[713 So.2d 1037] Ford, Domnick, Wolf & Lopez-Albear and Sean C. Domnick, Miami; Barbara Green, for appellants.

Diaz & Morel-Saruski and Ana Morel-Saruski, Coral Gables; Hicks & Anderson and Ila J. Klion and Cindy L. Ebenfeld, Miami, for appellee.

Before NESBITT, COPE and LEVY, JJ.

COPE, Judge.

James E. Hawkins, one of the plaintiffs in this medical malpractice action, appeals the entry of summary judgment for the defendant/appellee George R. Pizzaro, M.D. We affirm.

In May 1994, Pizzaro examined Ellen Shaw and took a blood sample to test for hepatitis C. The laboratory results correctly showed that Shaw had tested positive for hepatitis C, but Pizzaro's office improperly advised Shaw that she had tested negative.

Several months later, Shaw met Hawkins and the two eventually married. Thereafter, the couple decided they would like to have a baby, and Shaw was seen by her gynecologist in that regard in May 1995. As a part of the examination, a blood sample was taken and Shaw was again tested for hepatitis C. This time the test was positive. As a consequence, in August 1995, Shaw contacted Pizzaro and asked him to re-examine her test results. Upon further review, Pizzaro discovered that the laboratory had in fact shown a positive test result. Shortly thereafter, James Hawkins also tested positive for hepatitis C.

Shaw and Hawkins filed this action against Pizzaro claiming medical negligence. Their claim was based on the theory that if Pizarro had correctly communicated the diagnosis to Shaw, then Shaw and Hawkins could have taken steps to prevent the transmission of the disease to Hawkins. Pizzaro moved for summary judgment against Hawkins on the ground that Hawkins was unknown to him at the time of his misreading of the test results and was not an identified third party to whom he could be said to owe a duty of care. Pizzaro did not file any affidavits in support of his motion. In opposition, Hawkins filed an affidavit of Lee A. Fisher, M.D., which stated:

It is my opinion, based upon my training and experience, that a physician such as DR. PIZZARO has a continuing duty to inform a patient of proper test results; especially when the test results are positive for a highly contagious disease such as Hepatitis-C. DR. PIZZARO continually breached this duty to inform up to the date that ELLEN HAWKINS learned of the correct test results.

It is further my opinion, based upon my training and experience, that it is foreseeable that a single, attractive, thirty-nine year old woman such as ELLEN HAWKINS would be dating and engaging in sexual relations. It is also foreseeable that ELLEN HAWKINS, unaware that she was positive for Hepatitis-C, would pass the disease on to someone with whom she had sexual relations.

The trial court granted Pizarro's motion and Hawkins has appealed.

We conclude that the summary judgment must be affirmed on authority of Pate v. Threlkel, 661 So.2d 278 (Fla.1995). In Pate, [713 So.2d 1038] the daughter of a woman who had been treated for a genetically transferable disease and who had herself been diagnosed with the disease filed a complaint against the doctors who had treated the mother for failure to advise the mother of the genetic nature of the disease. The daughter claimed that such advice would have prompted the mother to have her children tested, which in turn would have enabled the daughter to have taken preventative action, and that the daughter's condition would have been curable at that time. In that case, the court stated:

Here, the alleged prevailing standard of care was obviously developed for the benefit of the patient's children as well as the patient. We conclude that when the prevailing standard of care creates a duty that is obviously for the benefit of certain identified third parties and the physician knows of the existence of those third parties, then the physician's duty runs to those third parties.

Id. at 282 (emphasis added).

On review of summary judgment, we must view the record in a light most favorable to Hawkins as the nonmoving party. Holl v. Talcott, 191 So.2d 40, 46 (Fla.1966). Viewed in that light, we must read the amended complaint, its attached affidavit, and the affidavit filed in opposition to the summary judgment motion as stating that hepatitis C is a sexually transmitted disease, that it was so transmitted in this case, and that the duty of a doctor in diagnosing a patient for such a disease includes warning the patient of the possibility of sexual transmission of the disease. Further, Hawkins' pleadings and affidavits must be read as indicating that the purpose of the doctor's duty to warn is to prevent the transmission of the disease to third parties--i.e., it exists specifically for the protection of those third parties because the patient has already contracted the disease.

While plaintiff has made a showing that the duty of care includes a duty intended for the benefit of third parties, Pate requires that it be for the benefit of "certain identified third parties and the physician knows of the existence of those third parties...." 661 So.2d at 282. Here, Shaw herself had not yet met Hawkins at the time of the incorrect diagnosis. As Hawkins was neither identified nor known to the physician, summary judgment was correctly entered.

Affirmed.

[492 N.Y.S.2d 556] Bruce L. Birnbaum and Benjamin J. Golub, New York City, for appellant.

William E. Hegarty, Ernest J. Williams, Thomas J. Kavaler, Stanley K. Shapiro and Lisa Schilit, New York City, for respondent.

OPINION OF THE COURT

KAYE, Justice.

On July 13, 1977, a failure of defendant Consolidated Edison's power system left most of New York City in darkness. In this action for damages allegedly resulting from the power failure, we are asked to determine whether Con Edison owed a duty of care to a tenant who suffered personal injuries in a common area of an apartment building, where his landlord--but not he--had a contractual relationship with the utility. We conclude that in the case of a blackout of a metropolis of several million residents and visitors, each in some manner necessarily affected by a 25-hour power failure, liability for injuries in a building's common areas should, as a matter of public policy, be limited by the contractual relationship.

This court has twice before confronted legal questions concerning the 1977 blackout (see, Koch v. Consolidated Edison Co., 62 N.Y.2d 548, 479 N.Y.S.2d 163, 468 N.E.2d 1, cert. denied 469 U.S. 1210, 105 S.Ct. 1177, 84 L.Ed.2d 326, Food Pageant v. Consolidated Edison Co., 54 N.Y.2d 167, 445 N.Y.S.2d 60, 429 N.E.2d 738).

Plaintiff, Julius Strauss, then 77 years old, resided in an apartment building in Queens. Con Edison provided electricity to his apartment pursuant to agreement with him, and to the common areas of the building under a separate agreement with his landlord, defendant Belle Realty Company. As water to the apartment was supplied by electric pump, plaintiff had no running water for the duration of the blackout. Consequently, on the second day of the power failure, he set out for the basement to obtain water, but fell on the darkened, defective basement stairs, sustaining injuries. In this action against Belle Realty and Con Edison, plaintiff alleged negligence against the landlord, in failing to maintain the stairs or warn of their dangerous condition, and negligence against the utility in the performance of its duty to provide electricity.

Plaintiff moved for partial summary judgment against Con Edison (1) to estop it from contesting the charge of gross negligence in connection with the blackout, and (2) to establish that Con Edison owed a duty of care to plaintiff. He argued that Con Edison was prohibited from denying it was grossly negligent by virtue of the affirmed jury verdict in Food Pageant v. Consolidated Edison Co., 54 N.Y.2d 167, 445 N.Y.S.2d 60, 429 N.E.2d 738, supra, and that it owed plaintiff a duty even though he was "not a customer of Consolidated Edison in a place where the accident occurred." Con Edison cross-moved for summary judgment dismissing the complaint, maintaining it had no duty to a noncustomer.

The court granted the motion insofar as it sought collateral estoppel regarding gross negligence,^[1] and denied Con Edison's cross motion to dismiss the complaint, finding a question of fact as to whether it owed plaintiff a duty of care. The Appellate Division reversed and dismissed the complaint against Con Edison. Citing Moch Co. v. Rensselaer Water Co., 247 N.Y. 160, 159 N.E. 896, the plurality concluded that "Con Ed did not owe a duty to plaintiff in any compensable legal sense" (98 A.D.2d 424, 428, 469 N.Y.S.2d 948). Justice Gibbons dissented, finding extension of the duty tolerable here because "tenants of the building in question constitute a defined, limited and known group of people" (id., at p. 437, 469 N.Y.S.2d 948). On public policy grounds, we [492 N.Y.S.2d 557] now affirm the Appellate Division order dismissing the complaint against Con Edison.

A defendant may be held liable for negligence only when it breaches a duty owed to the plaintiff (Pulka v. Edelman, 40 N.Y.2d 781, 782, 390 N.Y.S.2d 393, 358 N.E.2d 1019). The essential question here is whether Con Edison owed a duty to plaintiff, whose injuries from a fall on a darkened staircase may have conceivably been foreseeable, but with whom there was no contractual relationship for lighting in the building's common areas.

Duty in negligence cases is defined neither by foreseeability of injury (Pulka v. Edelman, supra, at p. 785, 390 N.Y.S.2d 393, 358 N.E.2d 1019) nor by privity of contract. As this court has long recognized, an obligation rooted in contract may engender a duty owed to those not in privity, for "is nothing anomalous in a rule which imposes upon A, who has contracted with B, a duty to C and D and others according as he knows or does not know that the subject-matter of the contract is intended for their use" (MacPherson v. Buick Motor Co., 217 N.Y. 382, 393, 111 N.E. 1050). In Fish v. Waverly Elec. Light & Power Co., 189 N.Y. 336, 82 N.E. 150, for example, an electric company which had contracted with the plaintiff's employer to install ceiling lights had a duty to the plaintiff to exercise reasonable care. And in Glanzer v. Shepard, 233 N.Y. 236, 135 N.E. 275, a public weigher, hired by a seller of beans to certify the weight of a particular shipment, was found liable in negligence to the buyer. (See also, Wroblewski v. Otis Elevator Co., 9 A.D.2d 294, 296, 193 N.Y.S.2d 855, Rosenbaum v. Branster Realty Corp., 276 App.Div. 167, 93 N.Y.S.2d 209).

But while the absence of privity does not foreclose recognition of a duty, it is still the responsibility of courts, in fixing the orbit of duty, "to limit the legal consequences of wrongs to a controllable degree" (Tobin v. Grossman, 24 N.Y.2d 609, 619, 301 N.Y.S.2d 554, 249 N.E.2d 419; see also, Howard v. Lecher, 42 N.Y.2d 109, 397 N.Y.S.2d 363, 366 N.E.2d 64), and to protect against crushing exposure to liability (see, Pulka v. Edelman, 40 N.Y.2d 781, 390 N.Y.S.2d 393, 358 N.E.2d 1019, supra; Ultramares Corp. v. Touche, 255 N.Y. 170, 174 N.E. 441). "In fixing the bounds of that duty, not only logic and science, but policy play an important role" (De Angelis v. Lutheran Med. Center, 58 N.Y.2d 1053, 1055, 462 N.Y.S.2d 626, 449 N.E.2d 406; see also, Becker v. Schwartz, 46 N.Y.2d 401, 408, 413 N.Y.S.2d 895, 386 N.E.2d 807). The courts' definition of an orbit of duty based on public policy may at times result in the exclusion of some who might otherwise have recovered for losses or injuries if traditional tort principles had been applied.

Considerations of privity are not entirely irrelevant in implementing policy. Indeed, in determining the liability of utilities for consequential damages for failure to provide service--a liability which could obviously be "enormous," and has been described as "sui generis," rather than strictly governed by tort or contract law principles (see, Prosser and Keeton, Torts § 92, at 663 )--courts have declined to extend the duty of care to noncustomers. For example, in Moch Co. v. Rensselaer Water Co., 247 N.Y. 160, 159 N.E. 896, supra, a water works company contracted with the City of Rensselaer to satisfy its water requirements. Plaintiff's warehouse burned and plaintiff brought an action against the water company in part based on its alleged negligence in failing to supply sufficient water pressure to the city's hydrants. The court denied recovery, concluding that the proposed enlargement of the zone of duty would unduly extend liability. Similarly, in Beck v. FMC Corp., 42 N.Y.2d 1027, 398 N.Y.S.2d 1011, 369 N.E.2d 10, affg. 53 A.D.2d 118, 385 N.Y.S.2d 956), an explosion interrupted a utility's electrical service, which in turn resulted in the loss of a day's pay for hourly workers at a nearby automobile plant. In an action brought by the workers, the court denied recovery on the basis of controlling the unwarranted extension of liability [492 N.Y.S.2d 558] (see also, Nicholson v. City of New York, 271 App.Div. 899, 67 N.Y.S.2d 156, affd. 297 N.Y. 548, 74 N.E.2d 477; Kraye v. Long Is. Light. Co., 42 A.D.2d 972, 348 N.Y.S.2d 16; Shubitz v. Consolidated Edison Co., 59 Misc.2d 732, 301 N.Y.S.2d 926).

Moch involved ordinary negligence, while Con Edison was guilty of gross negligence, but the cases cannot be distinguished on that basis. In reserving the question of what remedy would lie in the case of "reckless and wanton indifference to consequences measured and foreseen" (247 N.Y. at p. 169, 159 N.E. 896), the court in Moch contemplated a level of misconduct greater than the gross negligence involved here (cf. Matter of Almgren v. Fletcher, 304 N.Y. 547, 110 N.E.2d 396; Weld v. Postal Telegraph-Cable Co., 210 N.Y. 59, 103 N.E. 957; 1 N.Y. PJI2d 2:10A Prosser and Keeton, Torts § 34, at 208 ). The court in Food Pageant, in upholding the jury's verdict against Con Edison, noted as instances of Con Edison's misconduct its employee's failure to follow instructions to reduce voltage by "shedding load" after lightning had hit the electrical system, and its staffing decisions (54 N.Y.2d at pp. 173-174, 445 N.Y.S.2d 60, 429 N.E.2d 738, supra). Though found by the jury to constitute gross negligence, this behavior was not so consciously culpable as to fall into the category of conduct contemplated as "reckless and wanton" by the court in Moch (compare, Hall v. Consolidated Edison Co., 104 Misc.2d 565, 428 N.Y.S.2d 837).

