I. A
Clear and Present Danger
The number of alcohol related accidents each year is
staggering, and continues to account for a substantial
percentage of both criminal and civil lawsuits.
According to the National Commission Against Drunk
Driving (NCADD), “Approximately 10,000 people die and
250,000 people are injured each year as a result of
individuals who continually drink and drive. In
addition, chronic drinking drivers cost the economy $1.5
billion per year in enforcement and adjudication and $45
billion per year in property damage”
www.ncadd.com
These numbers are grave examples of the prevalence of
drunk driving today.
The NCADD survey indicates that on a yearly average,
nearly 25% of Americans drive shortly after consuming at
least some alcohol. When juxtaposed with the fact that
the number of drivers in the United States in 1998 was
estimated to be over 166 million, the statistics
indicate that approximately 41.5 million people per year
have driven after consuming alcohol. Moreover, the NCADD
survey points out that, “Of this group, between 1.5 to
4.0 million have driven after consuming enough alcohol
to be impaired at the .08 level.”
The AAA Foundation for Traffic Safety used statistics
from the Insurance Institute for Highway Safety to
discover that, “In 1998, 28% of drivers killed in
traffic crashes had blood alcohol concentrations (BACs)
of .10 or higher.”
http://aaafts.org
These figures are shocking in and of themselves, but
they are a gross understatement of the truth,
considering that most drunk driving goes undetected. The
NCADD estimates that the probability of arrest is 1 in
2000 incidents of drunk driving.
The statistics in Wisconsin are just as alarming.
Wisconsin Traffic Crash Facts for 2004 shows that
714 persons were killed and over 38,000 persons were
injured in Wisconsin motor vehicle traffic crashes. The
Wisconsin Department of Transportation reports that
In 2000, there were 9,096 alcohol-related crashes in
Wisconsin. An average of one person was killed or
injured in an alcohol-related crash every 74 minutes on
Wisconsin roadways. Alcohol-related crashes in Wisconsin
accounted for 6.5% of all crashes. In 2000, alcohol was
a contributing circumstance in 301 traffic deaths. That
represents 38 % of all traffic fatalities. Of the 538
drivers who died in 2000, 464 (86%) were tested for
alcohol. Of those tested, 192 (41%) tested positive for
alcohol and 165 (36%) were legally intoxicated (0.10 %
Alcohol Concentration (AC) or higher). In 2000, 38% of
all pedestrians and 35% of all motorcycle operators
killed in crashes had an alcohol concentration of 0.10 %
AC or higher.
The above
statistics further prove the relationship between
alcohol and accidents.
II. What
Constitutes Drunk Driving?
The phrase “drunk driving,” when used in a legal context
can be referred to as “operating while intoxicated,”
“operating under the influence,” or operating with
“prohibited alcohol concentration.” Wis. Stats.
§346.63 prohibits any person from driving or
operating a motor vehicle under the influence of an
intoxicant, a controlled substance, or any combination
of such. Most often, drunk driving is proven by a
blood-alcohol concentration (BAC) that exceeds the legal
limit.
The BAC number is a measurement of the percentage of
alcohol in one’s blood. Specifically, it is the number
of grams of alcohol per 100 milliliters of a person’s
blood. Wis. Stats.
§340.01(1v)(a). This measurement is used to
establish what constitutes legal intoxication and helps
determine the level of impairment of a driver. In
Wisconsin, the legal limit for first and second offenses
is a BAC of .08, pursuant to Wis. Stats.
§340.01(46m)(a). However, if the person has three or
more prior offenses, the prohibited alcohol
concentration level is lowered to .02, pursuant to Wis.
Stats.
§340.01(46m)(b). Theses laws apply to persons who
have attained the legal drinking age, are not working
within the scope of employment, and are not operating a
commercial vehicle. Nonetheless, there are laws that
strictly prohibit the amount of alcohol concentration,
in one way or another, under practically any
circumstance.
