Brief the Nichols v. Niesen case found on pages 141-144 of your LBS text.

Use the IRAC method or the modified version of IRAC discussed in the lectures to brief your case.

Chapter Four The American Legal System 143 If one or more of the public policy "factors so dictates, the court If the Nichols' claim were allowed to proceed, the expansion of may refuse to impose liability in a case liability might also include liability for parents who allegedly should The first public policy factor upon which recovery against a neg- have known that drinking would occur on their property while they ligent tortfeasor may be denied is when "the injury is too remote were absent, based on the proclivities of teenagers in a given area from the negligence. .. ." to consume alcohol. Imposing such liability would be only a short The second public policy factor upon which recovery against a step away from imposing strict liability upon property owners for negligent tortfeasor may be denied is when "the injury is too wholly any underage drinking that occurs on property under their control. out of proportion to the tortfeasor's culpability. . . ." As Judge David G. Deininger stated in his dissent in the court of The third public policy factor upon which recovery against a appeals, "if liability is permitted to extend to parents and property negligent tortfeasor may be denied is when "in retrospect it ap- owners who fail to 'supervise and monitor the activities on their pears too highly extraordinary that the negligence should have property," as the Nichols contend of the Niesens, "then parents or brought about the harm. . . ." other owners of property occupied by sixteen- to twenty-year-olds" The fourth public policy factor upon which recovery against a would "be well-advised to never leave home, or if they must, to negligent tortfeasor may be denied is when "allowing recovery ensure that all underage persons go elsewhere as well. . . ." As a would place too unreasonable a burden upon the tortfeasor. .. ." result, even assuming that the Nichols had pled a viable claim for The fifth public policy factor upon which recovery against a neg- common-law negligence against the Niesens using the four-factor ligent tortfeasor may be denied is when "allowing recovery would test, we are satisfied that the Nichols' claim should be barred on be too likely to open the way to fraudulent claims. . .." public policy considerations, since allowing recovery here would The sixth, and here perhaps the most significant, public policy have no sensible or just stopping point. factor upon which recovery against a negligent tortfeasor may be denied is when "allowing recovery would have no sensible or just Liability has never been applied to conduct like that of the Nie- stopping point. . . ." sens, and liability has required active, direct and affirmative acts, such as the provision of alcohol. Neither the legislature nor this Here, the Niesens and their insurer argue that there would be court has expanded liability to social hosts who have not provided no sensible or just stopping point if the court of appeals' decision alcohol to minors. The legislature is the appropriate governmental stands. They claim that the decision of the court of appeals would, branch to expand liability if it desires to do so. As a result for the put tort law on the path of strict liability for anyone who owns prop- reasons stated herein, we reverse the court of appeals, and hold erty in Wisconsin, and who knows even scant details of an under- that such an expansion of liability should come from the legislature, age person consuming alcohol on the property under his or her if it is to occur at all control. They argue that the next step, beyond such a proposed expansion in common-law negligence liability, may be to include in the framework of liability not just social hosts but anyone who Questions knows that an underage person was drinking on property that is not even under their control, or to include anyone, not just property 1. Explain the Nichols' legal claim. owners, who knows that any underage individual has had too much 2. a. Who won this case and why? to drink. b. Do you agree with the court's decision and its reasoning? We note that there is no allegation by the Nichols here that the Explain. Niesens knew Carr was intoxicated, impaired, or unable to safely 3. LaMarre rode with his wife and their neighbors, the Plummers, drive a vehicle. The Niesens argue that they could not have fore- in the Plummers' modified golf cart to have dinner at the nearby seen that people coming onto their property, who already had bro- Fort Mitchell Country Club. As per Mr. Plummer's request, coun- ken the law before they arrived, would break the law again after try club staff retrieved and chilled two bottles of champagne leaving. The Niesens could not reasonably have foreseen that an from Plummer's locker. During dinner, the couples consumed underage guest who they were not specifically aware was intoxi- cated, and who arrived at the premises under their control with