In the view of the Appellate Division dissenter, Moch does not control because the injuries here were foreseeable and plaintiff was a member of a specific, limited, circumscribed class with a close relationship with Con Edison. The situation was thought to be akin to White v. Guarente, 43 N.Y.2d 356, 401 N.Y.S.2d 474, 372 N.E.2d 315, where an accounting firm was retained by a limited partnership to perform an audit and prepare its tax returns. As the court noted there, the parties to the agreement contemplated that individual limited partners would rely on the tax returns and audit. Refusing to dismiss a negligence action brought by a limited partner against the accounting firm, the court said, "the services of the accountant were not extended to a faceless or unresolved class of persons, but rather to a known group possessed of vested rights, marked by a definable limit and made up of certain components" (id., at p. 361, 401 N.Y.S.2d 474, 372 N.E.2d 315; see also, Glanzer v. Shepard, 233 N.Y. 236, 135 N.E. 275; supra; Fish v. Waverly Elec. Light & Power Co., 189 N.Y. 336, 82 N.E. 150, supra).

Central to these decisions was an ability to extend the defendant's duty to cover specifically foreseeable parties but at the same time to contain liability to manageable levels. In White, for instance, liability stemmed from a single isolated transaction where the parties to the agreement contemplated the protection of identified individuals. Here, insofar as revealed by the record, the arrangement between Con Edison and Belle Realty was no different from those existing between Con Edison and the millions of other customers it serves. Thus, Con Edison's duty to provide electricity to Belle Realty should not be treated separately from its broader statutory obligation to furnish power to all other applicants for such service in New York City and Westchester County (Transportation Corporations Law § 12; Public Service Law § 31). When plaintiff's relationship with Con Edison is viewed from this perspective, it is no answer to say that a duty is owed because, as a tenant in an apartment building, plaintiff belongs to a narrowly defined class.^[2] [492 N.Y.S.2d 559] Additionally, we deal here with a system-wide power failure occasioned by what has already been determined to be the utility's gross negligence. If liability could be found here, then in logic and fairness the same result must follow in many similar situations. For example, a tenant's guests and invitees, as well as persons making deliveries or repairing equipment in the building, are equally persons who must use the common areas, and for whom they are maintained. Customers of a store and occupants of an office building stand in much the same position with respect to Con Edison as tenants of an apartment building. In all cases the numbers are to a certain extent limited and defined, and while identities may change, so do those of apartment dwellers (compare, White v. Guarente, 43 N.Y.2d 356, 361, 401 N.Y.S.2d 474, 372 N.E.2d 315, supra ). While limiting recovery to customers in this instance can hardly be said to confer immunity from negligence on Con Edison (see, Koch v. Consolidated Edison Co., 62 N.Y.2d 548, 479 N.Y.S.2d 163, 468 N.E.2d 1, supra), permitting recovery to those in plaintiff's circumstances would, in our view, violate the court's responsibility to define an orbit of duty that places controllable limits on liability.

Finally, we reject the suggestion of the dissent that there should be a fact-finding hearing to establish the alleged catastrophic probabilities flowing from the 1977 blackout and prospective blackouts, before any limitation is placed on Con Edison's duty to respond to the public for personal injuries (see, Tobin v. Grossman, 24 N.Y.2d 609, 620, 301 N.Y.S.2d 554, 249 N.E.2d 419 supra ). In exercising the court's traditional responsibility to fix the scope of duty, for application beyond a single incident, we need not blind ourselves to the obvious impact of a city-wide deprivation of electric power, or to the impossibility of fixing a rational boundary once beyond the contractual relationship, or to the societal consequences of rampant liability.

In sum, Con Edison is not answerable to the tenant of an apartment building injured in a common area as a result of Con Edison's negligent failure to provide electric service as required by its agreement with the building owner. Accordingly, the order of the Appellate Division should be affirmed, with costs.

MEYER, Justice (dissenting).

My disagreement with the majority results not from its consideration of public policy as a factor in determining the scope of Con Ed's duty, but from the fact that in reaching its public policy conclusion it has considered only one side of the equation and based its conclusion on nothing more than assumption. I, therefore, respectfully dissent.

As Professors Prosser and Keeton have emphasized (Prosser and Keeton, Torts, at 357-358 ), "The statement that there is or is not a duty begs the essential question--whether the plaintiff's interests are entitled to legal protection against the defendant's conduct * * * It is a shorthand statement of a conclusion, rather than an aid to analysis in itself * * * But it should be recognized that 'duty' is not sacrosanct in itself, but is only an expression of the sum total of those considerations of policy which lead the law to say that the plaintiff is entitled to protection." We accepted the concept without reservation in De Angelis v. Lutheran Med. Center, 58 N.Y.2d 1053, 1055, 462 N.Y.S.2d 626, 449 N.E.2d 406, stating as to the role played by policy that, "A line must be drawn between the competing policy considerations of providing a remedy to everyone who is injured and of extending exposure to tort liability almost without limit."

Although De Angelis did not define the "competing policy considerations" to be reviewed in deciding where the line is to be [492 N.Y.S.2d 560] drawn, it made clear that "absent legislative intervention, the fixing of the 'orbit' of duty, as here, in the end is the responsibility of the courts". Thus, the suggestion in the plurality opinion at the Appellate Division (98 A.D.2d at p. 429, 469 N.Y.S.2d 948) that the liability issue now considered is "best addressed to the Legislature" is no more correct in the present situation than it was when in Codling v. Paglia, 32 N.Y.2d 330, 345 N.Y.S.2d 461, 298 N.E.2d 622 we imposed upon manufacturers the economic burden of strict products liability to bystanders as well as to those in privity.

There is, of course, legislative intervention in the regulation of gas and electric companies (Transportation Corporations Law art. 2; Public Service Law art. 4). But the only "legislative" limitation upon the liability of such companies consists of Public Service Commission acceptance and approval of Con Ed's rate schedule, which incorporates the rule, previously enunciated by this court (Weld v. Postal Telegraph-Cable Co., 199 N.Y. 88, 92 N.E. 415, on second appeal 210 N.Y. 59, 103 N.E. 957), that liability "be limited to damages arising from the utility's willful misconduct or gross negligence" (Food Pageant v. Consolidated Edison Co., 54 N.Y.2d 167, 172, 445 N.Y.S.2d 60, 429 N.E.2d 738). But, as Food Pageant and Koch v. Consolidated Edison Co., 62 N.Y.2d 548, 479 N.Y.S.2d 163, 468 N.E.2d 1, cert. denied 469 U.S. 1210, 105 S.Ct. 1177, 84 L.Ed.2d 326) establish, what caused the injuries for which compensation is sought in this action was Con Ed's gross negligence.

What policy considerations are involved in determining whether Con Ed's gross negligence liability should be extended to "bystanders" and where, if at all, a line should be drawn between the varying bystander situations is, then, the issue to be decided. Codling v. Paglia looked at the total exclusion of the bystander from opportunity to detect a product defect, the system of mass production and distribution, the ability of the manufacturer to pass on, in part if not in whole, the economic burden of postdistribution liability, and the added incentive toward safety that could be expected to result (32 N.Y.2d at p. 341, 345 N.Y.S.2d 461, 298 N.E.2d 622). To that extent at least it departed from the rationale of Moch Co. v. Rensselaer Water Co., 247 N.Y. 160, 168, 159 N.E. 896 that performance of a contract to supply water to a municipality did not impose "another duty, apart from contract, to an indefinite number of potential beneficiaries."

Ultramares Corp. v. Touche, 255 N.Y. 170, 174 N.E. 441, Tobin v. Grossman, 24 N.Y.2d 609, 301 N.Y.S.2d 554, 249 N.E.2d 419 and Pulka v. Edelman, 40 N.Y.2d 781, 390 N.Y.S.2d 393, 358 N.E.2d 1019 on which the majority rely, spoke, it is true, to the necessity of avoiding crushing liability, but articulated no factors by which the crushing nature of the potential liability was to be determined. They can, perhaps, be distinguished from Codling on the ground that the service businesses they involved (accounting, medicine and parking) do not have the potential of Codling's mass distribution system to pass on or absorb the resulting economic burden, but the same cannot be said for the present defendant though it too is involved in furnishing a service.

Criteria more extensive than the unsupported prediction of disaster for determining liability are not wanting, however. Thus, in Tarasoff v. Regents of Univ., 17 Cal.3d 425, 434, 131 Cal.Rptr. 14, 22, 551 P.2d 334, 342), the Supreme Court of California listed the major factors to be balanced in determining duty as "the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost and prevalence of insurance for the risk involved." Prosser and Keeton (op. cit., supra at 359), on the basis of the Tarasoff case and Vu v. Singer Co., 538 F.Supp. 26, affd. 9th Cir., 706 [492 N.Y.S.2d 561] F.2d 1027, cert. denied 464 U.S. 938, 104 S.Ct. 350, 78 L.Ed.2d 315, list similar factors, which are discussed at greater length in section 4 of their treatise. As to the loss distribution factor, they note (op. cit., at 24-25) that, "The defendants in tort cases are to a large extent public utilities, industrial corporations, commercial enterprises, automobile owners, and others who by means of rates, prices, taxes or insurance are best able to distribute to the public at large the risks and losses which are inevitable in a complex civilization. Rather than leave the loss on the shoulders of the individual plaintiff, who may be ruined by it, the courts have tended to find reasons to shift it to the defendants", except where there are "limitations upon the power of a defendant to shift the loss to the public * * * where the liability may extend to an unlimited number of unknown persons, and is incapable of being estimated or insured against in advance."

The majority's blind acceptance of the notion that Consolidated Edison will be crushed if held liable to the present plaintiff and others like him ignores the possibility that through application to the Public Service Commission Con Ed can seek such reduction of the return on stockholders' equity (Public Service Law § 66 cf. Matter of Consolidated Edison Co. v. Public Serv. Commn., 74 A.D.2d 384, 428 N.Y.S.2d 343, appeal dismissed 51 N.Y.2d 877, 433 N.Y.S.2d 1030, 414 N.E.2d 405, lv. denied 51 N.Y.2d 705, 433 N.Y.S.2d 1025, 412 N.E.2d 1327) or increase in its rates, or both, as may be necessary to pay the judgments obtained against it. It ignores as well the burden imposed upon the persons physically injured by Con Ed's gross negligence or, as to those forced to seek welfare assistance because their savings have been wiped out by the injury, the State. Doing so in the name of public policy seems particularly perverse, for what it says, in essence, is the more persons injured through a tort-feasor's gross negligence,^[*] the less the responsibility for injuries incurred.

I agree that there are situations encompassed by our tort system that require such a result, perverse though it may be, but before granting public utilities absolution beyond that which they already enjoy through the limitation of their liability to acts of gross negligence, I would put the burden upon the utility to establish the necessity for doing so. I am not suggesting that the issue is to be determined by a jury for, as already noted, I do not question that "duty" is a question of law to be determined by the courts. But the law is not without illustrations of preliminary issues involving facts to be determined by a Judge (e.g., competency and privilege of witnesses, Richardson, Evidence § 117 Morgan, Evidence § 53 suppression of evidence, CPL 710.60; Richardson, op cit. § 550). Nor am I necessarily suggesting that a retrospective determination of how crushing the liability from the 1977 blackout may be, as distinct from a more generalized prospective determination, should govern, although I would not balk at the former if the latter proved impossible of demonstration. All that I am suggesting is that it is Con Ed which claims that its duty does not encompass plaintiff, not because Con Ed was not grossly negligent, but because the effect of that negligence if Con Ed is held liable for it would be to cripple Con Ed as well as the victims of the negligence. There simply is no basis other than the majority's say so for its assumptions (majority opn., at p. 405, 492 N.Y.S.2d at p. 559, 482 N.E.2d at p. 38) that the impact of a city-wide deprivation of electric power upon the utility is entitled to greater consideration than the impact upon those injured; that a rational boundary cannot be fixed that will include some (apartment tenants injured in common areas, for example), if not all of the injured; that the consequence of imposing [492 N.Y.S.2d 562] some bystander liability will be more adverse to societal interests than will follow from blindly limiting liability for tort to those with whom the tort-feasor has a contractual relationship. Before we grant Con Ed's motion to dismiss, therefore, we should require that a rational basis for such assumptions be established.

Con Ed may well be able to do so, but before its motion is granted at the expense of an unknown number of victims who have suffered injuries the extent and effects of which are also unknown, it should be required to establish that the catastrophic probabilities are great enough to warrant the limitation of duty it seeks (cf. Tobin v. Grossman, 24 N.Y.2d 609, 620, 301 N.Y.S.2d 554, 249 N.E.2d 419 supra ).

