Stephenson v. Universal Metrics, Inc.

• Decision Date: 28 March 2002
• Docket Number: No. 00-1397.,00-1397.
• Citation: 251 Wis.2d 171,641 N.W.2d 158,2002 WI 30
• Parties: Ricky D. STEPHENSON, Individually and as Personal Representative for the Estate of Kathy M. Stephenson, Plaintiff-Respondent, v. UNIVERSAL METRICS, INCORPORATED, American Family Mutual Insurance Company and West American Insurance Company, Defendants, John H. KREUSER and Sentry Insurance, A Mutual Company, Defendants-Appellants-Petitioners.
• Court: Wisconsin Supreme Court

251 Wis.2d 171

2002 WI 30

641 N.W.2d 158

Ricky D. STEPHENSON, Individually and as Personal Representative for the Estate of Kathy M. Stephenson, Plaintiff-Respondent, v. UNIVERSAL METRICS, INCORPORATED, American Family Mutual Insurance Company and West American Insurance Company, Defendants, John H. KREUSER and Sentry Insurance, A Mutual Company, Defendants-Appellants-Petitioners.

No. 00-1397.

Supreme Court of Wisconsin.

Oral argument December 3, 2001.

Decided March 28, 2002.

For the defendants-appellants-petitioners there were briefs by James M. Fredericks and Borgelt, Powell, Peterson & Frauen, S.C., Milwaukee, and oral argument by James M. Fredericks.

For the plaintiff-respondent there was a brief by Michael L. Bertling and McLario, Helm & Bertling, S.C., Menomonee Falls, and oral argument by Michael L. Bertling.

¶ 1. JON P. WILCOX, J.

This case is a review of a published opinion of the court of appeals, Stephenson v. Universal Metrics, 2001 WI App 128, 246 Wis. 2d 450, 630 N.W.2d 767, which affirmed an order of the Milwaukee County Circuit Court, Victor Manian, Judge. The court of appeals held that when an individual indicates to a bartender that he will drive an intoxicated person home, thereby allowing the bartender to serve the intoxicated person more alcohol, that individual assumes a legal duty to drive the intoxicated person home. The court of appeals held that, pursuant to the duty, when the individual who agrees to drive subsequently does not drive the intoxicated person home, that individual can be held liable for any injury or damage caused by the intoxicated person's driving. The court of appeals also held that immunity under Wis. Stat. § 125.035 (1997-98)¹ does not apply in such a case.

¶ 2. In this case, Ricky Stephenson, individually and on behalf of the estate of his wife, Kathy Stephenson, (hereinafter referred to collectively as "Stephenson") brought suit against Universal Metrics, Inc., ("UMI") and against John Kreuser for wrongfully causing Kathy's death. Kathy was killed in an automobile collision with Michael Devine, who was intoxicated at the time of the crash. Earlier in the evening, Kreuser had indicated to a bartender that he would drive Devine home from a UMI employee party. Based on that assurance, the bartender provided more alcohol to Devine. Kreuser later decided not to drive Devine home. ¶ 3. Kreuser filed a motion to dismiss the complaint against him, arguing that he could not be held liable for the injuries caused by Devine's drunk driving. The circuit court denied Kreuser's motion and, on appeal, the court of appeals upheld the circuit court's ruling. Kreuser then petitioned this court for review, which we granted. We now reverse the court of appeals' decision and hold that Stephenson's claim against Kreuser should have been dismissed.

I

¶ 4. On the evening of December 4, 1998, UMI sponsored a social gathering for its employees at the Silver Spring Country Club ("the Country Club") in Menomonee Falls. The gathering included dinner, an awards presentation, and cocktails. Michael Devine and John Kreuser were both employees of UMI, and both attended the party. Devine and Kreuser drove separately to the event.

¶ 5. UMI provided each attendee with two vouchers, which were each redeemable for either an alcoholic or a non-alcoholic beverage. Once the vouchers were used, additional beverages had to be purchased individually by the attendee. The Country Club provided a bartender who served the beverages.

¶ 6. At about 8:30 that evening, Kreuser and his wife were talking with another couple at the bar when Kreuser overheard the bartender ask Devine if he had a ride home. When Kreuser turned to look, he saw Devine make a motion with his head, suggesting that Kreuser would be responsible for driving Devine home. Kreuser indicated to the bartender that he would, in fact, give Devine a ride home.² Once Kreuser agreed that he would drive Devine home, the bartender served Devine several more drinks. Kreuser saw Devine take the drinks back to the table where Devine had eaten dinner.

¶ 7. Between 9:00 and 9:15 p.m., Kreuser saw Devine again. Kreuser was chatting with several people when Devine approached him. Devine told Kreuser that the bartender had cut him off. Devine then asked Kreuser to buy him a drink. In his deposition, Kreuser stated that it was evident at that time that Devine had been drinking, but Devine was not intoxicated to the point where he was stumbling or slurring his speech. Kreuser declined to buy Devine a drink and Devine did not persist. This was the last time Kreuser talked to Devine that evening and Kreuser does not remember seeing Devine at the party after that.

