It's party season; time to review state statutes on liability

With the company party season in full swing, it is a good time to review the statutes regarding liability for serving alcohol.

In Wisconsin, when an underage person is provided alcohol, becomes intoxicated and injures or kills someone, those who knowingly sold or provided the alcohol can be liable. The claim is one of negligence. Wisconsin courts have generally based such liability of social hosts (providers of alcohol other than commercial vendors, such as bars or liquor stores) on affirmative actions engaged in by them, such as purchasing alcohol for, or giving alcohol to, the underage person or by the conscious act of contributing money toward their purchase of alcohol.

Wisconsin prohibits the possession or consumption of alcohol by people under age 21 unless they are with a parent, guardian or spouse over age 21. Wis. Stat. section 125.07(4)(a). Section (1)(a) of that same statute sets forth restrictions and prohibitions against providing alcohol to such unaccompanied underage persons. Chief among these is that no person "may procure for, sell, dispense or give away any alcohol beverages to any underage person not accompanied by his or her parent, guardian or spouse who has attained the legal drinking age."

The statute also provides that an adult may not "knowingly permit or fail to take action to prevent" an underage person’s illegal alcohol consumption "on premises owned by the adult or under the adult’s control," except when the alcohol consumption is exclusively part of a religious service. Because "premises" is defined as property subject to a liquor license or permit, courts have held this not to apply to other properties owned by adults, such as private residences. Additionally, an adult may not "intentionally encourage or contribute to" an underage person’s illegal possession or consumption of alcohol.

Those found in violation of this statute are subject to a monetary penalty called a civil forfeiture. Repeat offenders are subject to criminal penalties, including a fine, jail time, or both.

Wisconsin follows the old common law rule that people injured by an intoxicated adult have no cause of action against the provider of alcohol, whether the provider is a vendor or a social host.

For many years, the same rule applied in cases involving underage drinkers as well.

However, in 1984 the Wisconsin Supreme Court held that a vendor who negligently provides alcohol to an underage person who causes them to become intoxicated, resulting in an impaired driving ability, is liable to third persons injured as a result. The following year, the same Court extended such liability to social hosts who provide alcohol to a minor, concluding that the negligent social host shall be liable to third persons in the proportion that the negligence in providing the intoxicating beverage to the underage person was "a substantial factor" in causing an accident or injuries.

The Wisconsin Legislature, seeking to discourage knowingly providing alcohol to underage persons by means of holding such suppliers liable for third-party injuries, eliminated immunity for those who provide alcohol to underage persons unaccompanied by a parent or guardian.

The result was the creation of Wisconsin Statute 125.035, titled "Civil liability exemption: furnishing alcohol beverages."

The statute, enacted in November 1985, preserves immunity for furnishing alcohol to adults by providing that "a person is immune from civil liability arising out of the act of procuring alcohol beverages for or selling, dispensing or giving away alcohol beverages to another person." Subsection 4 of that statute excepts from immunity, i.e., permits action against, a provider who knowingly provides alcohol to underage persons if it results in injury to a third party.

Thus, no immunity exists if: (1) one provides alcohol beverages or sells, dispenses, or gives away alcohol beverages to an unaccompanied underage person — in violation of section 125.07(1)(a); (2) the provider knew or should have known that the underage person was under the legal drinking age; and (3) the alcohol provided to the underage person was a substantial factor in causing injury to a third party. If these three elements are met, the provider is liable for a per se claim of negligence.

In summary, those who supply alcohol to underage drinkers who are accompanied by a parent or guardian retain immunity from liability and, thus, do not face liability. "Accompanying," however, requires a degree of individualized supervision.

The mere presence of a parent on the premises where their underage child is consuming alcohol, without control over, or knowledge of how much the child has had to consume, does not satisfy the accompanying standard. The Legislature presumes that in such situations the parent is minimizing risk by supervising the child.