I would, therefore, deny the summary judgment motions of both sides and remit to Supreme Court for determination of the preliminary fact issues involved.

WACHTLER, C.J., and SIMONS, ALEXANDER and TITONE, JJ., concur with KAYE, J.

MEYER, J., dissents and votes to reverse in a separate opinion in which JASEN, J., concurs.

Order affirmed, with costs.

[1] The collateral estoppel question was decided against Con Edison in Koch v. Consolidated Edison Co., 62 N.Y.2d 548, 479 N.Y.S.2d 163, 468 N.E.2d 1.

[2] In deciding that public policy precludes liability to a noncustomer injured in the common areas of an apartment building, we need not decide whether recovery would necessarily also be precluded where a person injured in the home is not the family bill payer but the spouse. In another context, where this court has defined the duty of a public accounting firm for negligent financial statements, we have recognized that the duty runs both to those in contractual privity with the accountant and to those whose bond is so close as to be, in practical effect, indistinguishable from privity, and we have on public policy grounds precluded wider liability to persons damaged by the accountant's negligence. (See, Credit Alliance Corp. v. Andersen & Co., 65 N.Y.2d 536, 493 N.Y.S.2d 435, 483 N.E.2d 110.) [decided herewith].)

[*] Nor can I accept the "consciously culpable" distinction which the majority seeks to impose between Con Ed and the employee who failed to "shed load." If, as Ultramares holds (255 N.Y. 170, at p. 193, 174 N.E. 441), the employer can be held for its subordinate's fraud, absent a showing that the subordinate acted out of an interest adverse to the employer, the same should be true of gross negligence.

[762] James R. Ihnot, Kirkland, for Appellant.

Helsell, Fetterman, Martin, Todd & Hokanson, Patricia Anderson, Lish Whitson, Seattle, for Respondent.

Burgess, Fitzer, Leighton & Phillips, Timothy Gosselin, Tacoma, Amicus Curiae on Behalf of Washington Defense Trial Lawyers Association.

Bryan Harnetiaux, Debra Stephens, Spokane, Amicus Curiae on Behalf of Washington State Trial Lawyers Association.

MADSEN, Justice.

Plaintiffs appeal a trial court decision dismissing their personal injury action on summary judgment against the Defendants. At issue is whether the Defendant social hosts who furnished alcohol to a minor owe a duty of care to third persons injured by the intoxicated minor. We affirm the trial court's dismissal finding that the Defendant social hosts owed no duty to third persons injured by the intoxicated minor.

STATEMENT OF THE CASE

Jamie and Anna Hicks were married on September 10, 1988, at St. Bernadette Church in Seattle. Three hundred people attended the wedding, including Jamie Hicks' under-age nephew, Steven Hicks. The wedding was followed by a dinner reception where wine and champagne were served. After dinner, drinks were available at a hosted bar.

The facts concerning the hosted bar are not clear. Although Steven Hicks stated that he helped himself to drinks left unattended at an "open bar," Jamie and Anna Hicks claim that the bar was hosted at all times, that guests were not allowed to serve themselves, and that alcoholic and non-alcoholic beverages were served in different cups. Clerk's Papers (CP) at 80, 94-95. Steven Hicks admitted to consuming alcohol at the reception; however, other relatives, including his sister, Dianne Hicks, his aunt, Anne Dahl, and Jamie and Anna Hicks, all claimed that they did not see Steven drinking alcohol nor did he appear to be in an intoxicated state.

At approximately midnight, Steven Hicks left the reception in his sister Dianne's car. At 1:00 A.M. he was involved in an automobile accident with the Plaintiff, Timothy Reynolds. Both Steven Hicks and Timothy Reynolds registered blood alcohol levels of .17 percent. Timothy Reynolds suffered serious injuries as a result of the accident.

Plaintiff Timmy Reynolds, his wife JoDee, and children Matthew, Andrew, and Weslee originally sued Steven Hicks, his sister Dianne, and Does I through V^[1] in October, 1990. In July, 1991, Plaintiffs filed an amended complaint listing Jamie and Anna Hicks as Defendants, alleging that they were "negligent in serving alcoholic beverages to Defendant [Steven] with knowledge and/or reason to believe that [he] was below the age of 21 years and/or became intoxicated." CP at 18D; CP at 76. Steven and Dianne settled with Plaintiffs and are not a party to this appeal.

[763] In December, 1993, Jamie and Anna Hicks filed a motion for summary judgment on two separate grounds. First, they sought a dismissal arguing that Washington law does not extend social host liability for furnishing alcohol to a minor to third persons injured by the intoxicated minor. Second, they stated that assuming Washington does extend social host liability to third persons, the minor in this case was not "obviously intoxicated" at the time he was served alcohol. CP at 532.

Judge James Bates of the King County Superior Court granted the Defendants' motion for summary judgment on the first issue, finding that the Defendant social hosts did not owe a duty to third parties injured by the intoxicated minor. Judge Bates reserved the second claim for consideration. Subsequently, Judge Richard D. Eadie entered an order granting Defendants' second motion and all claims were dismissed against Jamie and Anna Hicks. Plaintiffs appealed to the Court of Appeals. The Court of Appeals certified the case to this court and direct review was granted pursuant to RCW 2.06.030.

DISCUSSION

When reviewing a summary judgment order, an appellate court engages in the same inquiry as the trial court. See Mutual of Enumclaw Ins. Co. v. Jerome, 122 Wash.2d 157, 160, 856 P.2d 1095 (1993); Wilson v. Steinbach, 98 Wash.2d 434, 437, 656 P.2d 1030 (1982). Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See CR 56(c); Mutual of Enumclaw, 122 Wash.2d at 160, 856 P.2d 1095. The motion will be granted, after considering the evidence in the light most favorable to the nonmoving party, only if reasonable persons could reach but one conclusion. See Wilson, 98 Wash.2d at 437, 656 P.2d 1030.

In order to prove an actionable claim for negligence, the plaintiff must show (1) the existence of a duty to the complaining party, (2) a breach of that duty, (3) a resulting injury, and (4) that the breach was the proximate cause of the injury. See Hansen v. Friend, 118 Wash.2d 476, 479, 824 P.2d 483 (1992) (citing Pedroza v. Bryant, 101 Wash.2d 226, 228, 677 P.2d 166 (1984)).

The issue presented in this case is whether a social host who furnishes alcohol to a minor owes a duty of care to third persons injured by the intoxicated minor. Whether a defendant owes a duty of care to the complaining party is a question of law. See id. Washington courts have recognized that a legislative enactment may prescribe a standard of conduct required of a reasonable person. See Hansen, 118 Wash.2d at 479, 824 P.2d 483; Young v. Caravan Corp., 99 Wash.2d 655, 659, 663 P.2d 834, 672 P.2d 1267 (1983).

Plaintiffs contend that RCW 66.44.270 creates a duty of care owed by the Defendants to the Plaintiffs. RCW 66.44.270(1) makes it unlawful for any person to give, or otherwise supply liquor to any person under the age of twenty-one years or permit any person under that age to consume liquor on his or her premises or on any premises under his or her control. RCW 66.44.270(3) does not apply to liquor given or permitted to be given to a person under the age of twenty-one years by a parent or guardian and consumed in the presence of the parent or guardian.

To determine whether a duty of care exists based on a statutory violation, this court has adopted the Restatement (Second) of Torts § 286 (1965), which, among other things, requires that the injured person be within the class of persons the statute was enacted to protect. See Restatement (Second) of Torts § 286 (1965);^[2] Schooley v. Pinch's Deli Market, [764] Inc., 134 Wash.2d 468, 474-75, 951 P.2d 749, 752-753 (1997).

In Hansen, this court recognized that a minor who is injured as a result of alcohol intoxication has a cause of action against the social host who supplied the alcohol based on RCW 66.44.270. See Hansen, 118 Wash.2d at 485, 824 P.2d 483. Plaintiffs ask this court to extend the ruling of Hansen to allow a cause of action for third persons who are injured by an intoxicated minor against the social host. We find that such an expansion is not warranted by the statute or Washington case law.

In Hansen, Keith Hansen's mother sued her son's adult social host for furnishing alcohol to her son which resulted in his death. See id. at 478, 824 P.2d 483. The court found that RCW 66.44.270(1) created a duty upon the social host not to furnish alcohol to a minor. See id. at 482, 824 P.2d 483. Applying the Restatement test, the court observed that the statute prohibits persons from giving alcohol to a minor and since Hansen was a minor who was furnished alcohol, he fell within the statute's protected class. See id. at 481, 824 P.2d 483. The court in Hansen, however, did not indicate that the class protected by the statute encompassed third persons injured by the intoxicated minor. See id. The court stated that "RCW 66.44.270(1) protects a minor's health and safety interest from the minor's own inability to drink responsibly." Id. at 481, 824 P.2d 483 (emphasis added). The Hansen court, by its express language, created a limited cause of action for minors injured by their own intoxication against their social host.

Because of the inherent differences between social hosts and commercial vendors, we have indicated our reluctance to allow a cause of action against a social host to the same extent that we have recognized commercial vendor liability. We have explained:

There is good reason to withhold common law liability for social hosts even though such liability already exists for commercial and quasi-commercial hosts. Social hosts are not as capable of handling the responsibilities of monitoring their guests' alcohol consumption as are their commercial and quasi-commercial counterparts....

[T]he commercial proprietor has a proprietary interest and profit motive, and should be expected to exercise greater supervision than in the (non-commercial) social setting. Moreover, a person in the business of selling and serving alcohol is usually better organized to control patrons, and has the financial wherewithal to do so....

Additionally, the implications of social host liability are so much more wide sweeping and unpredictable in nature than are the implications of commercial host liability. While liability for commercial providers affects only a narrow slice of our populations, social host liability would touch most adults in the state on a frequent basis. Because social hosts are generally unaccustomed to the pressures involved in taking responsibility for the intoxication of their guests, we cannot predict how well social hosts would respond when the scope of their duties would be so ill defined.

Burkhart v. Harrod, 110 Wash.2d 381, 386-87, 755 P.2d 759 (1988).

Because of these important concerns, this court does not recognize a cause of action in negligence for a third person injured by an intoxicated adult against the social host that served the person while in an obviously intoxicated state, see Burkhart, 110 Wash.2d 381, 755 P.2d 759, but does recognize a cause of action against a commercial vendor in the same situation, see Dickinson v. Edwards, 105 Wash.2d 457, 716 P.2d 814 (1986). This case dramatically highlights the concerns expressed above. To expect Jamie and Anna Hicks, on their wedding day, to monitor their minor guests alcohol consumption in the same manner as we expect of an alcohol vendor is unrealistic and has far reaching social implications.

Recognizing an expanded duty to protect third persons raises problematic questions for social hosts in all contexts. Is the host required to card persons at social and family gatherings? Must the host hire a bartender to control and monitor the alcohol in the [765] home so that a minor cannot obtain alcohol at a party? Must the host assure that a minor has not brought outside alcohol to the gathering? Must the host obtain a breathalyzer to check all minor guests before leaving the premises? The differences between the ability of commercial vendors and social hosts in regulating the consumption of alcohol along with the far reaching implications of social host liability are persuasive reasons for not expanding liability in this case. As Justice Dolliver noted in his dissent in Hansen, the "`judiciary is ill equipped' to impose social host liability." Hansen, 118 Wash.2d at 486, 824 P.2d 483 (quoting Burkhart, 110 Wash.2d at 388, 755 P.2d 759).

We also note that other courts have found that significant differences between social hosts and commercial vendors support different treatment. The Court of Appeals has held that a third person injured by an intoxicated minor does not have a cause of action against the social host who furnished the alcohol or allowed the consumption of the alcohol on his or her premises. See Hostetler v. Ward, 41 Wash.App. 343, 704 P.2d 1193 (1985). The court applied the Restatement test and found that RCW 66.44.270 was designed "to protect minors from injuries resulting from their abuse of alcoholic beverages, not to protect third parties injured by intoxicated minors." Id. at 354, 704 P.2d 1193. The court explained that RCW 66.44.270 does not make it unlawful for the minor's parent or guardian to give alcohol to the minor if consumed in the presence of the parent or guardian. See id. This exception, the court stated, indicates that the statute was not designed for the protection of third persons. See id. Thus, the court concluded that the injured third person was not a member of the class of persons RCW 66.44.270 was designed to protect. See id.

The Court of Appeals in Mills v. Estate of Schwartz, 44 Wash.App. 578, 584-85, 722 P.2d 1363 (1986), agreed with the Hostetler court, finding that RCW 66.44.270 does not protect third persons injured by intoxicated minors. Rather, the court found that the statute protects minors from their own injuries as a result of their intoxication. See id. at 584, 722 P.2d 1363. The Mills court also reasoned that the Legislature, by allowing minors to drink alcohol if furnished by the minor's parent, did not intend to protect third persons. See id. at 585, 722 P.2d 1363.