al- one of the champagne bottles as well as a bottle of red wine cohol purchased elsewhere, would cause foreseeable harm to that Plummer retrieved from his locker. The two couples opened others the second bottle of champagne in the golf cart after dinner. We agree with the Niesens . . . that allowing recovery here After making a stop on the way home at another neighbor's would have no sensible or just stopping point. house, Mr. Plummer accelerated the golf cart while Mr. LaMarre was trying to take his seat. LaMarre fell and sustained serious injuries. The LaMarres filed a lawsuit against the Plummers and142 Unit Two Introduction to Law foreseeable that permitting underage high school students to ille- II [OMITTED-ED.] gally drink alcohol on the Niesens' property would result in harm to some person or something," and because the Nichols had ade- E On review, the Nichols claim that the Niesens' conduct was negli- quately "alleged the Niesens had a duty to refrain from knowingly gent, and that it was reasonably foreseeable that someone drinking permitting underage high school students from engaging in illegal on the Niesens' property would cause an accident. ... alcohol consumption on their property." [The Niesens argue that knowledge of someone drinking on [The court of appeals also determined that the Nichols had ap- one's premises does not create a foreseeable risk of harm tooth- propriately alleged the second factor of an actionable common-law ers, and that public policy issues preclude liability in cases such as negligence claim, which is that the Niesens had breached a duty of this one. The Niesens argue that the court of appeals created a new care that they owed to the Nichols. The court stated, "Because the basis of liability for social hosts in Wisconsin. They argue that social Nichols' complaint alleges the Niesens knowingly permitted and hosts have never been held liable in Wisconsin solely because they failed to supervise underage alcohol consumption on their property were aware that an underage person had been consuming alcohol it alleges 'a breach of their duty to exercise ordinary care." .. To allow the court of appeals' decision to stand would mean that li- The court also held that the Nichols had established the third ability would apply to any social hosts who knew of underage drink- factor of a common-law negligence claim by showing "a causal ing, regardless of where the alcohol was possessed or consumed, connection between the defendant's breach of the duty of care and which would lead to liability with no sensible stopping point. The the plaintiff's injury. .. ." That court stated, "The Nichols have suffir Niesens argue that they had limited involvement with the party out- ciently alleged that the Niesens' permitting underage alcohol con- side of their alleged knowledge of underage drinking at the party, sumption on their property was a substantial factor in causing the and, as a result, they should not be held liable. To hold social hosts automobile accident that resulted in their injuries.' liable in such circumstances would place an unreasonable burden The court of appeals further held that the Nichols had appropri- on social hosts. The Niesens argue that a reasonable person would ately alleged the fourth factor of a common-law negligence claim, not foresee that knowledge of some unidentified underage person that they had suffered an actual loss or damage that resulted from drinking would create an unreasonable risk to others. Rather, a rea- the Niesens' breach. . .. sonable person would conclude that any such risk was created by For purposes of our public policy analysis, we will assume, with- the provider of the alcohol and the underage drinker. The Niesens out deciding, that the court of appeals was correct in holding that contend that, because they played no role in procuring or furnish- ing the alcohol, a negligence analysis should not be applied to their the Nichols had stated a common-law negligence claim. [Elven if a actions in this matter. Finally, the Niesens argue that the legislature, plaintiff adequately establishes all four elements of a common-law not the judiciary, is the branch of Wisconsin's government that negligence claim, Wisconsin courts have "reserved the right to should impose any new liability on social hosts who do not provide deny the existence of a negligence claim based on public policy alcoholic beverages to underage guests reasons. .. ." As a result, "even if all the elements for a claim of Whether the Nichols' complaint states a claim for common-law negligence are proved, or liability for negligent conduct is assumed by the court, the court nonetheless may preclude liability based on O negligence depends on whether they sufficiently pled facts, which if proven true, would establish all four required elements of an ac- public policy factors." This is so because "negligence and liability tionable negligence claim. First, the plaintiff must establish "the are distinct concepts." existence of a duty of care on the part of the