor, and The Wisconsin Employers Casualty Company, an insurance corporation, Defendants, Robert M. Tonar, doing business under the name and style of Franksville Bank of Liquors, Ltd., Defendant-Respondent.
• Court: Wisconsin Supreme Court

Page 108

350 N.W.2d 108

119 Wis.2d 627

Zachary SORENSEN and Sarah F. Sorensen, minors, by John F.

KERSCHER, their guardian ad litem, and Ronald

Tempesta and Irene P. Tempesta, their guardians, Plaintiffs-Appellants, v. Ronald W. JARVIS, Richard Jarvis, and Wisconsin Employers

Casualty Company, Defendants,

Franksville Bank of Liquors, Ltd., Defendant-Respondent.

Scott A. FERRARO, a minor, by C. James HEFT, his guardian ad

litem, and Karen Ferraro, his mother, Plaintiffs-Appellants, v. Ronald W. JARVIS, Richard Jarvis, his father and sponsor, and The Wisconsin Employers Casualty Company, an

insurance corporation, Defendants,

Robert M. Tonar, doing business under the name and style of

Franksville Bank of Liquors, Ltd., Defendant-Respondent.

Nos. 83-1821, 83-1834.

Supreme Court of Wisconsin.

Argued April 25, 1984.

Decided June 28, 1984.

[119 Wis.2d 628] John F. Kerscher, Racine (argued), for plaintiffs-appellants in case no. 83-1821; Constantine, Christensen, Krohn & Kerscher, S.C., Racine, on brief.

C. James Heft, Racine (argued), for plaintiffs-appellants in case no. 83-1834; Heft, Dye, Heft & Paulson, S.C., Racine, on brief; Janet Gill Hernandez and T. Christopher Kelly, Madison, of counsel.

Robert L. Swanson, Racine (argued), for defendant-respondent; DeMark, Kolbe & Brodek, S.C., Racine, on brief.

Peter A. Peshek, Judy A. Derouin and DeWitt, Sundby, Huggett, Schumacher & Morgan, S.C., Madison, for amicus curiae the Tavern League of Wisconsin, Inc.

Howard A. Davis, Charles F. Stierman and Habush, Habush & Davis, S.C., Milwaukee, for amicus curiae Milwaukee County Chapter of Mothers Against Drunk Drivers.

HEFFERNAN, Chief Justice.

These cases are before us on appeal from judgments of the circuit court for Racine county, James Wilbershide, Circuit Judge, dismissing the complaints because they fail to state a claim upon which relief could be granted. ¹

The question here is whether a third party injured by an intoxicated minor has a common law negligence action against a retail seller for the negligent sale of an intoxicating beverage to a person the seller knew or should have known was a minor and whose consumption of the alcohol was a cause of the accident.

Based on a series of cases of this court holding that the cause of an accident involving an intoxicated driver was the consumption of the alcohol by the driver and not the sale or the furnishing of the alcohol to the driver by a vendor, the trial court held that no claim was stated upon which relief could be granted. We reverse and hold that, under facts which may be proved under the pleadings, a cause of action for common law negligence against the vendor has been stated.

Two actions have been brought against the liquor dealer, Robert M. Tonar, d/b/a Franksville Bank of Liquors, Ltd. The facts alleged in each complaint are, for the purposes of this appeal, substantially the same and are considered together.

On October 27, 1981, Ronald W. Jarvis, a minor aged seventeen, invited Scott A. Ferraro to go for a ride. Jarvis purchased a bottle of liquor from Tonar at the Franksville Bank of Liquors. Approximately twenty minutes later, Jarvis returned to the store and purchased another bottle of liquor. Sometime later that evening, Ronald Jarvis failed to stop at a stop sign, proceeded through an intersection, and collided with a vehicle driven by James L. Sorensen. Sorensen and his wife, Sarah, were killed, and their two children, Zachary and Sarah, were injured. Ferraro, Jarvis' passenger was also injured. An action was commenced by the minor Sorensens against Jarvis for his negligent and intoxicated driving and against the liquor dealer for negligently selling the liquor to the minor Jarvis, which acts of negligence combined to cause the wrongful deaths of the elder Sorensens and the personal injuries of the children.