We agree with the Court of Appeals that the exceptions to liability in RCW 66.44.270 lend weight to the argument that the statute was not enacted to protect third persons. As the Court of Appeals explained, RCW 66.44.270 does not make it unlawful for liquor to be given or permitted to be given to a minor by a parent or guardian as long as the alcohol is consumed in the presence of the parent or guardian. See RCW 66.44.270(3). The statute also provides exceptions for alcohol given for medical purposes and for religious services. See RCW 66.44.270(4), (5). Because the statute allows a parent or guardian to legally give alcohol to a minor who may then injure a third person it is apparent that the statute was not enacted to protect third persons injured by intoxicated minors.^[3] Additionally, expanding the protected class would lead to an illogical result whereby a person who did not violate RCW 66.44.270 would then be liable in negligence pursuant to the same statute.

Plaintiffs argue that the decisions of the Court of Appeals are of limited authority because they were decided before our rulings in Hansen and Purchase v. Meyer, 108 Wash.2d 220, 737 P.2d 661 (1987). We disagree. Our ruling in Hansen, as stated above, allowed a limited cause of action for a minor to recover for his or her alcohol related injuries. Hansen is consistent with the rulings of the Court of Appeals which indicate that although RCW 66.44.270 does not protect third persons, it does protect minors [766] from injuries to themselves as a result of their alcohol consumption.

In Purchase, we held that a third person injured by an intoxicated minor has a cause of action in negligence against the commercial vendor who sold the alcohol to the minor in violation of RCW 66.44.320.^[4] See Purchase, 108 Wash.2d at 228, 737 P.2d 661. Previously, this court in Young found that an intoxicated minor purchaser has a cause of action against the commercial vendor for his or her alcohol related injuries. See Young, 99 Wash.2d at 660, 663 P.2d 834. The court in Purchase expanded the protected class of the statute to include, not only the minor purchaser, but also third persons injured by the intoxicated minor purchaser. Purchase, 108 Wash.2d at 228, 737 P.2d 661. Plaintiffs argue that our ruling in Purchase requires that the protected class of RCW 66.44.270 also be expanded to included third persons injured by an intoxicated minor.

Our ruling in Purchase, however, involved liability for a commercial vendor not a social host. The statute prohibiting commercial vendors from selling alcohol to minors does not provide for exceptions, whereas the prohibition against furnishing alcohol to minors does.

In addition to the exceptions to liability under RCW 66.44.270, the Legislature has given other indications of its intent to treat social hosts differently than commercial vendors. RCW 66.20.210 provides the commercial vendor with a way to immunize itself from civil liability for alcohol-related injuries resulting from the sale of alcohol to a minor.^[5] In this way the Legislature has evinced an intent to hold commercial vendors liable. There is, however, no reference to such a protection for social hosts. It follows that the Legislature did not intend social hosts to be liable to the extent of commercial vendors. Thus, we find that Jamie and Anna Hicks did not owe a duty to Mr. Reynolds in this case.

ATTORNEYS FEES

Defendants argue that they are entitled to reasonable attorneys fees as the prevailing party pursuant to RCW 4.84.250 and costs pursuant to CR 68. Attorneys fees under RCW 4.84.250 are to be awarded to the prevailing party if the pleading party sought damages, exclusive of costs, of $10,000 or less. See RCW 4.84.250. The defendant is considered the "prevailing party" for purposes of RCW 4.84.250 if the plaintiff recovers either nothing or a sum not exceeding that offered by the defendant in settlement. See RCW 4.84.270. The intent of the statute is to enable a party to pursue a meritorious small claim of $10,000 or less without seeing the award diminished in whole or in part by legal fees. See Klein v. City of Seattle, 41 Wash.App. 636, 640, 705 P.2d 806 (1985); Northside Auto Serv., Inc. v. Consumers United Ins. Co., 25 Wash.App. 486, 492, 607 P.2d 890 (1980).

In this case the Plaintiffs did not seek an award of $10,000 or less. No specific amount was pleaded in the complaint; rather, the amount was set to be proven at trial. Thus, the Plaintiffs did not limit their award and based on their claim for damages and relief could have received well above $10,000 in damages.^[6] Consequently, Defendants are not entitled to reasonable attorneys fees pursuant to RCW 4.84.250.

Defendants also ask for costs based on CR 68. Costs under CR 68, however, are awarded when a judgment finally obtained is [767] not more favorable than an offer, and, in this case the record does not reflect that any settlement offer was made. Thus, Defendants are not entitled to costs pursuant to CR 68.

CONCLUSION

In conclusion, we decline to extend social host liability to third persons injured by intoxicated minors. We have long recognized that social hosts are ill-equipped to handle the responsibilities of their guests' alcohol consumption, unlike commercial vendors who are in the business of serving and selling alcohol. Thus, we have not allowed a cause of action against social hosts to the extent that we have recognized commercial vendor liability. Washington courts have also recognized that RCW 66.44.270 does not protect third persons injured by an intoxicated minor but, rather, protects minors from their own injuries as a result of their intoxication. We agree and affirm the trial court's dismissal of the Plaintiff's cause of action.

GUY and ALEXANDER, JJ., concur.

DURHAM, Chief Justice, concurring.

I agree with the majority that the Defendants, as social host, should not be liable for injuries to third parties caused by an intoxicated minor guest. I am not persuaded, however, by the majority's suggestion that the parental exception to the otherwise criminal prohibition against furnishing alcohol to minors somehow indicates that third parties are not within the statutory protected class. Instead, I would hold that the Defendants are not liable for the reasons expressed in the dissent in Hansen v. Friend, 118 Wash.2d 476, 486-87, 824 P.2d 483 (1992) (Dolliver, J., dissenting).

DOLLIVER and SANDERS, JJ., concur.

JOHNSON, Justice, dissenting.

The majority holds a social host who furnishes alcohol to a minor, in violation of a criminal statute, does not owe a duty of care to third persons injured by that intoxicated minor. I disagree with the majority's shielding from possible civil liability persons who commit a criminal act. I also disagree with the majority's analysis, which confuses the issues of duty and ultimate liability. For these reasons, I respectfully dissent.

This court has clearly recognized where the Legislature has made it a criminal offense to furnish alcohol to a minor, that minor has a civil cause of action. Hansen v. Friend, 118 Wash.2d 476, 480, 824 P.2d 483 (1992). This court has also clearly recognized where the Legislature has made it a criminal offense to sell alcohol to a minor, third parties foreseeably injured by that minor have a civil cause of action. Purchase v. Meyer, 108 Wash.2d 220, 228, 737 P.2d 661 (1987). The majority draws an insupportable distinction between social hosts and commercial vendors by ignoring that both are committing criminal acts when they furnish alcohol to a minor. The majority declines to recognize that a party injured by an underage drunk driver has a civil cause of action against the social host who furnished alcohol to that minor.

The Legislature, in criminalizing the act of furnishing or selling alcohol to a minor, has declared that act as the point on which to focus in the causal chain of underage drunk driving. The Legislature has directed us to view the point at which a minor is furnished or sold alcohol as the significant event from which consequences flow. If the minor never obtains the alcohol, the causal chain is stopped.

The majority, however, leaves us with the rule that a person commits a crime by furnishing alcohol to a minor, and yet avoids all civil liability for the consequences of that same act. This contradicts common sense. The Legislature has established the public policy of criminalizing the furnishing of alcohol to a minor. The majority ignores this established policy and replaces it with its own version of policy, based on the fact that "an expanded duty to protect third persons raises problematic questions for social hosts in all contexts." Majority at 764. The list of concerns for social host expressed by the majority places more emphasis on the possible difficulties posed for social hosts than on a potential remedy for victims of underage drunk driving. However, it is the social hosts that are in the best position to know the ages of the guest they are serving and to [768] regulate their own conduct so as to avoid committing a crime. Should social hosts have to "card" guests before serving them alcohol? Yes, if that's what it takes. Social hosts already have a responsibility to avoid criminal conduct. Nothing changes regarding the actions necessary to meet this responsibility upon imposition of a duty of care.

Under the majority, we are also left with the strained result of different standards for commercial vendors than for social hosts who furnish alcohol to minors. A vendor owes a duty to third parties, whereas a social host does not. The majority justifies this result based on the parental/guardian exception to criminal liability for furnishing alcohol to minors, explaining the differences between vendors and social hosts, and relying on policy concerns expressed by this court in Burkhart v. Harrod, 110 Wash.2d 381, 386-87, 755 P.2d 759 (1988). I find no justification exists for applying different standards to vendors than to social hosts who furnish alcohol to minors. Both commit crimes. In Burkhart, we held a social host who serves an obviously intoxicated adult does not owe a duty to third parties injured by the intoxicated adult Burkhart, 110 Wash.2d at 386-87, 755 P.2d 759. The policy concerns expressed in Burkhart do not apply to a social host liability in the context of an intoxicated minor. And since Burkhart, this court has recognized social host liability. We did so in Hansen, 118 Wash.2d 476, 824 P.2d 483. Victims suffer no less at the hands of an intoxicated minor served by a vendor than at the hands of those served by a social host. The source of the alcohol should not dictate whether a remedy is available.

The majority also creates the strained result of different civil liability for the person committing the crime of furnishing alcohol to a minor, depending on whether the minor or an innocent bystander is consequently injured. The majority reaches its conclusion, in part, by stating Hansen did not extend social host liability to injured third parties, but rather created a limited cause of action for injured, intoxicated minors against the social host who furnished them alcohol. Majority at 764. However, the express holding of Hansen is that under RCW 66.44.270(1), a duty of care is imposed on social hosts who serve alcohol to a minor. Hansen, 118 Wash.2d at 482, 824 P.2d 483. The Hansen court further held social hosts liable in negligence when the minor sustains injury proximately caused by a breach of this duty. Hansen, 118 Wash.2d at 482, 824 P.2d 483. Although Hansen did not create a cause of action for third parties, this court recognized such an action was allowed, based on the statute criminalizing furnishing alcohol to a minor. To suggest, as the majority does, that Hansen itself somehow restricted the duties of care this court would recognize in this area is incorrect. The Hansen court properly limited its holdings to the facts at hand; the court could not have extended a duty to third parties because the facts did not permit such an extension.

Previous cases indicate injured third parties are members of the class protected under RCW 66.44.270.^[1] In Estate of Kelly v. Falin, 127 Wash.2d 31, 896 P.2d 1245 (1995), we based our decision on RCW 66.08.010, which states: "This entire title shall be deemed an exercise of the police power of the state, for the protection of the welfare, health, peace, morals, and safety of the people of the state, and all its provisions shall be liberally construed for the accomplishment of that purpose." Kelly, 127 Wash.2d at 39, 896 P.2d 1245. We applied this purpose to RCW 66.44.200 and found the Legislature did not intend to protect the adult [769] drunk driver because "[u]nlike an innocent bystander hit by a drunk driver or a youth whose sense of immortality leads to reckless abandon, the responsibility for self-inflicted injuries lies with the intoxicated adult." Kelly, 127 Wash.2d at 39-40, 896 P.2d 1245. Kelly implicitly recognized the Washington State Liquor Act protects third parties from injury.

Purchase held an injured third party has a negligence per se claim against a vendor who sells alcohol to a minor. Purchase, 108 Wash.2d at 228, 737 P.2d 661. In reaching this decision, we found RCW 66.44.320, which proscribes selling alcohol to a minor, imposes a duty owed not to minors alone, but to members of the general public as well. Purchase, 108 Wash.2d at 228, 737 P.2d 661. We thus recognize that members of the general public, or injured third parties, were members of the protected class.

The majority bolsters its conclusion that RCW 66.44.270 was not designed to protect third parties by highlighting the exception contained in the statute. Because this exception allows the minor's parent or guardian to give alcohol to a minor if the alcohol is consumed in the presence of the parent or guardian, the majority reasons, it is apparent the statute was not enacted to protect third parties injured by intoxicated minors. Majority at 765. Although this creates an interesting discussion, it has little or nothing to do with the facts and issues in this case. The issue of parental liability is not before us.

The majority also confuses the issues of duty and ultimate liability. If the Hicks owe a duty to Reynolds not to serve alcohol to Steven, a minor, the inquiry regarding liability does not end there, as the majority seems to fear. Whether a party owes a duty to the plaintiff is a question of law. Hansen, 118 Wash.2d at 479, 824 P.2d 483. However, the concept of foreseeability determines the scope of the duty owed, and foreseeability is an issue for the trier of fact. Hansen, 118 Wash.2d at 483, 824 P.2d 483. To establish foreseeability, "the harm sustained must be reasonably perceived as being with the general field of danger covered by the specific duty owed by the defendant." Christen v. Lee, 113 Wash.2d 479, 780 P.2d 1307 (1989) (quoting Maltman v. Sauer, 84 Wash.2d 975, 981, 530 P.2d 254 (1975)). Ultimate liability also cannot be found without affirmative findings regarding the remaining three elements of negligence, namely breach of the duty, resulting injury, and proximate cause. Hansen, 118 Wash.2d at 485, 824 P.2d 483. Thus, once a duty is owed, the well established principles of negligence limit and shape the possibility and scope of any recovery.