Most places of employment have their own explicit rules
regarding the consumption of alcohol and the prohibited
alcohol concentration of its employees. However, there
are specific laws that address this issue also. The
United States Code of Federal Regulations contains
national laws regarding the operation of a commercial
motor vehicle.
49 C.F.R. §392.5(a)(2) prohibits any driver from
having, “any measured alcohol concentration or detected
presence of alcohol, while on duty, or operating or in
physical control of a commercial motor vehicle.” This
law is echoed in Wisconsin by Wis. Stats.
§346.63(7)1. The legal BAC limit for an operator of
a commercial motor vehicle while not on duty is .04. See
49 C.F.R. §382.201 and Wis. Stats.
§346.63(5)(a).
Persons under the legal drinking age of 21 are not
allowed to have any alcohol concentration at all.
Absolute sobriety is required by Wis. Stats.
§346.63(2m). Violation of this statute results in an
automatic suspension of a person’s driver’s license. Any
BAC over the statutory .08 would subject an underage
driver to additional penalties. These penalties are
explained in more detail under section V. Criminal
Penalties for Drunk Driving.
III. How
is Drunk Driving Proved?
A driver’s appearance and conduct are usually the first
signs of an offense. An odor of alcohol, glassy or
bloodshot eyes, staggered or slurred speech, and/or
erratic behavior are good indications of intoxication.
If an officer witnesses these signs, or has other reason
to believe a driver may be under the influence of
alcohol, that officer will request the driver to perform
a series of field sobriety tests. These tests are
usually performed directly outside the vehicle without
delay. The officer can choose from a number of different
tests, including: walking a straight line; touching
finger-to-nose while leaning back; reciting the
alphabet; or a one-leg stand. If any of these tests give
the officer reason to believe the driver is intoxicated,
that driver will be probably be arrested and asked to
submit to a chemical test. The chemical test will
consist of either a blood-alcohol concentration test or
a breath-alcohol concentration test. Either will produce
an accurate reading of alcohol concentration, however,
the breath-alcohol test is most commonly utilized
because of its efficiency.
As explained above, the standard for benchmarking
intoxication comes from a BAC reading. Therefore, it is
essential that an officer provide this reading in order
to establish a foundation for either criminal or civil
prosecution. This is why Wisconsin has created the
Implied Consent Law, Wis. Stats. §343.305(2).
This law states that any person who is a operating a
motor vehicle on Wisconsin highways is “deemed to have
given consent to one or more tests of his or her breath,
blood or urine, for the purpose of determining the
presence or quantity in his or her blood or breath, of
alcohol . . . “ The implied consent is deemed to have
been given as a condition of receiving a driver’s
license. Hence, any driver will be required to submit to
a blood alcohol test upon request of an officer. Failure
to submit to such a test will impose statutory penalties
upon the accused, including the revocation of his or her
driver’s license for one year. Moreover, the offender
will only be eligible for an occupational driver’s
license after 30 days. Wis. Stats.
§343.305(10)(b)2. On the other hand, if convicted
for a first offense of driving while intoxicated, the
license suspension will only be at least six months, but
an occupational license will be immediately accessible
upon application. Wis. Stats.
§343.305(7)(a). The reason for the disparity in
penalties is to help facilitate chemical testing by
imposing strict mandatory sanctions for refusal.
Before administering the chemical test, an officer must
read the “Informing the Accused” form. This form is
mandatory under Wis. Stats.
§343.305(4). The form is intended to warn the
accused that any refusal to take the test will be a
violation of the implied consent statute, resulting in
an automatic license revocation for one year.
