(dissenting). The majority decision interrupts the evolution of common law liability principles, and increases the risk that parents will believe they can look the other way while their teenage children host drinking parties. Based on the summary judgment submissions, I conclude that negligence in this case is an issue for the jury.
In Antoniewicz v. Reszcynski, 70 Wis. 2d 836, 236 N.W.2d 1 (1975), the supreme court held that "[t]he highest duty is owed to the invitee, that of ordinary care under the circumstances." Id. at 843, 236 N.W.2d at 4. The supreme court acknowledged its departure from settled precedent but explained:
It is the tradition of common-law courts to reflect the spirit of their times and discard legal rules when they serve to impede society rather than to advance it. This principle, which has always been the guide of the courts, was well stated by Chief Justice Winslow ...:
*83"... the conditions and problems surrounding the people, as well as their ideals, are constantly changing. The political or philosophical aphorism of one generation is doubted by the next, and entirely discarded by the third. The race moves forward constantly, and no Canute1 can stay its progress."
Id. at 855, 236 N.W.2d at 10-11 (citations omitted). Thus, the supreme court abolished the long-standing special immunities that had protected property owners from liability for injuries suffered by their guests. Id. at 856-857, 236 N.W.2d at 11.
Ten years later, the supreme court picked up on this very theme in Koback v. Crook, 123 Wis. 2d 259, 366 N.W.2d 857 (1985). Determining the potential liability for injuries suffered in a drunk driving crash resulting from a social host serving alcoholic beverages to the driver who was a minor, Koback traced the common law evolution leading to liability for vendors of alcoholic beverages. Koback, 123 Wis. 2d at 263-264, 366 N.W.2d at 859. In Koback, the supreme court emphasized that, in Sorensen v. Jarvis, 119 Wis. 2d 627, 350 N.W.2d 108 (1984), it had "abrogated the common law non-liability rule in respect to vendors of alcoholic beverages and held that the vendor may be liable to a third party for negligently furnishing alcohol to a minor when the alcohol so supplied is a substantial factor in causing injuries to a third party." Id. at 264, 366 N.W.2d at 859. Notably, the court explained that it "did so by expressly rejecting the outdated common-law notion that it was only the consumption of the alcoholic *84beverages and not the negligent furnishing of them that was the cause of the injury." Id.
Although the supreme court in Koback discussed these common law principles at length, it ultimately decided the case in part, based on the statute prohibiting the serving of intoxicants to minors. Although three justices concurred, because, as they stated, the case was "grounded upon a violation of the statute," they also stated that it may be "that an entirely different question, with very different problems of public policy, is involved in the issue of the liability of a social host to an adult." Koback, 123 Wis. 2d at 277, 366 N.W.2d at 866 (Bablitch, J., concurring). Thus, given that the instant case reaches potentially "different problems of public policy" covered not by statute, but by common law, certification of this case to the supreme court could have been appropriate. Given, however, that the majority has decided the issue as a matter of law and, in doing so, has failed to consider the important public policy considerations that underlie the evolution of the expanding common law liability in this area, I would emphasize where that evolution logically leads.
The majority offers an analysis of Koback that is confused and confusing. Distinguishing Koback, the majority points out that "Ann did not 'serve' alcohol; the party was a 'bring your own beverages' party." Majority op. at 79 n. 2. Indeed! Why should that automatically allow her or her parents to escape liability? According to the summary judgment submissions, approximately thirty guests attended; many brought their own beer; the beer was "pooled" and refrigerated along with beer Ann had purchased; and the guests then could draw from the common pool. Are these circumstances distinguishable from those in Koback! Yes, but if the distinction has any significance at all, it *85is to render the circumstances of the instant case more dangerous. After all, a social host providing and serving alcohol may be able to retain some control over who drinks and how much alcohol the guests consume. A "bring your own beverages" party, however, with open consumption from a common pool, does not allow the social host to exert even that minimal control.
Equally perplexing, the majority distinguishes Koback by pointing out that, in Koback, an adult served alcohol to a child. Here, by contrast, Ann was seventeen; Hitsman and Zelco were adults. So? One would hardly feel more at ease when the social host's duty to exercise ordinary care resides not with an adult, but rather, with a juvenile who has a history of arrests for underage drinking and who opens her home for a drinking party. An adult/child line of demarcation makes utterly no sense under these circumstances. Indeed, our society has said as much by drawing legal lines differently; in Wisconsin adulthood arrives at age eighteen, but legal drinking waits until age twenty-one.