The majority, however, prefers to prohibit any cause of action as a matter of law, rather than allowing these principles to dictate the remedies available to third parties injured by underage drunk drivers. A breach of duty not to furnish alcohol to a minor would not constitute negligence per se, but would be considered as evidence of negligence. RCW 5.40.050. In expressing its concerns regarding what conduct may be required of a social host, the majority appears to assume that if social hosts had a duty not to furnish alcohol to a minor, social hosts would automatically be liable for any injuries sustained by third parties at the hands of an intoxicated minor. The majority quotes Burkhart: "Because social hosts are generally unaccustomed to the pressures involved in taking responsibility for the intoxication of their guests, we cannot predict how well social hosts would respond when the scope of their duties would be so ill defined." Majority at 764 (quoting Burkhart, 110 Wash.2d at 387, 755 P.2d 759). On the contrary, the scope of a duty in this situation would not be ill defined. Liability, on the other hand, would rest on the facts of each case, as it should.

Under RCW 66.44.270, it is a criminal act for any person, including a social host, to furnish liquor to a minor. This statute establishes that a social host owes a duty of reasonable care not to furnish alcohol to a minor. A third party injured by an intoxicated minor should be able to maintain an action against the social host when this duty is breached and the injuries are proximately caused by the breach.

For the above reasons, I dissent.

SMITH and TALMADGE, JJ., concur.

[1] Does I through V are unknown corporations or entities that were allegedly negligent in serving alcoholic beverages to Steven Hicks.

[2] Restatement (Second) of Torts § 286 (1965) provides:

"The court may adopt as the standard of conduct of a reasonable man the requirements of a legislative enactment or an administrative regulation whose purpose is found to be exclusively or in part

"(a) to protect a class of persons which includes the one whose interest is invaded, and

"(b) to protect the particular interest which is invaded, and

"(c) to protect that interest against the kind of harm which has resulted, and

"(d) to protect that interest against the particular hazard from which the harm results."

[3] The Oregon Supreme Court, when interpreting a similar statute that made it unlawful for any person other than a minor's parent or guardian to give alcohol to a minor, held that the statute was intended to protect minors, not third persons, from injury. See Wiener v. Gamma Phi Chapter of Alpha Tau Omega Fraternity, 258 Or. 632, 638, 485 P.2d 18, 53 A.L.R.3d 1276 (1971). The court explained that because the terms of the statute allow liquor to be legally given by parents or guardians to minors who may then become intoxicated and injure third persons, it is difficult to justify a holding that the purpose of the statute was to protect third persons from injury by intoxicated minors. See Davis v. Billy's Con-Teena, Inc., 284 Or. 351, 356, 587 P.2d 75 (1978).

[4] RCW 66.44.320 provides:

"Every person who shall sell any intoxicating liquor to any minor shall be guilty of a violation of Title 66 RCW."

[5] If, after a purchaser presents identification, the vendor still has doubts about the purchaser's age the vendor can fill out and have the purchaser sign a certification card complying with RCW 66.20.190. If the vendor completes this step the vendor is immune from any criminal or civil liability regarding the sale of alcohol to the minor. RCW 66.20.210.

[6] Timothy Reynolds sought damages for physical and mental injuries he sustained as a result of the accident and other damages to be proven at trial. See CP at 18 D-F. Jodee Reynolds sought damages for personal injuries she sustained as a result of the accident and for loss of assistance and affection of her husband. See CP at 18 D-F. Also the children of Mr. Reynolds sought damages for their loss of companionship and future financial and emotional support of their father. See CP at 18 D-F.

__________

[1] Washington courts have adopted the test from the Restatement (Second) of Torts § 286 (1965) to determine when a statute may be adopted as a reasonable person's standard of conduct. The Restatement provides:

"The court may adopt as the standard of conduct of a reasonable [person] the requirements of a legislature enactment ... whose purpose is found to be exclusively or in part

"(a) to protect a class of persons which includes the one whose interest is invaded, and

"(b) to protect the particular interest which is invaded, and

"(c) to protect that interest against the kind of harm which has resulted, and

"(d) to protect that interest against the particular hazard from which the harm results." At issue in this case is whether Reynolds is within the class of persons the statute was designed to protect.

[476 A.2d 1220] [96 N.J. 540] Nicholas G. Radano, Lindenwold, submitted a letter brief on behalf of amicus curiae Sandra Weber, an incompetent, by her guardian ad litem, Shirley Vitiello; Walter John Sauers Weber, a minor, by his legal guardian, Shirley Vitiello; and Shirley Vitiello, individually.

Michael D. Schottland, West Long Branch, for plaintiff-appellant Marie E. Kelly (Chamlin, Schottland, Rosen, Cavanagh & Uliano, West Long Branch, attorneys; Thomas W. Cavanagh, Jr., West Long Branch, on the brief).

John P. Duggan, Red Bank, for defendants-appellants Donald C. Gwinnell and Paragon Corp. (Wolff, Helies & Duggan, Red Bank, attorneys).

George N. Arvanitis, Asbury Park, for defendants-respondents (Carton, Nary, Witt & Arvanitis, attorneys; Jamie S. Perri, Asbury Park, on the brief).

The opinion of the Court was delivered by

WILENTZ, C.J.

This case raises the issue of whether a social host who enables an adult guest at his home to become drunk is liable to the victim of an automobile accident caused by the drunken [96 N.J. 541] driving of the guest. Here the host served liquor to the guest beyond the point at which the guest was visibly intoxicated. We hold the host may be liable under the circumstances of this case.

At the trial level, the case was disposed of, insofar as the issue before us is concerned, by summary judgment in favor of the social host. The record on which the summary judgment was based (pleadings, depositions, and certifications) discloses that defendant Donald Gwinnell, after driving defendant Joseph Zak home, spent an hour or two at Zak's home before leaving to return to his own home. During that time, according to Gwinnell, Zak, and Zak's wife, Gwinnell consumed two or three drinks of scotch on the rocks. Zak accompanied Gwinnell outside to his car, chatted with him, and watched as Gwinnell then drove off to go home. About twenty-five minutes later Zak telephoned Gwinnell's home to make sure Gwinnell had arrived there safely. The phone was answered by Mrs. Gwinnell, who advised Zak that Gwinnell had been involved in a head-on collision. The collision was with an automobile operated by plaintiff, Marie Kelly, who was seriously injured as a result.

After the accident Gwinnell was subjected to a blood test, which indicated a blood alcohol concentration of 0.286 percent.^[1] Kelly's expert concluded from that reading that Gwinnell had consumed not two or three scotches but the equivalent of thirteen drinks; that while at Zak's home Gwinnell must have been showing unmistakable signs of intoxication; and that in fact he was severely intoxicated while at Zak's residence and at the time of the accident.

Kelly sued Gwinnell and his employer; those defendants sued the Zaks in a third party action; and thereafter plaintiff amended [96 N.J. 542] her complaint to include Mr. and Mrs. Zak as direct defendants. The Zaks moved for summary judgment, contending that as a matter of law a host is not liable [476 A.2d 1221] for the negligence of an adult social guest who has become intoxicated while at the host's home. The trial court granted the motion on that basis. While this disposition was interlocutory (plaintiff's claim against Gwinnell and his employer still remaining to be disposed of), the trial court entered final judgment in favor of Zak pursuant to Rule 4:42-2 apparently in order to allow an immediate appeal. Pressler, Current N.J. Court Rules, Comment R.4:42-2. The Appellate Division affirmed, Kelly v. Gwinnell, 190 N.J.Super. 320, 463 A.2d 387 (1983). It noted, correctly, that New Jersey has no Dram Shop Act imposing liability on the provider of alcoholic beverages, and that while our decisional law had imposed such liability on licensees, common-law liability had been extended to a social host only where the guest was a minor. Id. at 322-23, 463 A.2d 387. (But see Figuly v. Knoll, 185 N.J.Super. 477, 449 A.2d 564 (Law Div.1982).) It explicitly declined to expand that liability where, as here, the social guest was an adult. Id. at 325-26, 463 A.2d 387.

The Appellate Division's determination was based on the apparent absence of decisions in this country imposing such liability (except for those that were promptly overruled by the Legislature).^[2] Id. at 324-25, 463 A.2d 367. The absence of such determinations [96 N.J. 543] is said to reflect a broad consensus that the imposition of liability arising from these social relations is unwise. Certainly this immunization of hosts is not the inevitable result of the law of negligence, for conventional negligence analysis points strongly in exactly the opposite direction. "Negligence is tested by whether the reasonably prudent person at the time and place should recognize and foresee an unreasonable risk or likelihood of harm or danger to others." Rappaport v. Nichols, 31 N.J. 188, 201, 156 A.2d 1 (1959); see also Butler v. Acme Mkts., Inc., 89 N.J. 270, 445 A.2d 1141 (1982) (supermarket operator liable for failure to provide shoppers with parking lot security). When negligent conduct creates such a risk, setting off foreseeable consequences that lead to plaintiff's injury, the conduct is deemed the proximate cause of the injury. "[A] tortfeasor is generally held answerable for the injuries which result in the ordinary course of events from his negligence and it is generally sufficient if his negligent conduct was a substantial factor in bringing about the injuries." Rappaport, supra, 31 N.J. at 203, 156 A.2d 1; see Ettin v. Ava Truck Leasing Inc., 53 N.J. 463, 483, 251 A.2d 278 (1969) (parking tractor-trailer across street is substantial factor in cause of accident when truck with failed brakes collides into trailer).

Under the facts here defendant provided his guest with liquor, knowing that thereafter the guest would have to drive in order to get home. Viewing the facts most favorably to plaintiff (as we must, since the complaint was dismissed on a motion for summary judgment), one could reasonably conclude that the Zaks must have known that their provision of liquor was causing Gwinnell to become drunk, yet they continued [476 A.2d 1222] to serve him even after he was visibly intoxicated. By the time he [96 N.J. 544] left, Gwinnell was in fact severely intoxicated. A reasonable person in Zak's position could foresee quite clearly that this continued provision of alcohol to Gwinnell was making it more and more likely that Gwinnell would not be able to operate his car carefully. Zak could foresee that unless he stopped providing drinks to Gwinnell, Gwinnell was likely to injure someone as a result of the negligent operation of his car. The usual elements of a cause of action for negligence are clearly present: an action by defendant creating an unreasonable risk of harm to plaintiff, a risk that was clearly foreseeable, and a risk that resulted in an injury equally foreseeable. Under those circumstances the only question remaining is whether a duty exists to prevent such risk or, realistically, whether this Court should impose such a duty.

In most cases the justice of imposing such a duty is so clear that the cause of action in negligence is assumed to exist simply on the basis of the actor's creation of an unreasonable risk of foreseeable harm resulting in injury. In fact, however, more is needed, "more" being the value judgment, based on an analysis of public policy, that the actor owed the injured party a duty of reasonable care. Palsgraf v. Long Island R.R. Co., 248 N.Y. 339, 162 N.E. 99 (1928). In Goldberg v. Housing Auth. of Newark, 38 N.J. 578, 583, 186 A.2d 291 (1962), this Court explained that "whether a duty exists is ultimately a question of fairness. The inquiry involves a weighing of the relationship of the parties, the nature of the risk, and the public interest in the proposed solution." See also Portee v. Jaffee, 84 N.J. 88, 101, 417 A.2d 521 (1980) (whether liability for negligently inflicted emotional harm should be expanded depends "ultimately" on balancing of conflicting interests involved).

When the court determines that a duty exists and liability will be extended, it draws judicial lines based on fairness and policy. In a society where thousands of deaths are caused each [96 N.J. 545] year by drunken drivers,^[3] where the damage caused by such deaths is regarded increasingly as intolerable, where liquor licensees are prohibited from serving intoxicated adults, and where long-standing criminal sanctions against drunken driving have recently been significantly strengthened to the point where the Governor notes that they are regarded as the toughest in the nation, see Governor's Annual Message to the N.J. State Legislature, Jan. 10, 1984, the imposition of such a duty by the judiciary seems both fair and fully in accord with the State's policy. Unlike those cases in which the definition of desirable policy is the subject of intense controversy, here the imposition of a duty is both consistent with and supportive of a social goal--the reduction of drunken driving--that is practically unanimously accepted by society.

While the imposition of a duty here would go beyond our prior decisions, those decisions not only point clearly in that direction but do so despite the presence of social considerations similar to those involved in this case--considerations that are claimed to invest the host with immunity. In our first case on the subject, Rappaport, supra, 31 N.J. 188, 156 A.2d 1, we held a licensee liable for the consequences of a customer's negligent operation of his automobile. The customer was a minor [476 A.2d 1223] who had become intoxicated as a result of the consumption of liquor at various premises including the licensee's. While observing that a standard [96 N.J. 546] of conduct was contained in the statute prohibiting licensees from serving liquor to minors and in the regulation further prohibiting service to any person actually or apparently intoxicated, our decision that the licensee owed a duty to members of the general public was based on principles of common-law negligence.^[4]

We later made it clear that the licensee's duty is owed to the customer as well, by holding in Soronen v. Olde Milford Inn, Inc., 46 N.J. 582, 218 A.2d 630 (1966), that the licensee who served liquor to an intoxicated customer was liable to that customer for the death that resulted when the customer fell in the licensed premises while leaving the bar. While the situation of a licensee differs in some respects from that of a social host, some of the same underlying considerations relied on here in disputing liability are present in both: the notion that the real fault is that of the drunk, not the licensee, especially where the drinker is an adult (as he was in Soronen ); and the belief--not as strong when applied to licensed premises as when applied to one's home--that when people get together for a friendly drink or more, the social relationships should not be intruded upon by possibilities of litigation.