Furthermore, it explains that one is entitled to an
alternative chemical test after submitting to the
officer’s test, if requested. The implied consent law
can be violated by less than an outright refusal to
comply with an officer’s request to submit to a test,
according to the Wisconsin Supreme Court in
State v. Reitter, 227 Wis.2d 213, 595 N.W.2d 646
(1999). In this case, Reitter was stopped for reasons
suggesting intoxication. The officer proceeded to read
him the “Informing the Accused” form and asked Reitter
if he would submit to a breath-alcohol test. Reitter
repeatedly exclaimed that he wanted to talk to his
attorney. The officer continued to warn him of the
consequences of refusal. Reitter even stated that he was
not refusing, but only wanted to talk to his lawyer. The
Court ruled, however, that, “Reitter’s actions ring
louder than his articulated words, and regardless of his
words, he refused in fact.” The Court concluded as
follows:
We further
hold that because the implied consent statute operates
independently from the general statute reflecting the
Sixth Amendment right to counsel, no tension between the
two statutes caused a violation of Reitter’s due process
rights.
227 Wis.2d
at 243.
Reitter argued that the officer should have informed him
that he had no right to an attorney, and this failure
violated his constitutional rights. The Court pointed
out, though, that Reitter had already consented to take
a chemical test when he applied for a driver’s license,
and therefore it is unnecessary to seek advice from an
attorney about the decision to submit.
The BAC of an accused is extremely important in criminal
or civil prosecution. In fact, the entire case may rest
on whether or not there is sufficient evidence to prove
the accused had a prohibited alcohol concentration.
Therefore, the accused defendant will always try to
suppress any evidence that may have been obtained
through a blood-alcohol or breath-alcohol test, once a
lawsuit has been filed. There are some common defenses
or objections to the taking of this evidence by the
plaintiff, such as the Fourth, Fifth, and Sixth
Constitutional Amendments. Another is the statutory
physician-patient privilege, which prevents medical
records from being disclosed outside of the profession.
Nevertheless, there are ways around this concealment of
evidence.
IV.
Securing Evidence of Intoxication
The celebrated U.S. Supreme Court case,
Schmerber v. California, 384 U.S. 757 (1966),
involved a MVA with an intoxicated driver. The driver
was believed to be under the influence when a police
officer noticed symptoms such as the smell of liquor.
The officer placed him under arrest at the scene and
then followed him to the hospital where he was treated
for his own injuries. At the hospital, the officer
directed the physician to take a blood sample for a
report of his blood-alcohol concentration, despite the
driver’s refusal. The chemical analysis determined that
he was intoxicated. The issue at trial was whether the
admission of this evidence was a violation of the
defendant’s privilege against self-incrimination
accorded by the Fifth and Fourteenth Amendments. The
Supreme Court held that the privilege “protects an
accused only from being compelled to testify against
himself, or otherwise provide the State with evidence of
a testimonial or communicative nature, and that the
withdrawal of blood and use of the analysis in question
in this case did not involve compulsion to these ends.”
384 U.S. at 762. The Court noted that the privilege was
meant to protect against a suspect’s communications. The
distinction in this case was that compulsion to make an
accused the subject of real or physical evidence does
not violate these Amendments. In summary, the Court
stated as follows:
Since the
blood test evidence, although an incriminating product
of compulsion, was neither petitioner’s testimony nor
evidence relating to some communicative act or writing
by the petitioner, it was not inadmissible on privilege
grounds.
Id. at 765.
The Court also ruled against the defense of unlawful
search and seizure accorded by the Fourth Amendment. It
ruled that under the assumption that once the privilege
against self-incrimination is found not to bar compelled
intrusions, the Fourth Amendment’s function is to
constrain against intrusions that are not justified
under the circumstances. The Court noted that early
cases in both English and American law suggest that the
Government has a right to search an arrested person in
order to “discover and seize the fruits of evidences of
crime.” Weeks
v. United States, 232 U.S. 383 at 392. The Court in
this case noted that the evidence could have been
destroyed since the blood-alcohol concentration is
diminished in time, and that the officer did not have
time to obtain a warrant. Moreover, it was found that a
physician at a hospital performed the extraction of
blood in a reasonable manner.