The majority concedes that "Ann had a duty to exercise ordinary care toward the individuals who came into her home with her consent[.]" Majority op. at 78. The majority points out, nevertheless, that "this duty does not necessarily include a duty to protect one guest who voluntary confronts another guest." Id. (emphasis added). Of course, this is so, but at the summary judgment stage it is premature to determine whether the facts necessarily establish that Ann or Ann's parents "exercise[d] ordinary care."
The circumstances of this case may have been every bit as dangerous, and perhaps more dangerous than those presented in Koback. According to the summary judgment submissions, Ann's parents were *86aware of their daughter's underage drinking arrests and possible alcohol problem. According to Ann's deposition, her parents went out of town leaving her alone with no specific rules regarding drinking in the house, and only the instruction, "don't wreck nothing." Thus, we have parents allegedly providing the home in which an unsupervised minor hosts a party with free access to an alcoholic beverage pool.
I am not denying that Zelco and Hitsman may prove to be responsible for what occurred. I am not prepared to say, however, that a teenage social host and his or her parents can never be liable for injuries suffered in the dangerous atmosphere created, at least in part, by their alleged negligence. The majority decision denies the potential for any liability of Ann or her parents, regardless of the facts that might come forward at a trial.
In Koback, the supreme court stated: "What is negligence in most cases presents a jury question. In liquor cases that involve minors the statute supplies the standard of what is negligence, the selling or furnishing of alcoholic beverages — although there may be other acts of negligence that could also lead to liability." Koback, 123 Wis. 2d at 268, 366 N.W.2d at 861 (emphasis added). This case, I believe, presents substantial allegations of "other acts of negligence that could also lead to liability."
The majority also suggests that liability is precluded by § 125.035, STATS. See majority op. at 80 n. 2. The statute, however, is inapplicable (and, indeed, if it were applicable the balance of the majority's decision would have been unnecessary). Section 125.035, in pertinent part, states:
(2) A person is immune from civil liability arising out of the act of procuring alcohol beverages *87for or selling, dispensing or giving away alcohol beverages to another person.
(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(l)(a).
(b) [The immunity in s]ubsection (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....
(Emphasis added.)
Here, the claim is not that the injury arose out of any conduct addressed by the statute. Rather, the plaintiff’s claim is that Ann and her parents negligently provided and allowed for the party setting where injury occurred. Although the involvement of alcohol in this case may have been significant, that does not bring Zelco's claims within the statute. As we explained, § 125.035, STATS., "represents a modification to the common law as previously announced by the supreme court in Sorensen and Koback. Statutes in derogation of the common law are to be strictly construed." Kwiatkowski v. Capitol Indem. Corp., 157 Wis. 2d 768, 776, 461 N.W.2d 150, 153 (Ct. App. 1990).
However, even if this case were to be analyzed under the immunity statute, a jury question would still exist and, therefore, the trial court's grant of summary *88judgment still would have to be reversed. Here, in addition to the other negligence questions that I believe are properly reserved for the jury, the following questions under the statute still would remain for the jury's determination: (1) was Ann, by allowing the consumption of alcohol even under "BYQB" circumstances, a "provider" under the statute?; (2) did Ann know or should she have known that Hitsman was an underage drinker?; (3) did the alcohol beverages prove to be a substantial factor in causing injury to Zelco?2
Do we really want to announce a rule of common law that tells parents and their teenagers that they can never be liable for injuries suffered by guests who confront each other at a drinking party — regardless of whether the drinking party came about because of the negligence of the parents and teenager? I think not. The evolution of expanding common law liability, grounded in sound public policy, would logically allow the potential for liability of both the minor social host *89and his or her parents. Accordingly, I respectfully dissent.
"Legendary Danish king who commands the sea to halt as proof of his power. Possible personification of the sun." 1 DICTIONARY of Mythology, Folklore and Symbols 287 (1962).
The majority's reliance on Kwiatkowski v. Capitol Indemnity Corp., 157 Wis. 2d 768, 461 N.W.2d 150 (Ct. App. 1990), to distinguish the application of the immunity statute in the case before us is also erroneous. In Kwiatkowski, we held that the immunity statute prohibited a minor who became intoxicated, and then was injured after he operated a motor vehicle, from recovering against the "provider" for the minor's own injuries. We construed the statute as allowing a cause of action only as to an injured third party, and rejected the minor's argument that so long as a third party happened to be injured in the accident, the minor would also have a cause of action. Thus, Kwiatkowski does not establish what the majority suggests is an unqualified proposition of law that where the injured third-party/plaintiff has consumed some unspecified quantity of alcohol, there can still be no cause of action against the "provider" where a minor is alleged to have been a substantial factor in causing the third-party/plaintiff s injuries.