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The Ashbrock decision seems inconsistent with the opinion of the Wisconsin Supreme Court in Haynes, which suggests that drunk driving is inherently dangerous and not subject to strict liability. However, Haynes involved a tort claim against manufacturers and distributors of brake systems, not intoxicated drivers. In addition, the tort theory developed in Ashbrock, which encompasses reckless behavior as a category of conduct, is indistinguishable from liability for deliberate wrongdoing: “A person is intentionally… negligent if he or she chooses to engage in conduct or leave the conduct undone such that the actor’s freedom of choice is limited.” WIS. STAT. ANN. sec. 895.52(1). See also Loss, Security, and Custom in Negligence Law: Intentional and Negligent Mis-representation, 9 AM. U. L. REV. 3, 12 (1979) (distinguishing between negligent conduct that involves no choice and intentional conduct that involves no such choice). Thus, as with deliberate wrongdoers, consumers of alcohol have a justifiable expectation of reasonably safe use of their products.
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Finally, we note that it is not clear how a defendant could adequately protect itself against liability for damages caused by its own product. Unlike in strict products liability and implied warranty cases, there is no way for a manufacturer or distributor of alcoholic beverages to guarantee that its products will not cause property damage. See id. at 13-14; see also Sec. of
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