Defendants often try to conceal blood alcohol test
results that are taken at a medical facility by claiming
such information is protected by the physician-patient
privilege as it is described in Wis. Stats.
§905.04. Although Wis. Stats.
§905.04(4)(f) explicitly states that there is no
privilege concerning the results of chemical tests for
intoxication, there remains room for debate regarding
whether the purpose of the tests was strictly to
determine the presence of alcohol or for another medical
reason.
In some cases, blood tests are administered at a
hospital during the normal course of treatment for
injuries sustained by the accused. The results of these
procedures can reveal alcohol concentration, which is
why defending counsel will try to use the
physician-patient privilege to hide the results.
However, Ranft v. Lyons, 163 Wis.2d 282, 471 N.W.2d 254
(Ct. App. 1991) held that the physician-patient
privilege did not prevent a party from having access to
medical records relating to the adverse party motorist’s
use or abuse of alcohol when such information or
physical condition of the party is “in issue.” In this
case, a pedestrian was struck by a drunk driver and
requested the medical records of the defendant to
determine his blood-alcohol content. The court ruled
that the physical condition of the defendant became “in
issue” when his ability to operate the vehicle became
part of his defense. This court also ordered that the
plaintiff’s request that the defendant undergo a
physical examination by a preferred physician under Wis.
Stats.
§804.10 be granted. This follows the rule’s
requirement that just cause be shown, which here meant
that there was no other means of obtaining the desired
information.
There are other cases that have supported this decision.
The Supreme Court in City of Muskego v. Godec, 167
Wis.2d 536, 482 N.W.2d 79 (1992) held that blood alcohol
testing of a suspected drunk driver for diagnostic
purposes is admissible in a prosecution for an
alcohol-related charge. This ruling was reiterated
further by the Supreme Court in State v. Jenkins, 80
Wis.2d 426, 259 N.W.2d 109 (1997). Here the defendant
underwent a blood test, before being arrested, solely
for diagnostic purposes by a medical physician, after an
accident involving a homicide. The Court overruled the
violation of the Fourth Amendment objection brought by
the defense, on grounds that the defendant was not under
arrest at the time of the test. The physician-patient
privilege objection was also defeated, because the Court
ruled that pursuant to Wis. Stats. §905.04(4)(d), no
privilege is allowed in trials for homicide when the
disclosure relates directly to the facts or
circumstances of the homicide. Intoxication was
definitely an important factor to consider in connection
with the homicide and justified the admission of the
test results.
V.
Criminal Penalties for Drunk Driving
As mentioned above, the prohibited alcohol concentration
is .08 for the first offense. The DOT has a
chart estimating how many drinks it takes based on a
person’s weight to reach the prohibited level. A first
operating while intoxicated (OWI) offense includes its
share of penalties and fines. A first time offender will
have his or her driver’s license suspended for at least
6 months. He or she can also be fined between $150.00
and $300.00. Additional estimated fines for first
offenses include: $50.00 towing fee; $10.00 per day
impoundment cost for the vehicle; $250.00 driver
improvement surcharge; $140.00 alcohol assessment;
$40.00 occupational license fee; $50.00 reinstatement
license fee; $2,050 additional annual insurance premium
costs; and $2,000 in attorney fees. Moreover, an OWI
conviction will result in six demerit points against a
driver’s license, and the vehicle can be subject to
seizure by the court.
Subsequent offenses are even more severe and costly.
Fines can range from $300.00 to $2,000.00, and the
offender can face up to one year in jail. Second
offenses result in a mandatory license revocation for at
least one year. Wis. Stats.
§343.31(3)(bm)3. A third offense will cause
suspension of at least two years. Wis. Stats.
§343.31(3)(bm)4. All OWI records are kept for 10
years by the Department of Transportation in order to
account for previous offenses. The DOT provides a
handy
summary of penalties on its web site.
