Nichols v. Progressive Northern Insurance

*45SHIRLEY S. ABRAHAMSON, C.J.

¶ 50. {concurring). I agree with the majority opinion that a claim for common law negligence cannot be maintained in the present case. I agree, however, with the reasoning of the circuit court rather than the reasoning of this court: The decision in the present case rests on legislative policy, not on judicial public policy grounds.1 Although a claim for common law negligence does not require a violation of the statutes, I conclude that Wis. Stat. § 125.07(l)(a)4. should be read as providing a stopping point on the Niesens' liability with respect to underage drinking on their property under the circumstances of the present case.

¶ 51. Wisconsin Stat. § 125.07(1)(a)4. provides that "no adult may intentionally encourage or contribute to a violation of sub. (4)(a) or (b)." When § 125.07(l)(a)4. is read together with (4)(a) and (b), the statute (relevant to the facts of the instant case) declares that no adult may intentionally encourage or contribute to an underage person procuring alcohol beverages from a licensee or permittee or intentionally encourage or contribute to an underage person knowingly possessing or consuming alcohol beverages. Any adult violating this statute may be subject to a civil forfeiture or convicted of a misdemeanor.

¶ 52. The complaint alleges that the Niesens were negligent. It does not allege that the Niesens intentionally encouraged or contributed to an underage person procuring alcohol beverages from a licensee or permit-*46tee or intentionally encouraged or contributed to an underage person knowingly possessing or consuming alcoholic beverages.2

¶ 53. Although the statutes do not bar all negligence causes of action relating to adult behavior, alcohol beverages, and underage persons, Wis. Stat. § 125.07(l)(a)4., in my opinion, provides a "sensible and just stopping point" to the Niesens' liability under the circumstances set forth in the complaint in the instant case relating to underage drinking on the Niesens' property.

¶ 54. I write further to express my reservations about the court of appeals' sketchy analysis of Wis. Stat. § 125.07(l)(a)3. in its decision in the present case and its dismissal of the Niesens' complaint alleging a cause of action under § 125.07(l)(a)3.

¶ 55. The complaint alleges that the Niesens knowingly permitted and failed to prevent the illegal consumption of alcohol beverages by underage persons on premises under their control "contrary to Section 125.07(l)(a)3."

¶ 56. Section 125.07(l)(a)3. prohibits an adult from "knowingly permit[ting] or fail[ing] 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" (emphasis added). The court of appeals concluded that this section does not apply in the present case because "premises" is defined *47in § 125.02 as the area described in a municipal license authorizing the sale of alcohol beverages or in a Department of Revenue permit issued under chapter 125 (the chapter governing alcohol beverages).3 The Niesens' property is not an area described in such a license or permit.

¶ 57. Although the parties do not raise this issue before this court, it is arguable that the word "premises" in Wis. Stat. § 125.07(l)(a)3. is not used, as the court of appeals held, in its defined meaning to be an area described in a municipal license authorizing the sale of alcohol beverages or in a Department of Revenue permit issued under chapter 125. The word "premises" in § 125.07(l)(a)3. is limited to premises owned by an adult or under the adult's control, and the last sentence of § 125.07(l)(a)3. provides as follows: "This subdivision does not apply to alcohol beverages used exclusively as part of a religious service."4

¶ 58. If the word "premises" in Wis. Stat. § 125.07(l)(a)3. means an area described in a municipal license authorizing the sale of alcohol beverages or in a Department of Revenue permit issued under chapter 125, rather than property, as the court of appeals concludes, why would the legislature explicitly prohibit an adult from knowingly permitting or failing to prevent *48the illegal consumption of alcohol beverages by underage persons on premises under the adult's control and also explicitly state that the prohibition does not apply to alcohol beverages used exclusively as part of a religious service? The court of appeals' interpretation of § 125.07(l)(a)3. is puzzling.

¶ 59. Moreover, Wis. Stat. § 125.07(l)(a)3. appears to be the only provision within § 125.07 in which the legislature has used the word "premises" without modifying it. Elsewhere in § 125.07, the legislature denotes licensed or permitted premises.5 If the legislature intended for the word "premises" in § 125.07(l)(a)3. to mean licensed or permitted premises, why wouldn't the legislature have said so as it did throughout the remainder of § 125.07?

¶ 60. When Wis. Stat. § 125.07(l)(a)3. is read in context and in its entirety, the word "premises" in § 125.07(l)(a)3. seems to mean property, not an area described in a municipal license authorizing the sale of alcohol beverages or in a Department of Revenue permit issued under chapter 125. This reading of § 125.07(l)(a)3. gives meaning to all the words of the statute.

*49¶ 61. For the reasons set forth, I concur in the mandate.

¶ 62. I am authorized to state that Justice LOUIS B. BUTLER, JR. joins this opinion.

The complaint alleges that the Niesens were negligent in failing "to take reasonable steps to supervise and monitor the activities on their property, which on information and belief included a large group of minors consuming alcohol. On information and belief the Niesens were aware that the minors on their property were consuming alcohol."

Wisconsin Stat. § 125.02(14m) defines "premises" to mean "the area described in a license or permit." Section 125.02(9) defines "license" to mean "an authorization to sell alcohol beverages issued by a municipal governing body under this chapter." Section 125.02(13) defines "permit" to mean "any permit issued by the [Department of Revenue] under this chapter."

fAccording to the Wisconsin Legislative Reference Bureau's Bill Drafting Manual, § 3.01 at 63 (2007-2008), the word "subdivision" refers to 3. of § 125.07(l)(a).

See Wis. Stat. § 125.07(3)(a) (regulatingunderage persons' right to enter, knowingly attempt to enter, or be on "premises for which a license or permit for the retail sale of alcohol beverages has been issued"); Wis. Stat. § 125.07(3)(b) (specifying a forfeiture penalty for a licensee or permittee who permits an underage person to enter or be on "a licensed premises"); Wis. Stat. § 125.07(4)(a)2. (making it a violation for an underage person to possess or consume alcohol beverages "on licensed premises" unless the underage person is accompanied by a parent, guardian or spouse who is not underage); Wis. Stat. § 125.07(4)(a)3. (making it a violation for an underage person to enter, knowingly attempt to enter "licensed premises" in violation of § 125.07(3)(a)).