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Daniels v. Carpenter1/28/2003
easonable risk of harm by furnishing alcohol to a person under 19 who was noticeably intoxicated and who these defendants knew would soon be driving his car.*fn12
[ ] It should be recalled that, in Parsons, 480 P.2d at 397, this Court stated that there was no common law cause of action against a liquor vendor for negligence because the consumption, rather than the sale, of the alcohol was the proximate cause of any harm to third parties. *fn13 With the coming of comparative negligence, however, some courts see this as a question for the jury:
We hold that, where there is sufficient proof at trial, a social host who negligently serves or furnishes intoxicating beverages to a minor guest, and the intoxicants so furnished cause the minor to be intoxicated or cause the minor's driving ability to be impaired, shall be liable to third persons in the proportion that the negligence in furnishing the beverage to the minor was a substantial factor in causing the accident or injuries, as may be determined under the rules of comparative negligence. Koback v. Crook, 123 Wis.2d 259, 366 N.W.2d 857, 865 (1985). *fn14
The key element in this analysis of causation is foreseeability.
We turn now to the question of proximate cause. Under many circumstances the act which is the proximate cause of the damage resulting from a breach of duty relating to alcohol is the act of the consumer of the alcohol. Under such circumstances, the consumer is solely liable because the act of furnishing the alcohol is too remote to be the proximate cause of the negligence of the consumer. . . . That is to say, the subsequent act of the consumer is not foreseeable to the provider, or the consumption of an excessive amount of alcohol is the intervening (unforeseeable) cause of the damage.
However, where one provides alcohol to a noticeably intoxicated 17-year-old knowing that he will soon be driving his car, it is foreseeable to the provider that the consumer will drive while intoxicated and a jury would be authorized to find that it is foreseeable to the provider that the intoxicated driver may injure someone. That is to say, a jury would be authorized to find that providing alcohol to a noticeably intoxicated 17-year-old automobile driver was one of the proximate causes of the negligence of the driver and of the injuries to the deceased. Sutter, 327 S.E.2d at 719 (emphasis in original and footnote omitted).
Furthermore, for such a duty to arise, the foreseeable harm need not be known with specificity:
"'. . . The duty of any person is the obligation of due care to refrain from any act which will cause foreseeable harm to others even though the nature of that harm and the identity of the harmed person or harmed interest is unknown at the time of the act. . . .
"'A defendant's duty is established when it can be said that it was foreseeable that his act or omission to act may cause harm to someone. A party is negligent when he commits an act when some harm to someone is foreseeable. Once negligence is established, the defendant is liable for unforeseeable consequences as well as foreseeable ones. In addition, he is liable to unforeseeable plaintiffs.'" Koback, 366 N.W.2d at 863 (quoting Olsen v. Copeland, 90 Wis.2d 483, 280 N.W.2d 178, 184 (1979) (Day, J., dissenting)).
[ ] The sampling of opinions cited herein reveals the extent to which courts have gone to establish liability on the part of social hosts for harm caused by their intoxicated guests. Premises liability, parental liability, respondeat superior, agency, special relationships, gratuitous undertaking, and common law negligence--these theories have all been advanced to provide the underpinnings for such a
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