Governor James Doyle signed several new laws that
provide for tougher penalties on repeat drunk drivers.
The new laws reduce the legal BAC from .01 to .08 for
first time offenders, and to .02 for persons with three
or more previous offenses. Fines will double, triple, or
quadruple in correlation with higher BAC readings. The
new laws also grant judges the authority to order
ignition interlock devices for vehicles of repeat
offenders. These devices prevent a person from starting
the engine without first passing a breath-alcohol test.
Another penalty brought under criminal proceedings is
restitution, pursuant to Wis. Stats. §973.20. The court
in State v. Walters, 224 Wis.2d 897, 591 N.W.2d 874
(1999), explained restitution as follows:
[R]estitution
serves the purposes of punishment and rehabilitation of
the defendant, while seeking to make the victim of
criminal acts whole in regard to the special damages
sustained.
224 Wis.2d
at 904.
The court also noted that the amount of restitution
should be substantiated by the evidence, and be exempt
from such damages as pain and suffering. However, a
restitution order does not limit or impair the right of
a victim to sue for civil damages. Id. at 906. The issue
before this court was whether a judgment in civil court
would act as a credit against an order of restitution.
It was ruled that in a situation such as this, where the
plaintiff settled with the adverse insurer prior to the
order of restitution, the settlement did not bar
restitution because restitution is not a claim belonging
to the victim. Restitution is a remedy of criminal
court, and is not subject to negotiations brought by the
plaintiff.
All criminal lawsuits are brought by the state through
the district attorney. These lawsuits hold no direct
value for an injured party, other than the emotional or
psychological relief of witnessing a sentence, fine, or
suspension. A victim is not allowed to hire an attorney
for criminal prosecution, and has no control over the
outcome of such.
VI.
Civil Lawsuits for Drunk Driving Accidents
Unfortunately, the only remedy for a victim or a
victim’s family is financial compensation accorded
through a civil lawsuit. It is a common misconception
that a plaintiff victim who was injured by drunk driver
can sue the offender in criminal court, and guarantee
that the offender is sentenced or fined. Although this
may be the only resolution desired by the victim, it is
not one that can be controlled or even pursued by the
injured party. The notion that money will somehow
compensate for the permanent injury or loss of a family
member is inconceivable to many, yet it continues to be
the only feasible alternative available.
Plaintiffs to a civil lawsuit can sue for compensatory
and punitive damages. See
Strenke v. Hogner, 2005 WI 25, 279 Wis. 2d 52, 694
N.W.2d 296 (2005)(holding that a drunk driver may be
liable for punitive damages if he acts with a purpose to
disregard the plaintiff’s rights, or is substantially
certain such rights will be disregarded, and such
actions need not be directed at the specific plaintiff;
the court upheld on remand a punitive damage award of
$225,000, despite the compensatory damages award only
being $2,000). Compensatory damages are usually
mitigated to pecuniary losses, including total medical
expenses incurred, lost wages, and the loss of future
earnings or earning capacity. However, compensatory
damages can also include an award for pain, suffering,
mental anguish, permanent disability, and loss of
society and companionship by a spouse, child, or parent
resulting from the accident. These damages are usually
covered by insurance, assuming some insurance coverage
is available. Punitive damages are seldom covered by
insurance, which, when substantial, can lead to the
garnishing of wages or the acquiring of personal assets
or income.
Victims of certain drunk driving accidents are entitled
to recover money under the Crime Victims Compensation
Act in Wisconsin, Chapter 940.
§ 949.06(2), allows up to $40,000 to be paid to
victims of crimes, including some drunk driving crimes.
Wis. Stats.
§940.25 defines an injury by the intoxicated use of
a motor vehicle as a Class D felony. Injury, in this
context, means great bodily harm. Wis. Stats.
§949.03 gives the department of justice the
authority to order an award for personal injury or death
resulting from the intoxicated use of a vehicle. The
department has a subrogated lien against any civil
judgment awarded to the victim.