¶ 8. Kreuser and his wife left the party at about 10:00 that evening. As they were leaving, Kreuser decided not to give Devine a ride home.³ Kreuser did not attempt to locate Devine, and he failed to tell Devine or anyone else that he did not intend to give Devine a ride home. There is no evidence, however, that shows whether Devine left the party before or after Kreuser. ¶ 9. At approximately 10:40 p.m., Devine was driving his own vehicle when he crossed the centerline of the highway and struck another vehicle, which was driven by Kathy Stephenson. Both Devine and Kathy Stephenson died as a result of injuries they suffered in the collision. The State Crime Laboratory measured Devine's blood alcohol concentration at 0.338 g/dl—a level considerably over Wisconsin's legal limit. See Wis. Stat. §§ 340.01(46m), 346.63(1)(b).

¶ 10. Ricky Stephenson, on his own behalf and as the representative for Kathy's estate, brought suit against UMI, UMI's insurers (West American Insurance and American Family Mutual Insurance), Kreuser, and Kreuser's insurer (Sentry Insurance). Stephenson alleged several causes of action, including that UMI had failed to control Devine's conduct, that UMI had failed to properly supervise Devine, that UMI had voluntarily assumed a duty to see that Devine had a safe way to get home, and that Kreuser had voluntarily assumed a duty to drive Devine home.

¶ 11. Both UMI and Kreuser moved for summary judgment. The circuit court granted summary judgment to UMI and its insurers, holding that under Wis. Stat. § 125.035 and Greene v. Farnsworth, 188 Wis. 2d 365, 525 N.W.2d 107 (Ct. App. 1994), UMI was immune from liability. The circuit court denied Kreuser's motion, however. Applying the framework of Restatement (Second) of Torts § 324A (1965) laid out by the court of appeals in Gritzner v. Michael R., 228 Wis. 2d 541, 598 N.W.2d 282 (Ct. App. 1999),⁴ the circuit court held that Kreuser could be held liable for Devine's actions. ¶ 12. Stephenson and Kreuser both appealed, and the court of appeals bifurcated the issues. In one appeal (not at issue in the present case) the court of appeals held that the circuit court properly dismissed Stephenson's claims against UMI. Stephenson v. Universal Metrics, 2001 WI App 173, 247 Wis. 2d 349, 633 N.W.2d 707. In that same case, the court of appeals found that there was a question of fact regarding whether Kreuser had acted within the scope of his employment, and reversed the circuit court's grant of summary judgment on that issue. Id. at ¶ 17.

¶ 13. In the appeal at issue in the present case, the court of appeals held that, pursuant to this court's decision in Gritzner v. Michael R., 2000 WI 68, 235 Wis. 2d 781, 611 N.W.2d 906, Kreuser had assumed a legal duty to drive Devine home and could therefore be held liable for injuries proximately caused by Devine. The court of appeals also held that Kreuser was not immune from liability under § 125.035.

¶ 14. On review of that issue, we reverse the holding of the court of appeals. Although we agree that this case fits the framework of Restatement (Second) of Torts § 324A, we hold that under the facts of this case, Kreuser's liability is precluded both by § 125.035 and by public policy. We therefore hold that Kreuser's motion for summary judgment should have been granted.

II

[1, 2]

¶ 15. We begin by examining the question of Kreuser's duty. In any negligence claim, the first element that must be proven by the plaintiff is that some duty of care existed on the part of the defendant. Gritzner, 2000 WI 68, ¶¶ 19-20 (citing Miller v. Wal-Mart Stores, Inc., 219 Wis. 2d 250, 260, 580 N.W.2d 233 (1998); Rockweit v. Senecal, 197 Wis. 2d 409, 418, 541 N.W.2d 742 (1995)). Whether such a duty exists is a question of law, which this court reviews de novo. Coffey v. City of Milwaukee, 74 Wis. 2d 526, 531, 247 N.W.2d 132 (1976).

[3-5]

¶ 16. In determining whether a duty exists, Wisconsin follows the approach of the dissent in the wellknown Palsgraf decision. Palsgraf v. Long Island R.R. Co., 162 N.E. 99 (N.Y. 1928); see also Schilling v. Stockel, 26 Wis. 2d 525, 531, 133 N.W.2d 335 (1965)

; Klassa v. Milwaukee Gas Light Co., 273 Wis. 176, 182, 77 N.W.2d 397 (1956). Under that approach, every person owes a duty to the world at large to refrain from conduct that could cause foreseeable harm to others, even though the identity of the person harmed has not been established at the time of the conduct. Rockweit, 197 Wis. 2d at 419-20. A person is negligent when he or she fails to exercise "ordinary care"—the amount of care which a reasonable person would use under similar circumstances. Gritzner, 2000 WI 68, ¶ 22 (citing Wis JI-Civil 1005); Osborne v. Montgomery, 203 Wis. 223, 231, 234 N.W. 372 (1931). Thus, when determining the existence of a duty, the primary question we ask is not whether the defendant has a duty to take (or refrain from) certain actions, but whether the defendant's actions (or lack thereof) were consistent with the general duty to exercise a reasonable degree of care under the circumstances. Gritzner, 2000 WI 68, ¶ 25.

¶ 17. It is against this backdrop that we must decide whether Kreuser had a duty to drive Devine home. Specifically at issue is whether the framework of Restatement (Sec...