defendant. . . ." Sec- In turning to our analysis of the public policy factors that bear on ond, the plaintiff must establish that the defendant breached that the Nichols' common-law negligence claim against the Niesens, it is duty of care. Third, the plaintiff must establish "a causal connection instructive to note what is not alleged by the Nichols. The Nichols do between the defendant's breach of the duty of care and the plain- not allege that the Niesens provided alcohol to Carr, that the Niesens tiff's injury. .. ." Fourth, the plaintiff must establish that he or she were aware that Carr (specifically) was consuming alcoholic bever- suffered an actual loss or damage that resulted from the breach. ages, that the Niesens knew or should have known that Carr was in- toxicated, or that the Niesens knew or should have known that Car was not able to drive her motor vehicle safely at the time of the acci- The court of appeals framed the issue for the first element of dent. We note that there also is no allegation by the Nichols that the the test for common-law negligence as "whether the Niesens owed Niesens aided, agreed to assist, or attempted to aid Carr or any other a duty to refrain from knowingly permitting minors to consume alco person in the procurement or consumption of alcohol on premises hol on their property, thus enabling them, including Carr, to drive under their control. There also are no allegations that the Niesens away from their property while intoxicated." As a result, the court knew in advance that any underage individuals would be drinking. held that the first factor had been met because "it was reasonablyBriefing the Case Most students find the preparation of case briefs (outlines or digests) to be helpful in mas- LO 4-4 tering the law. A brief should evolve into the form that best suits the individual student's Differentiate the needs. The following approach should be a useful starting point: elements of a case brief. Identify the plaintiff and the defendant at the trial level. At the appeals level, 1. Parties identify the appellant (the party bringing the appeal; Nichols, in this in- stance) and the appellee (the other party on appeal; Niesen, in this instance). 2. Facts Summarize only those facts critical to the outcome of the case. 3. Procedure How did the case reach this court? Who won in the lower court(s)? 4. Issue Note the central question or questions on which the case turns. 5. Holding How did the court resolve the issue(s)? Who won? 6. Reasoning Explain the logic that supported the court's decision. Nichols v. Niesen LEGAL BRIEFCASE 746 N.W.2d 220 (Wis. 2008) Justice N. Patrick Crooks and control the vehicle she was operating, due in part to the volun- tary ingestion by her of intoxicating beverages." As a result of the The court of appeals allowed the claim of Shannon, Lee, Brooke, and accident, Shannon Nichols "suffered very severe personal injuries," Brittney Nichols (the Nichols) to proceed against the Niesens for and Brittney, Brooke, and Lee Nichols "suffered injuries requiring common-law negligence. The Nichols claimed that the Niesens were medical care and treatment." social hosts who did not provide any alcoholic beverages to under- On the night of June 4, 2004, and into the early morning of age guests, but allegedly were aware that minors were on their June 5, 2004, the Nichols alleged that "a large gathering of under- property consuming alcoholic beverages. After leaving the Niesens' age high school students" congregated and consumed alcohol at premises, one of these guests allegedly caused injuries while driving the premises controlled by the Niesens. .. . [The Nichols alleged intoxicated. The circuit court had granted the Niesens' . . . motion to that "the Niesens were aware that the minors on their property dismiss the Nichols' complaint, after concluding that the complaint were consuming alcohol." The Nichols did not allege that the Nie failed to state a claim in common-law negligence. The primary issue sens knew, in advance, that the students would be consuming alco- upon review is whether a claim for common-law negligence should hol. The Nichols contended that the Niesens "had a duty to be permitted against social hosts under these circumstances. supervise and monitor the activities on their property" and that they were negligent because they failed to do so. - The Nichols contended that the consumption of alcohol by Carr On June 5, 2004, the Nichols were in a motor vehicle on County was a substantial factor in causing the accident. Defendant Michael Trunk Highway J in Columbia County, Wisconsin, when that vehicle Shumate (Shumate), "or one or more adult residents of his house- was struck by another motor vehicle, driven by Beth Carr (Carr), hold[,]" not the Niesens, was alleged to have provided the alcohol which had crossed the highway's center line. The Nichols alleged that was consumed by Carr on the Niesens' property. There was no that the accident was caused by Carr's "failure to properly manage allegation that Shumate was at the Niesens' property