If the drunk driver has liability insurance sufficient
to cover the total amount of damages, then the
defendant’s insurance company will pay. In situations
where the drunk driver has no insurance, or the victim’s
damages exceed the amount of insurance coverage
available, the plaintiff can usually recover under his
or her own uninsured (UM) or underinsured (UIM) motorist
policy. However, any judgment over and above the total
amount of insurance coverage available from all insurers
will subject the defendant’s personal income and assets
to seizure.
For example, assume the judge approves a verdict of
$100,000.00, 50% of which consists of compensatory
damages covered by the insurance policies involved. If
the defendant has the minimum $25,000.00 liability
coverage, and there is another $25,000.00 of UIM
coverage available, the combined total only covers half
of the awarded judgment. Any additional recovery would
have to come from the drunk driver’s personal assets, if
any. Time and again, a financially unstable defendant
will attempt to file bankruptcy to wipe out all debts
and prove his or her lack of net worth. However, the
bankruptcy code,
11 U.S.C. §523(a)(9), explicitly exempts from
discharge debts arising out of the intoxicated use of a
motor vehicle. In these situations, the court can permit
the plaintiff to garnish a percentage of the defendant’s
wages until the total judgment is recovered.
VII.
Other Sources of Compensation
There are several alternative sources of compensation
available to victims of drunk driving accidents. Some
legal theories include negligent entrustment, Dram Shop
laws, vicarious liability, liability of suppliers to
underage drinkers, and social host liability. All of
these theories are founded in suing a potentially liable
third party.
Negligent entrustment is a term used to impose liability
on another party, usually in hopes of introducing
another source of compensation. This theory would work
in a situation where one person gives permission to an
intoxicated person to drive that person’s vehicle. This
entrustment is only negligent if the person knew, or
ought to have known the other was intoxicated and unfit
to drive. In Iaquinta v. Allstate Ins. Co., 180 Wis. 2d
661, 510 N.W.2d 715 (Ct. App. 1994), the issue was
whether the Wisconsin omnibus statute required Allstate
to provide full and separate coverage to both the
negligent entruster-owner of the vehicle and a negligent
entrustee-driver. The negligent entruster had allowed a
drunk driver to operate her vehicle. The negligent
entruster was a passenger at the time of the accident.
The Iaquinta court, in finding that two separate
occurrences triggered the insurer’s liability for the
policy limits twice, stated as follows:
Because
negligent entrustment arises out of an act of negligence
that is separate from the negligence of the entrustee,
and does not arise vicariously or through imputation of
negligence, we conclude that both the negligent
entruster and the entrustee are actively negligent.
Thus, our rationale in Miller [v. Amendson] controls the
outcome of this case; Allstate must provide coverage, up
to the stated limits, to both Rasmussen [the driver] and
Monroe [the entruster].
510 N.W.2d
at 718.
In Haislip v. Southern Heritage Ins. Co., 254 Va. 265,
492 S.E. 2d 135 (1997), an identical issue was decided
by the Supreme Court of Virginia. A party injured in a
motor vehicle accident sued both the driver and a
negligent entruster, seeking the policy limits of
$25,000.00 against each. The court held that Section
38.2-2204 of the Virginia statutes required an insurance
company to provide full and separate coverage to its
named insured, who was guilty of negligent entrustment,
even though the insurer had already paid the insurance
policy limits on behalf of a permissive user who had
negligently operated the motor vehicle.
In some states, such as Illinois and Minnesota,
plaintiffs can benefit from the “Dram Shop” laws. These
laws allow plaintiffs to sue a restaurant, tavern, or
liquor store for the negligent sale of alcohol to a
person who later causes injury while intoxicated.
Therefore, any victim of the intoxicated use of a motor
vehicle has standing to sue not only the driver and his
or her insurance, but also the establishment where the
liquor was illegally sold to either an underage or
intoxicated person. However, Wisconsin is one state that
has not enacted the Dram Shop laws.