The Appellate Division moved our decisional law one step further, a significant step, when it ruled in Linn v. Rand, 140 N.J.Super. 212, 356 A.2d 15 (1976), that a social host who serves liquor to a visibly intoxicated minor, knowing the minor will thereafter drive, may be held liable for the injuries inflicted on a third party as a result of the subsequent drunken driving of the minor. There, practically all of the considerations urged here against liability were present: it was a social setting at someone's home, not at a tavern; the one who provided the liquor to the intoxicated minor was a host, not a licensee; and all of the notions of fault and causation pinning sole responsibility on the [96 N.J. 547] drinker were present. The only difference was that the guest was a minor--but whether obviously so or whether known to the host is not disclosed in the opinion.^[5]

In Rappaport, we explicitly noted that the matter did not involve any claim against "persons not engaged in the liquor business." 31 N.J. at 205, 156 A.2d 1. We now approve Linn with its extension of this liability to social hosts. In expanding liability, Linn followed the rationale of Rappaport that the duty involved is a common law duty, not one arising from the statute and regulation prohibiting sales of liquor to a minor, neither of which applies to a social host.^[6] Cf. Congini v. Portersville Valve Co., ---Pa. ---, ---, 470 A.2d 515, 517-18 (1983) (in which the Pennsylvania Supreme Court relied exclusively on statutes criminalizing the provision of alcohol to minors as the basis for extending liability to a social host). The fair implication of Rappaport and Soronen, that the duty exists independent of the statutory prohibition, was thus made explicit in Linn. As the court there noted: "It makes little sense to say that the licensee in Rappaport is under a duty to exercise care, but give immunity to a social host who may be guilty of the same wrongful conduct merely [476 A.2d 1224] because he is unlicensed." 140 N.J.Super. at 217, 356 A.2d 15.^[7]

The argument is made that the rule imposing liability on licensees is justified because licensees, unlike social hosts, [96 N.J. 548] derive a profit from serving liquor. We reject this analysis of the liability's foundation and emphasize that the liability proceeds from the duty of care that accompanies control of the liquor supply. Whatever the motive behind making alcohol available to those who will subsequently drive, the provider has a duty to the public not to create foreseeable, unreasonable risks by this activity.

We therefore hold that a host who serves liquor to an adult social guest, knowing both that the guest is intoxicated and will thereafter be operating a motor vehicle, is liable for injuries inflicted on a third party as a result of the negligent operation of a motor vehicle by the adult guest when such negligence is caused by the intoxication. We impose this duty on the host to the third party because we believe that the policy considerations served by its imposition far outweigh those asserted in opposition. While we recognize the concern that our ruling will interfere with accepted standards of social behavior; will intrude on and somewhat diminish the enjoyment, relaxation, and camaraderie that accompany social gatherings at which alcohol is served; and that such gatherings and social relationships are not simply tangential benefits of a civilized society but are regarded by many as important, we believe that the added assurance of just compensation to the victims of drunken driving as well as the added deterrent effect of the rule on such driving outweigh the importance of those other values. Indeed, we believe that given society's extreme concern about drunken driving, any change in social behavior resulting from the rule will be regarded ultimately as neutral at the very least, and not as a change for the worse; but that in any event if there be a loss, it is well worth the gain.^[8]

[96 N.J. 549] The liability we impose here is analogous to that traditionally imposed on owners of vehicles who lend their cars to persons they know to be intoxicated. Knight v. Gosselin, 124 Cal.App. 290, 12 P.2d 454 (Dist.Ct.App.1932); Harris v. Smith, 119 Ga.App. 306, 167 S.E.2d 198 (Ct.App.1969); Pennington v. Davis-Child Motor Co., 143 Kan. 753, 57 P.2d 428 (1936); Deck v. Sherlock, 162 Neb. 86, 75 N.W.2d 99 (1956); Mitchell v. Churches, 119 Wash. 547, 206 P. 6 (1922). If, by lending a car to a drunk, a host becomes liable to third parties injured by the drunken driver's negligence, the same liability should extend to a host [476 A.2d 1225] who furnishes liquor to a visibly drunken guest who he knows will thereafter drive away.

Some fear has been expressed that the extent of the potential liability may be disproportionate to the fault of the host. A social judgment is therein implied to the effect that society does not regard as particularly serious the host's actions in causing his guests to become drunk, even though he knows they will thereafter be driving their cars. We seriously question that value judgment; indeed, we do not believe that the liability is disproportionate when the host's actions, so relatively easily [96 N.J. 550] corrected, may result in serious injury or death. The other aspect of this argument is that the host's insurance protection will be insufficient. While acknowledging that homeowners' insurance will cover such liability,^[9] this argument notes the risk that both the host and spouse will be jointly liable. The point made is not that the level of insurance will be lower in relation to the injuries than in the case of other torts, but rather that the joint liability of the spouses may result in the loss of their home and other property to the extent that the policy limits are inadequate.^[10] If only one spouse were liable, then even though the policy limits did not cover the liability, the couple need not lose their home because the creditor might not reach the interest of the spouse who was not liable. Newman v. Chase, 70 N.J. 254, 266, 359 A.2d 474 (1976); King v. Greene, 30 N.J. 395, 153 A.2d 49 (1959); ESB, Inc. v. Fisher, 185 N.J.Super. 373, 448 A.2d 1030 (Ch.Div.1982). We observe, however, that it is common for both spouses to be liable in automobile accident cases. It may be that some special form of insurance could be designed to protect the spouses' equity in their homes in cases such as this one. In any event, it is not clear that the loss of a home by spouses who, by [96 N.J. 551] definition, have negligently caused the injury, is disproportionate to the loss of life of one who is totally innocent of any wrongdoing. Given the lack of precedent anywhere else in the country, however, we believe it would be unfair to impose this liability retroactively. Merenoff v. Merenoff, 76 N.J. 535, 388 A.2d 951 (1978); Darrow v. Hanover Twp., 58 N.J. 410, 278 A.2d 200 (1971); Willis v. Department of Conservation & Economic Dev., 55 N.J. 534, 264 A.2d 34 (1970). Homeowners who are social hosts may desire to increase their policy limits; apartment dwellers may want to obtain liability insurance of this kind where perhaps they now have none. The imposition of retroactive liability could be considered unexpected and its imposition unfair. We therefore have determined that the liability imposed by this case on social hosts shall be prospective, applicable only to events that occur after the date of this decision. We will, however, apply the doctrine to the parties before us on the usual theory that to do otherwise would not only deprive the plaintiff of any benefit resulting from her own efforts but would also make it less likely that, in the future, individuals [476 A.2d 1226] will be willing to claim rights, not yet established, that they believe are just.

The goal we seek to achieve here is the fair compensation of victims who are injured as a result of drunken driving. The imposition of the duty certainly will make such fair compensation more likely. While the rule in this case will tend also to deter drunken driving, there is no assurance that it will have any significant effect. The lack of such assurance has not prevented us in the past from imposing liability on licensees. Indeed, it has been only recently that the sanction of the criminal law was credited with having some significant impact on drunken driving.^[11] We need not, however, condition the [96 N.J. 552] imposition of a duty on scientific proof that it will result in the behavior that is one of its goals. No one has suggested that the common-law duty to drive carefully should be abolished because it has apparently not diminished the mayhem that occurs regularly on our highways. We believe the rule will make it more likely that hosts will take greater care in serving alcoholic beverages at social gatherings so as to avoid not only the moral responsibility but the economic liability that would occur if the guest were to injure someone as a result of his drunken driving.

We do not agree that the issue addressed in this case is appropriate only for legislative resolution. Determinations of the scope of duty in negligence cases has traditionally been a function of the judiciary. The history of the cases cited above evidences a continuing judicial involvement in these matters. Without the benefit of any Dram Shop Act imposing liability on licensees, legislation that is quite common in other states, this Court determined that such liability nevertheless existed.^[12] We [96 N.J. 553] did so in 1959 and have continued to expand that concept since then. We know of no legislative activity during that entire period from 1959 to date suggesting that our involvement in these matters was deemed inappropriate; even after the judiciary expanded this liability to include social hosts in its decision in Linn, there was no adverse reaction on the part of the Legislature. In fact, the Legislature's passage of S. 1054, imposing criminal liability on anyone who purposely or knowingly serves alcoholic beverages to underage persons, indicates that body's approval of the position taken eight years earlier in Linn. The subject matter is not abstruse, and it can safely be assumed that the Legislature is in fact aware of our decisions in this area. Absent such adverse reaction, we assume that our decisions are found to be consonant with the strong legislative policy against drunken driving.

[476 A.2d 1227] The dissent relies on two related grounds in concluding this matter should be resolved by legislation: the superior knowledge of the legislature obtained through hearings and other means enabling it better to balance the interests involved and to devise an appropriate remedy, and the ruling's potential "extraordinary effects on the average citizen." Post at 1231. Many of the cases cited in support of this view, however, are from jurisdictions in which a Dram Shop Act was in effect and are therefore clearly distinguishable. Kowal v. Hofher, 181 Conn. 355, 436 A.2d 1 (1980); Miller v. Moran, 96 Ill.App.3d 596, 52 Ill.Dec. 183, 421 N.E.2d 1046 (1981); Behnke v. Pierson, 21 Mich.App. 219, 175 N.W.2d 303 (Ct.App.1970); Cole v. City of Spring Lake Park, 314 N.W.2d 836 (Minn.1982); Schirmer v. Yost, 60 A.D.2d 789, 400 N.Y.S.2d 655 (App.Div.1977); Edgar v. Kajet, 84 Misc.2d 100, 375 N.Y.S.2d 548 (Sup.Ct.1975), aff'd, 55 A.D.2d 597, 389 N.Y.S.2d 631 (App.Div.1976).

[96 N.J. 554] Whether mentioned or not in these opinions, the very existence of a Dram Shop Act constitutes a substantial argument against expansion of the legislatively-mandated liability. Very simply, when the Legislature has spoken so specifically on the subject and has chosen to make only licensees liable, arguably the Legislature did not intend to impose the same liability on hosts. See, e.g., Edgar, 375 N.Y.S.2d at 551-52. We note, furthermore, that in several of the cited cases, post at 1231-1232, the courts' denial of relief was not solely the result of deference to the legislature; the courts also treated the question (of whether the host was liable) as one appropriate for judicial determination. Kowal v. Hofher, 181 Conn. at 357, 436 A.2d at 2; Behnke v. Pierson, 21 Mich.App. at 221, 175 N.W.2d at 304; Schirmer v. Yost, 60 A.D.2d at 789, 400 N.Y.S.2d at 656.^[13]

In only four of the jurisdictions cited in the dissent did the courts rule, despite the absence of a Dram Shop Act, that a host should not be liable. Cartwright v. Hyatt Corp., 460 F.Supp. 80, 82 (D.D.C.1978); Runge v. Watts, 180 Mont. 91, 589 P.2d 145 (1979); Klein v. Raysinger, --- Pa. ---, 470 A.2d 507 (1983); Manning v. Andy, 454 Pa. 237, 310 A.2d 75 (1973); Halvorson v. Birchfield Boiler, Inc., 76 Wash.2d 759, 458 P.2d 897 (1969).

Whether our ruling will have such an "extraordinary" impact on "the average citizen" in his or her social and business relations (presumably the premise for the conclusion that judicial action is inappropriate) depends to some extent on an initial evaluation of the matter. We suspect some of the extraordinary change is already taking place, that it is not unusual today for hosts to monitor their guests' drinking to some extent. [96 N.J. 555] Furthermore, the characterization of the change as one demanding prior legislative study and warranting action only after such, implies that its effects on balance may be seriously adverse. Given our firm belief that insurance is available, that compensation of innocent victims is desirable, and that the added deterrence against drunken driving is salutary, we do not perceive the potential revision of cocktail-party customs as constituting a sufficient threat to social well-being to warrant staying our hand. Obviously the Legislature may disagree.

This Court has decided many significant issues without any prior legislative study. In any event, if the Legislature differs with us on issues of this kind, it has a clear remedy. See, e.g., Van Horn v. Blanchard Co., 88 N.J. 91, 438 A.2d 552 (1981) (holding that under Comparative Negligence Act, a plaintiff could recover only from those defendants that were more negligent than was the plaintiff); N.J.S.A. 2A:15-5.1 as amended by L. 1982, c. 191 [476 A.2d 1228] § 1 eff. Dec. 6, 1982 (under which a plaintiff may recover from all defendants if plaintiff's negligence is less than or equal to the combined negligence of all defendants); Willis v. Department of Conservation and Economic Dev., 55 N.J. 534, 264 A.2d 34 (1970) (abolishing the State's sovereign immunity from tort claims), N.J.S.A. 59:1-1 et seq., L. 1972, c. 45 (reestablishing and defining immunity for all New Jersey governmental bodies); Dalton v. St. Luke's Catholic Church, 27 N.J. 22, 141 A.2d 273 (1958), Collopy v. Newark Eye & Ear Infirmary, 27 N.J. 29, 141 A.2d 276 (1958), Benton v. Y.M.C.A., 27 N.J. 67, 141 A.2d 298 (1958) (abolishing charitable immunity), N.J.S.A. 2A:53A-7, L. 1959, c. 90 (reestablishing charitable immunity); cf. Immer v. Risko, 56 N.J. 482, 267 A.2d 481 (1970) (abolishing interspousal immunity in automobile negligence cases); France v. A.P.A. Transport Corp., 56 N.J. 500, 267 A.2d 490 (1970) (abolishing parent-child immunity in automobile negligence cases) (no subsequent legislative action on issue of familial immunity).

