Wisconsin Court of Appeals rules homeowners liable for acts of drinking minors.

Byline: David Ziemer

Public policy does not bar injured third parties from pursuing negligence actions against adults who permit high school students to drink alcohol on their property, the Wisconsin Court of Appeals held on Jan. 25. According to the allegations in the complaint, in 2004, Ed-ward and Julie Niesen allowed a group of high school students to hold a party on their property, knowing that the underage party guests were consuming alcohol, and did not supervise or prevent alcohol consumption on their property. Beth Carr was one of the underage drinkers who attended the party, and while driving while intoxicated afterwards, she collided with another vehicle occupied by Shannon, Lee, Brooke, and Brittney Nichols. Carr's insurance company settled with the Nichols for the policy limits, and the Nichols filed a negligence action against the Niesens. Columbia County Circuit Court Judge Richard Rehm dismissed the action, and the Nichols appealed. The court of appeals reversed, in a decision written by Judge Charles P. Dykman, and joined by Judge Paul B. Higginboth-am. Judge David G. Deininger dissented. Statutes The court began by finding that the Niesens are neither immune from civil liability, nor were they negligent per se. Section 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." The court found the statute inapplicable, however, because the Niesens did not provide the alcohol for the party. In addition, subsec. (4)(b) of the statute states that subsec. (2) does not apply if the defendant knew or should have known that he was providing alcohol to an underage person. The court thus found that neither the statutory immunity, nor the exception to immunity, applies to this case. However, the court also found that the Niesens were not negligent per se. Section 125.07(1)(a)(3) provides, "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." However, the definition of "premises" in Chapter 125 is limited to licensed property; thus, the court held that the Niesens cannot be negligent per se. Common Law Instead, the court held that the case could proceed only as a common law negligence claim. The court began with a lengthy discussion of duty, ultimately concluding that the Niesens had a duty to refrain from knowingly permitting underage high school students to drink alcohol on their property, and that the complaint sufficiently alleged a breach of that duty. Public Policy The court then turned to whether public policy factors preclude liability, and concluded that they did not. The court noted that, until 1984...