125.035 Civil liability exemption: furnishing alcohol beverages.

(1) In this section, “person" has the meaning given in s. 990.01 (26).

(2) 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.

(3) Subsection (2) does not apply if the person procuring, selling, dispensing or giving away alcohol beverages causes their consumption by force or by representing that the beverages contain no alcohol.

(4)

(a) In this subsection, “provider" means a person, including a licensee or permittee, who procures alcohol beverages for or sells, dispenses or gives away alcohol beverages to an underage person in violation of s. 125.07 (1) (a).

(b) Subsection (2) does not apply if the provider knew or should have known that the underage person was under the legal drinking age and if the alcohol beverages provided to the underage person were a substantial factor in causing injury to a 3rd party. In determining whether a provider knew or should have known that the underage person was under the legal drinking age, all relevant circumstances surrounding the procuring, selling, dispensing or giving away of the alcohol beverages may be considered, including any circumstance under subds. 1. to 4. In addition, sub. (2) does apply if all of the following occur:

1. The underage person falsely represents that he or she has attained the legal drinking age.

2. The underage person supports the representation with documentation that he or she has attained the legal drinking age.

3. The alcohol beverages are provided in good faith reliance on the underage person's representation that he or she has attained the legal drinking age.

4. The appearance of the underage person is such that an ordinary and prudent person would believe that he or she had attained the legal drinking age.

(5) Subsection (2) does not apply to civil forfeiture actions for violation of any provision of this chapter or any local ordinance in conformity with any provision of this chapter.

History: 1985 a. 47.

Whether an alleged activity arising out of the act of procuring alcohol is a tort itself, a conspiracy to commit a tort, or aiding and abetting a tort, this section provides immunity. Greene v. Farnsworth, 188 Wis. 2d 365, 525 N.W.2d 107 (Ct. App. 1994).

The distinction that this statute draws between providers of alcohol to underage and other drinkers does not violate the constitutional guarantees of equal protection. Doering v. WEA Ins. Group, 193 Wis. 2d 118, 532 N.W.2d 432 (1995).

A person who provides alcohol to an underage person, when the alcohol is a substantial factor in causing injury to a third party, is not immune from liability in a suit by that third party solely because that third party, also underage, illegally consumed alcohol. Miller v. Thomack, 204 Wis. 2d 242, 555 N.W.2d 130 (Ct. App. 1996), 95-1684.

An individual who provides alcohol to an underage person that is a substantial factor in causing an accident that ultimately injures the individual cannot be a third party under sub. (4) (b) and cannot take advantage of the exception to immunity for providers of alcohol in order to pursue an action against other providers. Meier v. Champ's Sport Bar & Grill, Inc. 2001 WI 20, 241 Wis. 2d 605, 623 N.W.2d 94, 00-0589.

A person who agreed to be a designated driver, freeing a bartender to serve a possibly intoxicated person more alcohol, brought about the acquisition of the alcohol, “procuring" it for purposes of sub. (2), but was immune from liability when he later did not provide a ride and the intoxicated person drove and caused a fatal collision. Stephenson v. Universal Metrics, Inc. 2002 WI 30, 251 Wis. 2d 171, 641 N.W.2d 158, 00-1397.

If an injured claimant is a 3rd party to the transaction by which the defendant provided alcohol to an underage person, and the alcohol was a substantial factor in causing the 3rd-party claimant's injury, the exception to immunity under sub. (4) (b) applies and the defendant may be liable. A 3rd person's contributory liability for providing alcohol to himself or herself does not affect the immunity determination, although the injured person's contributory fault may bear upon a defendant's ultimate liability. Anderson v. American Family Mutual Insurance Company, 2003 WI 148, 267 Wis. 2d 121, 671 N.W.2d 651, 02-0980. See also Mueller v. McMillian Warner Insurance Company, 2005 WI App 210, 287 Wis. 2d 154, 704 N.W.2d 613, 05-0121.

Affirmed on other grounds. 2006 WI 54, 290 Wis. 2d 571, 714 N.W.2d 183, 05-0121.

Liquor Vendors and Social Hosts: Are They Immune From Civil Liability? Chapin. Wis. Law. Dec. 1992.

Liquor Vendors and Social Hosts: Are They Still Immune from Serving Adults? Chapin. Wis. Law. Dec. 1995.

Another Look at Dram Shop Liability. Emerson & Stroebel. Wis. Law. Aug. 2000.

Social Host Liability for Underage Drinking. Hinkston. Wis. Law. June 2008.