We are satisfied that our decision today is well within the competence of the judiciary. Defining the scope of tort liability has traditionally been accepted as the responsibility of the courts. Indeed, given the courts' prior involvement in these [96 N.J. 556] matters, our decision today is hardly the radical change implied by the dissent but, while significant, is rather a fairly predictable expansion of liability in this area.^[14]

It should be noted that the difficulties posited by the dissent as to the likely consequence of this decision are purely hypothetical. Given the facts before us, we decide only that where the social host directly serves the guest and continues to do so even after the guest is visibly intoxicated, knowing that the guest will soon be driving home, the social host may be liable for the consequences of the resulting drunken driving. We are not faced with a party where many guests congregate, nor with guests serving each other, nor with a host busily occupied with other responsibilities and therefore unable to attend to the matter of serving liquor, nor with a drunken host. Post at 1234. We will face those situations when and if they come before us, we hope with sufficient reason and perception so as to balance, if necessary and if legitimate, the societal interests alleged to be inconsistent with the public policy considerations that are at the heart of today's decision. The fears expressed by the dissent concerning the vast impact of the decision on the [96 N.J. 557] "average citizen's" life are reminiscent of those asserted in opposition to our decisions abolishing husband-wife, parent-child, and generally family immunity in France v. A.P.A. Transport Corp., 56 N.J. at 500, 267 A.2d 490, and Immer v. Risko, 56 N.J. at 482, 267 A.2d 481. In Immer, proponents of interspousal immunity claimed that abandoning it would disrupt domestic harmony and encourage possible fraud and collusion against insurance companies. 56 N.J. at 488, 267 A.2d 481. In France, it was predicted that refusal to apply the parent-child immunity would lead to depletion of the family exchequer [476 A.2d 1229] and interfere with parental care, discipline and control. 56 N.J. at 504, 267 A.2d 490. As we noted there, "[w]e cannot decide today any more than what is before us, and the question of what other claims should be entertained by our courts must be left to future decisions." Immer, 56 N.J. at 495, 267 A.2d 490. Some fifteen years have gone by and, as far as we can tell, nothing but good has come as a result of those decisions.

We recognize, however, that the point of view expressed by the dissent conforms, at least insofar as the result is concerned, with the view, whether legislatively or judicially expressed, of practically every other jurisdiction that has been faced with this question. It seems to us that by now it ought to be clear to all that the concerns on which that point of view is based are minor compared to the devastating consequences of drunken driving. This is a problem that society is just beginning to face squarely, and perhaps we in New Jersey are doing so sooner than others.

For instance, the dissent's emphasis on the financial impact of an insurance premium increase on the homeowner or the tenant should be measured against the monumental financial losses suffered by society as a result of drunken driving. By our decision we not only spread some of that loss so that it need not be borne completely by the victims of this widespread affliction, but, to some extent, reduce the likelihood that the loss will occur in the first place. Even if the dissent's view of the scope of our decision were correct, the adjustments in social behavior at parties, the burden put on the host to reasonably oversee the serving of liquor, the burden on the guests to make [96 N.J. 558] sure if one is drinking that another is driving, and the burden on all to take those reasonable steps even if, on some occasion, some guest may become belligerent: those social dislocations, their importance, must be measured against the misery, death, and destruction caused by the drunken driver. Does our society morally approve of the decision to continue to allow the charm of unrestrained social drinking when the cost is the lives of others, sometimes of the guests themselves?

If we but step back and observe ourselves objectively, we will see a phenomenon not of merriment but of cruelty, causing misery to innocent people, tolerated for years despite our knowledge that without fail, out of our extraordinarily high number of deaths caused by automobiles, nearly half have regularly been attributable to drunken driving. See supra, at 1222 n. 3. Should we be so concerned about disturbing the customs of those who knowingly supply that which causes the offense, so worried about their costs, so worried about their inconvenience, as if they were the victims rather than the cause of the carnage? And while the dissent is certainly correct that we could learn more through an investigation, to characterize our knowledge as "scant" or insufficient is to ignore what is obvious, and that is that drunken drivers are causing substantial personal and financial destruction in this state and that a goodly number of them have been drinking in homes as well as taverns. Does a court really need to know more? Is our rule vulnerable because we do not know--nor will the Legislature--how much injury will be avoided or how many lives saved by this rule? Or because we do not know how many times the victim will require compensation from the host in order to be made whole?

This Court senses that there may be a substantial change occurring in social attitudes and customs concerning drinking, whether at home or in taverns. We believe that this change may be taking place right now in New Jersey and perhaps elsewhere. It is the upheaval of prior norms by a society that has finally recognized that it must change its habits and do [96 N.J. 559] whatever is required, whether it means but a small change or a significant one, in order to stop the senseless loss inflicted by drunken drivers. We did not cause that movement, but we believe this decision is in step with it.

[476 A.2d 1230] We are well aware of the many possible implications and contentions that may arise from our decision. We express no opinion whatsoever on any of these matters but confine ourselves strictly to the facts before us. We hold only that where a host provides liquor directly to a social guest and continues to do so even beyond the point at which the host knows the guest is intoxicated, and does this knowing that the guest will shortly thereafter be operating a motor vehicle, that host is liable for the foreseeable consequences to third parties that result from the guest's drunken driving. We hold further that the host and guest are liable to the third party as joint tortfeasors, Malone v. Jersey Central Power & Light Co., 18 N.J. 163, 171, 113 A.2d 13 (1955); Ristan v. Frantzen, 14 N.J. 455, 460, 102 A.2d 614 (1954); Matthews v. Delaware, L. & W. R.R., 56 N.J.L. 34, 27 A. 919 (Sup.Ct.1893), without implying anything about the rights of the one to contribution or indemnification from the other. See supra at 1224 n. 8.

Our ruling today will not cause a deluge of lawsuits or spawn an abundance of fraudulent and frivolous claims. Not only do we limit our holding to the situation in which a host directly serves a guest, but we impose liability solely for injuries resulting from the guest's drunken driving. Cf. Immer, 56 N.J. at 482, 267 A.2d 481 (interspousal immunity abandoned only in actions arising out of negligent operation of automobiles). Automobile accidents are thoroughly investigated by law enforcement officers; careful inquiries are routinely made as to whether the drivers and occupants are intoxicated. The availability of clear objective evidence establishing intoxication will act to weed out baseless claims and to prevent this cause of action from being used as a tool for harassment.

[96 N.J. 560] We therefore reverse the judgment in favor of the defendants Zak and remand the case to the Law Division for proceedings consistent with this opinion.

GARIBALDI, J., dissenting.

Today, this Court holds that a social host who knowingly enables an adult guest to become intoxicated knowing that the guest will operate a motor vehicle is liable for damages to a third party caused by the intoxicated guest. The imposition of this liability on a social host places upon every citizen of New Jersey who pours a drink for a friend a heavy burden to monitor and regulate guests. It subjects the host to substantial potential financial liability that may be far beyond the host's resources.

My position as a strong advocate of legal measures to combat drunk driving is established. See In re Kallen, 92 N.J. 14, 455 A.2d 460 (1983). The majority need not parade the horrors that have been caused by drunk drivers to convince me that there is always room for stricter measurers against intoxicated drivers. I too am concerned for the injured victim of a drunken driver. However, the almost limitless implications of the majority's decision lead me to conclude that the Legislature is better equipped to effectuate the goals of reducing injuries from drunken driving and protecting the interests of the injured party, without placing such a grave burden on the average citizen of this state.

I

Prior to today's decision, this Court had imposed liability only on those providers of alcoholic beverages who were licensed by the State. See Rappaport v. Nichols, 31 N.J. 188, 156 A.2d 201 (1959). The Appellate Division also had expanded the liability to a social host who served liquor to a minor. Lind v. Rand, 140 N.J.Super. [96 N.J. 561] 212, 356 A.2d 15 (App.Div.1976).^[1] Although [476 A.2d 1231] both of these cases were based on common-law negligence, the courts deemed the regulations restricting the service of alcohol to minors significant enough evidence of legislative policy to impart knowledge of foreseeable risk on the provider of the alcohol and to fashion a civil remedy for negligently creating that risk.

Many other states have considered the problem before us today but no judicial decision establishing a cause of action against a social host for serving liquor to an adult social guest is currently in force. Any prior judicial attempts to establish such a cause of action have been abrogated or restricted by subsequent legislative action. See, e.g., Cal.Civ.Code § 1714 (as amended Stats.1978, ch. 929, § 2, p. 2904); Or.Rev.Stat. § 30.955 (1979).

State courts have found that imposition of this new form of liability on social hosts is such a radical departure from prior law, with such extraordinary effects on the average citizen, that the issue is best left to a legislative determination. See Kowal v. Hofher, 181 Conn. 355, 436 A.2d 1 (1980); Miller v. Moran, 96 Ill.App.3d 596, 52 Ill.Dec. 183, 421 N.E.2d 1046 (1981); Behnke v. Pierson, 21 Mich.App. 219, 175 N.W.2d 303 [96 N.J. 562] (1970); Cole v. City of Spring Lake Park, 314 N.W.2d 836 (Minn.1982); Runge v. Watts, 180 Mont. 91, 589 P.2d 145 (1979); Hamm v. Carson City Nugget, Inc., 85 Nev. 99, 450 P.2d 358 (1969); Schirmer v. Yost, 60 A.D.2d 789, 400 N.Y.S.2d 655 (1977); Edgar v. Kajet, 84 Misc.2d 100, 375 N.Y.S.2d 548 (Sup.Ct.1975), aff'd, 55 A.D.2d 597, 389 N.Y.S.2d 631 (1976); Klein v. Raysinger, supra, ---Pa. ---, 470 A.2d 507; Halvorson v. Birchfield Boiler, Inc., 76 Wash.2d 759, 458 P.2d 897 (1969).

I agree with the holdings of our sister states and with their misgivings about the judicial imposition of the duty that the majority today places on social hosts. Their conclusions, and the unanimity with which they express them, are instructive.

In Olsen v. Copeland, 90 Wis.2d 483, 491, 280 N.W.2d 178, 181 (1979), the Supreme Court of Wisconsin said:

A change in the law which has the power to so deeply affect social and business relationships should only be made after a thorough analysis of all the relevant considerations. * * * The type of analysis required is best conducted by the legislature using all of the methods it has available to it to invite public participation.

Similarly, in Edgar v. Kajet, supra, 84 Misc.2d at 103, 375 N.Y.S.2d at 552, the New York Supreme Court, Appellate Division, stated:

The implications of imposing civil liability on Avis herein are vast and far-reaching. Extending liability to non-sellers would open a virtual Pandora's box to a wide range of numerous potential defendants when the Court does not believe that the legislature ever intended to enact a law that makes social drinking of alcoholic beverages and the giving of drinks of intoxicating liquors at social events actionable. Just a recitation of a few of the considerations involved herein impels this Court to conclude that any extension of liability should be a legislative act. For example, how is a host at a social gathering to know when the tolerance of one of his guests has been reached? To what extent should a host refuse to serve drinks to those nearing the point of intoxication? Further, how is a host to supervise his guests' social activities? The implications are almost limitless as [476 A.2d 1232] to situations that might arise when liquor is dispensed at a social gathering, holiday parties, family celebrations, outdoor barbecues and picnics, to cite a few examples. If civil liability were imposed on Avis herein, it could be similarly imposed on every host who, in a spirit of friendship, serves liquor. In the final analysis, the controlling consideration is public policy, and [96 N.J. 563] any extension of liability should be carefully considered after all the factors have been examined and weighed in our legislative process, that is, after extensive hearings, surveys and investigation.

In Cartwright v. Hyatt Corp., 460 F.Supp. 80, 82 (D.D.C.1978), the Federal District Court for the District of Columbia stated:

Valid policy considerations exist on both sides of this issue, and the Court is not prepared to adopt for the District of Columbia a rule not judicially imposed by any other court in any other jurisdiction. If such a rule is to become a part of District of Columbia law, the decision should appropriately be made by the legislature--as it has been wherever the rule has been adopted.

In Runge v. Watts, supra, 180 Mont. at 94, 589 P.2d at 147, the Supreme Court of Montana stated:

Establishing such a civil cause of action involves considerations of public policy far beyond those presented by the circumstances of the instant case.

In Holmes v. Circo, 196 Neb. 496, 505, 244 N.W.2d 65, 70 (1976), the Supreme Court of Nebraska stated:

We agree * * * that, in the final analysis, the controlling considerations are public policy and whether the court or the Legislature should declare it. We believe that the decision should be left to the Legislature. The Legislature may hold hearings, debate the relevant policy considerations, weigh the testimony, and, in the event it determines a change in the law is necessary or desirable, it can then draft statutes which would most adequately meet the needs of the public in general, while balancing the interest of specific sectors.