In Wisconsin, it is illegal to sell, dispense, give
away, or procure alcohol to an underage person or to an
intoxicated person. These laws are Wis. Stats.
§125.07(1) and (2), respectively. Wis. Stats.
§ 125.07(1)(a)3 goes one step further, and
specifically states as follows:
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.
Most states maintain similar laws. These statutes impose
liability upon a social host who sells, dispenses, or
procures alcohol to an underage or intoxicated person.
The only exemptions from this statute are listed under
Wis. Stats.
§125.035. This statute says that civil liability
will not be imposed on the provider of alcohol to an
underage drinker, only if all of the following occur:
(a) the underage person gave false representation with
documentation that he or she was of age; (b) that there
was good faith reliance on the person’s representation;
and (c) that an ordinary and prudent person would
believe he or she was of legal age.
In the Supreme Court case,
Miller v. Thomack, 210 Wis.2d 650, 563 N.W.2d 891
(1997), the Court ruled that even trivial money
contributions to a collection fall within the definition
of Wis. Stats.
§125.07 and
125.035, if the purpose of the collection is to
purchase alcohol for underage drinkers. In this case,
several people contributed to the purchase of alcohol,
which was eventually consumed at a beach. Some of the
consumers at the beach were underage. In the early
morning, Thomack, a minor, was involved in a motor
vehicle accident while still intoxicated from the beer.
The passenger in his vehicle was injured and sued
Thomack and those who had contributed to the purchase of
the beer. The issue before the Court was to rule whether
such contributions, regardless of how menial, were such
that would fall within the definition of the statute.
Specifically, were such contributions within the meaning
of the word “procuring,” as used by Wis. Stats.
§125.07. The Court defined the word “procuring” to
mean “having the intent of bringing about.” 210 Wis.2d
at 667. It was then concluded as follows:
[A] person
who contributes money with the intent of bringing about
the purchase of alcohol beverages for consumption by an
underage person whom the person knows, or should know,
is under the legal drinking age, procures alcohol
beverages for the underage person under the statutes.
Id. at
668.
However, in
Anderson v. American Family Mut. Ins. Co., 259 Wis.
2d 413, 655 N.W.2d 531 (Ct. App. 2002), the court held
liable an adult procurer of alcohol to an underage third
party who died from acute alcohol intoxication. A
mother had provided her underage son with a bottle of
Vodka, which the son later shared with the underage
plaintiff. The court held that the plaintiff was
an injured third party, under the exception to immunity
statute, Wis. Stats. § 125.035(4)(b), and therefore, the
mother was not immune from liability. The court
noted that the plaintiff’s own voluntary consumption of
alcohol would bear upon his contributory negligence, but
did not affect his status as an injured third party to
the mother’s provision of alcohol to her underage son.
The court distinguished Kwiatkowski v. Capitol Indemnity
Corp., 157 Wis. 2d 768, 461 N.W.2d 150 (Ct. App. 1990),
on the facts, explaining that the injured plaintiff in
that case was a participant in the provision of alcohol,
in that he received the alcohol directly from the tavern
he subsequently sued, and thus could not claim
third-party status under the statute.
Although Wisconsin does not have specific dram shop laws
holding liquor vendors liable for the tortious acts of
all intoxicated purchasers, there is case law imposing
liability for the illegal sale of alcohol to underage
drinkers. Sorensen v. Jarvis, 119 Wis.2d 627, 350 N.W.2d
108 (1984), is the key case on this issue. The
undisputed facts involve the sale of alcohol to an
underage teenager, who later that evening failed to obey
a stop sign and violently collided with another vehicle,
killing a married couple and injuring their two
children. The two minor children commenced action
against the underage driver and the liquor dealer. The
issue before the Supreme Court was whether under common
law, an injured third party could bring a negligence
action against the liquor dealer, for selling to an
underage person, whom the seller knew or should have
known was a minor and whose consumption of the alcohol
proximately caused the accident. After much deliberation
over the common law rule that the cause of the accident
had traditionally been attributed to the conduct of the
consumer of the alcohol, and not to the supplier, the
Court stated as follows:
Because the legislature, for a reason that is unknown,
has failed to act to impose tort liability upon a person
who illegally sells intoxicating beverages does not
preclude this court from acting. This court is not
constrained by the constitution nor by any manifestation
of the legislative will from imposing liability upon a
liquor vendor who illegally sells alcoholic beverages.
