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Stephenson v. Universal Metrics3/28/2002
Devine home, Kreuser would have had either to follow Devine around all night, or perhaps have kept Devine confined or tied up somewhere in order to prevent Devine from wandering off without Kreuser's knowledge. For an agreement that can be made, as Kreuser suggests, by a simple nod of the head, this burden is simply too excessive.
. Third, to allow recovery under these circumstances potentially allows the law of negligence to enter a field that has no sensible or just stopping point. As was evident in the present case, it is difficult to determine the point at which the person who agrees to drive actually assumes the duty. Is a nod of the head enough to impose a responsibility to exercise control over the intoxicated person for the rest of the night? Is a wink sufficient?
. What happens if conditions change? Would there ever be circumstances under which someone who agrees to drive for an intoxicated person could back out of such an agreement? What if an emergency arose that required the driver to leave? What if the driver were to get sick? Could a designated driver ever transfer the responsibility? What if the intoxicated person was to become disorderly, or assaulted someone? Could the person who agrees to drive be subject to liability for any of the intoxicated person's other negligent acts?
. There could also be effects on those outside of designated drivers. If the intoxicated person calls a cab and the cab driver is late, prompting the intoxicated person to drive--can the driver be held liable? If a company agrees to help arrange rides home from a company function, can they be held liable? Will finding liability in this case allow liability to be extended to party guests who are faced with allowing a clearly intoxicated person to drive home? If no one steps forward and agrees to drive, can they all be held liable?
. These are only a few examples of the extent to which liability might be carried. If we were to hold Kreuser liable under these circumstances, the possibilities for expanding liability would simply have too much potential to grow out of control, and would also threaten to run counter to the legislative enactments regarding immunity.
. Finally, we give significant weight to the fact that the production, sale, distribution, vending, and consumption of alcoholic beverages are highly regulated by the legislature. See Wis. Stat. §§ 68.02(1)-(2), 68.03(5), 100.30(2)(am)1., 125.01-.70, 134.77, 135.066, 139.01-.26, 167.32(4), 346.93-.935, 350.08, 406.102(3m), 944.36, 947.04 (1999-2000). Since Wisconsin's territorial days, the legislature has been extensively involved in the decision of whom to hold accountable for the negligent actions of an inebriated person. Farmers Mut. Auto. Ins. Co. v. Gast, 17 Wis. 2d 344, 355-63, 117 N.W.2d 347 (1962) (containing an appendix which outlines the history of alcohol liability legislation); see also Sorensen v. Jarvis, 119 Wis. 2d 627, 636-37, 350 N.W.2d 108 (1984). In its current form, this regulation includes the legislature's pronouncement in § 125.035, which generally immunizes from civil liability those who procure, sell, dispense, or give away alcohol. Given this history and the current state of the law, we are reluctant to create liability where the legislature has not expressed that there should be any. We think that it is more appropriate that the legislature decide whether or not someone who agrees to drive an intoxicated person home should be an exception to the legislature's general policy of holding the intoxicated persons themselves liable for injuries they cause.
IV.
. In conclusion, we hold that the framework of Restatement (Second) of Torts § 324A applies to the
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