Drunk Driver Litigation
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