119 Wis.2d
at 635.
The Court eventually decided to change the common law
rule and to impose liability on a liquor vendor who
illegally sells to a minor. The Court noted that such
conduct must be negligent when there is sufficient
evidence as follows:
[T]he sale
of the liquor must have been a cause of the eventual
injury to a third party. There must be proof of the
consumption of the alcoholic beverage by the minor
driver, proof that he was intoxicated or his driving
ability was impaired by the consumption of alcohol, and
that such impairment caused by the consumption of
alcohol was a cause of the accident.
Id. at
645.
The Court also ruled that when negligence is established
on the part of the supplier of alcohol, the rules of
comparative negligence will apply to determine the
proportion of negligence attributed to the seller and to
the conduct of the defendant. Id. at 646.
Social host liability is now considered under the same
rules and context of law as with licensed liquor
vendors. The Supreme Court in Koback v. Crook, 123
Wis.2d 259, 366 N.W.2d 857 (1985), established this
rule. The facts of this case involve a minor, Crook, who
after becoming intoxicated at a party, drove his
motorcycle with Koback as a passenger and struck a
parked car, severely injuring Koback. Koback brought
action against Crook and the Brooks family, who were the
social hosts of the party that served alcohol beverages
to Crook. The issue presented to the Court was whether
Koback had a cause of action against the Brooks family,
who served alcohol to Crook, and knew or should have
known that he was underage, and knew or should have
known that he would drive, and when Crook’s intoxication
was a cause of the injury to Koback. The Court, looking
to Sorensen, decided as follows:
We agree that the Sorensen rationale is appropriately
applied to the non-commercial vendor, the negligent
social host, and may furnish a basis for liability. We
need not go beyond Sorensen, however, for here, as in
Sorensen, it is negligence per se to furnish liquor to a
minor.
123 Wis.2d
at 265, 266.
The Court
went on to explain the relationship between social host
liability and commercial supplier liability as follows:
We see no fundamental distinction between the basis of
liability found to exist in Sorensen and the basis for
the liability which may exist here if negligence is
proved. In Sorensen, the negligence was per se because
of the violation of a specific liquor control
regulation. In the instant case, we predicate the
negligence upon the analogous statute.
Id. at
274.
It continues to be the responsibility of the hosts of
social gatherings to give a good faith effort to prevent
guests from driving drunk. The Supreme Court addressed
the importance of the imposition of liability on social
hosts in Koback, as follows:
We need only to look to the consequences of the alleged
negligence by the host in the instant case - a young
woman physically, emotionally, and mentally crippled, a
consequence that all too often is the result of
uncontrolled furnishing of alcoholic beverages, whether
at private affairs or in commercial establishments. To
have “carefree” social affairs where the host does not
exercise care is to invite injury, suffering, and death,
and, as a matter of social policy, liability for the
consequences.
Id. at
276.
These cases, statutes, and legal theories are important
to understand when dealing with a drunk driving case,
especially when the defendant driver has insufficient
income, assets, or insurance coverage. Impleading a
third party will bring in another potential source of
compensation, which often remains the only available
remedy to such unfortunate tragedies.
For more
information on drunk driving, click the following links:
National
Commission Against Drunk Driving
AAA Foundation for
Traffic Safety
Wisconsin
Department of Transportation
Wisconsin Statutes Search