An action was also commenced by Ferraro alleging that his injuries were caused by the combined negligence of Jarvis in respect to his intoxicated driving of the car and that his injuries were also caused by the negligence of the liquor dealer in selling liquor to the minor Jarvis, which liquor caused the driver's intoxicated condition. ²

In respect to the facts pleaded as set forth above, we accept these facts as being true. The complaint must be liberally construed to do substantial justice and, if reasonably possible, construed to state a cause of action. Moreover, this court will affirm an order of a trial court dismissing a claim for relief only if it appears to a certainty that the plaintiff could not prove any set of facts that would support the claim. As stated in footnote 2, arguably there are lacunae in the allegations of negligence set forth in the complaints, but notice was given by both sets of plaintiffs in respect to the basic facts and the theory on which the claims were predicated. We accepted these cases on bypass, not to determine a routine pleading issue, but to determine whether public policy was better served by concluding that the plaintiffs had a cause of action under the facts pleaded against a vendor of liquor or whether public policy would be better served by placing the entire legal blame upon the consumer of the alcohol.

We do not commence our analysis from scratch. The general considerations pertinent to whether or not there is, or should be, a cause of action against a liquor vendor date back to at least the formation of the Wisconsin territory. ³ Consistent with this court's interpretation in Farmers Mutual Automobile Ins. Co. v. Gast, 17 Wis.2d 344, 117 N.W.2d 347 (1962), this court has held either that this area of responsibility was preempted by legislation or that, as a matter of policy, it was a matter of public concern that could best be handled by the legislature.

We conclude that, on the basis of past cases decided by this court, this court is free to determine whether, as a matter of policy, we should recognize a common law cause of action by an injured third person against a vendor of liquor.

We first review the points urged by the defendants to support their premise that this court is barred from considering a change in the present law.

While the defendants have asserted that this court could not change the common law view that only the conduct of the consumer of the liquor constituted a cause of an injury, and not the supplier, that rigid method of interpretation of our constitution has long been repudiated. We specifically stated in State v. Esser, 16 Wis.2d 567, 115 N.W.2d 505 (1962), that the evolution of the common law was a matter of continuing concern to the courts and that we were not to be thrust into a rigid and unchangeable view of the common law by sec. 13, art. XIV, of the Wisconsin Constitution. ⁴ We said:

"We conclude that the function of sec. 13, art. XIV, Wis. Const., was to provide for the continuity of the common law into the legal system of the state; expressly made subject to legislative change (in as drastic degree within the proper scope of legislative power as the legislature might see fit) but impliedly This court has also recognized:

subject, because of the historical course of the development of the common law, to the process of continuing evolution under the judicial power." Esser, 16 Wis.2d at 584, 115 N.W.2d 505.

" '... that the common law is susceptible of growth and adaptation to new circumstances and situations, and that courts have power to declare and effectuate what is the present rule in respect of a given subject without regard to the old rule.... The common law is not immutable, but flexible, and upon its own principles adapts itself to varying conditions.' Dimick v. Schiedt, 293 U.S. 474, [487, 55 S.Ct. 296, 301, 79 L.Ed. 603 (1935) ]," quoted with approval in Schwanke v. Garlt, 219 Wis. 367, 371, 263 N.W. 176 (1935).

Thus, as a part of our common law heritage, this court is free to amend the common law. True, as we have frequently stated, the legislature may amend or change our determinations of the common law, but we are not bound to adhere to the holdings of the common law as it existed in 1848. ⁵

A case upon which defendants rely, Garcia v. Hargrove 46 Wis.2d 724, 176 N.W.2d 566 (1970), makes it clear that this court is not bound to a common-law rule whether or not it existed prior to Wisconsin's reception into the Union. We said:

"The fact a common-law rule was in effect when the Wisconsin Constitution was adopted does not mean this court is 'bound by the common law' and unable to change the law when it no longer meets the economic and social needs of society." 46 Wis.2d at 731, 176 N.W.2d 566.

The defendant has also asserted that we are not free to change the common law as it now exists, because a recent legislative attempt to do so failed. Defendant asserts that, because Assembly Bill 371, which would have declared there was liability on one who illegally sold, furnished, or gave away intoxicating liquors illegally, was allowed to die in committee, this was tantamount to a declaration of the legislative will not to change the common law. While in the past we have indicated that nonaction by the legislature could be so interpreted (see, Schwenkhoff v. Farmers Mutual Automobile Ins. Co., 11 Wis.2d 97, 104 N.W.2d 154 (1960)), we have since stated that, even where there has been some evidence, arguably, of the legislature's will by its failure to act, we are not foreclosed from acting. ⁶

We have also pointed out that the nonpassage of a bill is not reliable evidence of legislative intent, for it may have failed by reason of insufficient legislative time for consideration and because of bill priorities established by legislative leadership, or the efforts of special interests, or lobbying efforts at a committee or floor level, or numerous unidentifiable, extraneous factors unrelated to what the majority of the legislature thought about the merits of a bill. Had the bill passed and become the law, there would have been a clearly...