In Manning v. Andy, 454 Pa. 237, 239, 310 A.2d 75, 76 (1973), the Supreme Court of Pennsylvania stated:

While appellant's proposal may have merit, we feel that a decision of this monumental nature is best left to the legislature.

II

My reluctance to join the majority is not based on any exaggerated notion of judicial deference to the Legislature. Rather, it is based on my belief that before this Court plunges into this broad area of liability and imposes high duties of care on social hosts, it should carefully consider the ramifications of its actions. The Court acts today with seemingly scant knowledge and little care for the possible negative consequences of its decision.

[96 N.J. 564] The magnitude of the problem with which we are dealing is entirely unknown. As the Illinois Appellate Court noted in Miller v. Moran, supra, 96 Ill.App.3d at 600, 421 N.E.2d at 1049, the injured party normally has a remedy against the direct perpetrator of the injury, the intoxicated driver. The majority's portrayal of the specter of many innocent victims with no chance of recovery against drunk drivers is specious.

The Legislature of this state has enacted a comprehensive auto insurance program to guarantee that those injured on our highways have remedies. Even in cases in which the drunk driver is insolvent and has no insurance, the victim's own automobile insurance policy is required by law, N.J.S.A. 17:28-1.1, to include coverage for all or part of the sums that the insured "shall be legally entitled to recover as damages from owners or operators of uninsured automobiles * * *." Furthermore, all motorists must have uninsured motorist coverage. N.J.S.A. 39:6A-14. If the drunk driver hits an uninsured pedestrian, the pedestrian, [476 A.2d 1233] after obtaining a judgment, and unsuccessfully attempting to satisfy it, could satisfy the judgment out of the Unsatisfied Claim and Judgment Fund. N.J.S.A. 39:6-73. Thus, only in the situation in which a victim of a drunk driver is himself an uninsured motorist at the time of the injury will the victim have no remedy under our insurance laws. There, the victim, having broken the law by driving without insurance, is not entitled to collect from the Unsatisfied Claim and Judgment Fund.

I do not know whether the Legislature's insurance scheme provides adequate protection for victims of drunk drivers and whether further relief may be necessary. I have seen no statistics to indicate the extent of this problem. However, the Legislature can collect information indicating the number of victims of drunk drivers who have not been adequately compensated. These statistics would be significant factors in ascertaining the scope of the problem and in creating solutions that would protect the injured party without excessively burdening the average citizen.

[96 N.J. 565] As stated earlier in this dissent, this Court has, in the past, imposed civil liability on commercial licensees who serve alcoholic beverages to intoxicated patrons. Commercial licensees are subject to regulation by both the Alcoholic Beverage Commission (ABC) and the Legislature. It is reasonable to impose tort liability on licensees based on their violation of explicit statutes and regulations.

I have no quarrel with the imposition of such liability because of the peculiar position occupied by the licensee. A social host, however, is in a different position. A brief discussion of the dissimilarities between the licensee and the private social host will illustrate the many problems this Court is creating by refusing to distinguish between the two in imposing liability upon them.

A significant difference between an average citizen and a commercial licensee is the average citizen's lack of knowledge and expertise in determining levels and degrees of intoxication. Licensed commercial providers, unlike the average citizen, deal with the alcohol-consuming public every day. This experience gives them some expertise with respect to intoxication that social hosts lack. A social host will find it more difficult to determine levels and degrees of intoxication.

The majority holds that a host will be liable only if he serves alcohol to a guest knowing both that the guest is intoxicated and that the guest will drive. Ante at 1224. Although this standard calls for a subjective determination of the extent of the host's knowledge, a close reading of the opinion makes clear that the majority actually is relying on objective evidence. The majority takes the results of Gwinnell's blood alcohol concentration test and concludes from that test that "the Zaks must have known that their provision of liquor was causing Gwinnell to become drunk * * *." Ante at 1221.

Whether a guest is or is not intoxicated is not a simple issue. Alcohol affects everyone differently. "[T]he precise effects of a particular concentration of alcohol in the blood varies from [96 N.J. 566] person to person depending upon a host of other factors. See generally Perr, 'Blood Alcohol Levels and "Diminished Capacity",' 3 (No. 4) J. Legal Med. 28-30 (April 1975)." State v. Stasio, 78 N.J. 467, 478 n. 5, 396 A.2d 1129 (1979). One individual can consume many drinks without exhibiting any signs of intoxication. Alcohol also takes some time to get into the bloodstream and show its outward effects. Experts estimate that it takes alcohol twenty to thirty minutes to reach its highest level in the bloodstream. See American Medical Association, Alcohol and the Impaired Driver (1968). Thus, a blood alcohol concentration test demonstrating an elevated blood alcohol level after an accident may not mean that the subject was obviously intoxicated when he left the party some time earlier. "Moreover, a state of obvious intoxication is a condition that is very susceptible to after the fact interpretations, i.e., objectivereview [476 A.2d 1234] of a subjective decision. These factors combine to make the determination that an individual is obviously intoxicated not so obvious after all." Comment, "Social Host Liability for Furnishing Alcohol: A Legal Hangover?" 1978 Pac.L.J. 95, 103. Accordingly, to impose on average citizens a duty to comprehend a person's level of intoxication and the effect another drink would ultimately have on such person is to place a very heavy burden on them.

The nature of home entertaining compounds the social host's difficulty in determining whether a guest is obviously intoxicated before serving the next drink. In a commercial establishment, there is greater control over the liquor; a bartender or waitress must serve the patron a drink. Not so in a home when entertaining a guest. At a social gathering, for example, guests frequently serve themselves or guests may serve other guests. Normally, the host is so busy entertaining he does not have time to analyze the state of intoxication of the guests. Without constant face-to-face contact it is difficult for a social host to avoid serving alcohol to a person on the brink of intoxication. Furthermore, the commercial bartender usually does not drink on the job. The social host often drinks with the [96 N.J. 567] guest, as the Zaks did here. The more the host drinks, the less able he will be to determine when a guest is intoxicated. It would be anomalous to create a rule of liability that social hosts can deliberately avoid by becoming drunk themselves.

The majority suggests that my fears about imposition of liability on social hosts who are not in a position to monitor the alcohol consumption of their guests are "purely hypothetical" in that the present case involves a host and guest in a one-to-one situation. It is unrealistic to assume that the standards set down by the Court today will not be applied to hosts in other social situations. Today's holding leaves the door open for all of the speculative and subjective impositions of liability that I fear.

A more pressing distinction between the social host and commercial licensees is the host's inability to fulfill the duty the majority has imposed even if the host knows that a particular guest is intoxicated. It is easy to say that a social host can just refuse to serve the intoxicated person. However, due to a desire to avoid confrontation in a social environment, this may become a very difficult task. It is much easier in a detached business relationship for a bartender to flag a patron and either refuse to serve him or ask him to leave. We should not ignore the social pressures of requiring a social host to tell a boss, client, friend, neighbor, or family member that he is not going to serve him another drink. Moreover, a social host does not have a bouncer or other enforcer to prevent difficulties that may arise when requesting a drunk to stop drinking or not to drive home. We have all heard of belligerent drunks.

Further, it is not clear from the Court's opinion to what lengths a social host must go to avoid liability. Is the host obligated to use physical force to restrain an intoxicated guest from drinking and then from driving? Or is the host limited to delay and subterfuge tactics short of physical force? What is the result when the host tries to restrain the guest but fails? [96 N.J. 568] Is the host still liable? The majority opinion is silent on the extent to which we must police our guests.

III

The most significant difference between a social host and a commercial licensee, however, is the social host's inability to spread the cost of liability. The commercial establishment spreads the cost of insurance against liability among its customers. The social host must bear the entire cost alone. While the majority briefly discusses this issue, noting that it may result in a catastrophic loss of a home to a husband and wife, it apparently does not consider this much of a problem to the average New Jersey citizen. It assumes that such [476 A.2d 1235] liability is now covered or will be covered under the homeowner's insurance policy.

The majority cites no authority for its belief that actions against social hosts will be covered under homeowner's insurance. This new cause of action will be common and may result in large awards to third parties. Even if it is assumed that homeowner's insurance will cover this cause of action, it is unrealistic to believe that insurance companies will not raise their premiums in response to it.

Furthermore, many homeowners and apartment renters may not even have homeowner's insurance and probably cannot afford it. Other homeowners may not have sufficient insurance to cover the limitless liability that the Court seeks to impose. These people may lose everything they own if they are found liable as negligent social hosts under the Court's scheme. The individual economic cost to every New Jersey citizen should be weighed before today's result is reached.

The majority cites several cases in which this Court took action without prior legislative study or approval and was subsequently reversed by the Legislature. Ante at 1227-1228. I take no solace in the fact that the Legislature may reverse today's decision if it disagrees with the Court's action.

[96 N.J. 569] There are obviously instances in which this Court must take action in the absence of legislative guidance. Burlington Cty. NAACP v. Mount Laurel Tp., 92 N.J. 158, 212-13, 456 A.2d 390 (1983) (Mount Laurel II), is a perfect example of this kind of decision. In Mount Laurel II this Court felt compelled to act to protect the constitutional rights of citizens against discriminatory zoning where the Legislature had failed to act.

Here the Legislature has not, by refusing to act, forced this Court to fashion a remedy. Although it is true, as the majority points out, that New Jersey has no Dram Shop Statute, our Legislature and the ABC have been particularly active and diligent in creating duties and remedies to protect the public from drunk drivers.

Recently, our Legislature has enacted laws making New Jersey the unchallenged leader in the national crackdown on drunken driving. Evidence that the Legislature is still vitally interested in the area of drunken driving is Senate Bill S-1054, recently passed by the Senate and Assembly. It provides a criminal penalty for a social host who serves alcohol to a minor. The absence of any similar imposition of criminal liability on social hosts who serve adult guests should be instructive as to the Legislature's intent on the matter before the Court.

IV

In conclusion, in trivializing these objections as "cocktail party customs", ante at 1230 and "inconvenience", ante at 1227, the majority misses the point. I believe that an indepth review of this problem by the Legislature will result in a solution that will further the goals of reducing injuries related to drunk driving and adequately compensating the injured party, while imposing a more limited liability on the social host. Imaginative legislative drafting could include: funding a remedy for the injured party by contributions from the parties most responsible for the harm caused, the intoxicated motorists; making the social host secondarily liable by requiring a judgment [96 N.J. 570] against the drunken driver as a prerequisite to suit against the host; limiting the amount that could be recovered from a social host; and requiring a finding of wanton and reckless conduct before holding the social host liable.

I do not propose to fashion a legislative solution. That is for the Legislature. I merely wish to point out that the Legislature has a variety of alternatives to this Court's imposition of unlimited liability on every New Jersey adult. Perhaps, after investigating all the options, the Legislature will determine that the most effective course is to impose the same civil liability on social hosts that the majority has imposed [476 A.2d 1236] today. I would have no qualms about that legislative decision so long as it was reached after a thorough investigation of its impact on average citizens of New Jersey.

For reversal and remandment --Chief Justice WILENTZ, and Justices CLIFFORD, SCHREIBER, HANDLER, POLLOCK and O'HERN--6.

Opposed --Justice GARIBALDI--1.

[1] Under present law, a person who drives with a blood alcohol concentration of 0.10 percent or more violates N.J.S.A. 39:4-50 as amended by L. 1983, c. 129, the statute concerning driving while under the influence of intoxicating liquor.

[2] The Appellate Division noted that several state court decisions imposing liability against social hosts under circumstances similar to those in this case were abrogated by later legislative action. We note that legislation enacted in Oregon did not abrogate the state court's holding in Wiener v. Gamma Phi Chapter of Alpha Tau Omega Fraternity, 258 Or. 632, 485 P.2d 18 (1971). The court found that a host directly serving liquor to a guest has a duty to refuse to serve the guest when it would be unreasonable under the circumstances to permit the guest to drink. Eight years later the legislature enacted Or.Rev.Stat. § 30.955, limiting a cause of action against a private host for damages incurred or caused by an intoxicated social guest to when the host "has served or provided alcoholic beverages to a social guest when such guest was visibly intoxicated." The legislature did not, therefore, preclude liability of private hosts under a negligence theory but instead decided that the social guest must be visibly intoxicated before the host will be held accountable for injuries caused by the guest's intoxicated conduct.

Nevertheless, we acknowledge that many jurisdictions have declined to extend liability to social hosts in circumstances similar to those present in this case. See, e.g., Klein v. Raysinger, --- Pa. ---, 470 A.2d 507, 510 (1983), and collected cases cited therein.

[3] From 1978 to 1982 there were 5,755 highway fatalities in New Jersey. Alcohol was involved in 2,746 or 47.5% of these deaths. Of the 629,118 automobile accident injuries for the same period, 131,160, or 20.5% were alcohol related. The societal cost for New Jersey alcohol-related highway deaths for this period has been estimated as $1,149,516,000.00, based on statistics and documents obtained from the New Jersey Division of Motor Vehicles. The total societal cost figure for all alcohol-related accidents in New Jersey in 1981 alone, including deaths, personal injuries and property damage was $1,594,497,898.00. New Jersey Division of Motor Vehicles, Safety, Service, Integrity, A Report on the Accomplishments of the New Jersey Division of Motor Vehicles 45 (April 1, 1982 through March 31, 1983). These New Jersey statistics are consistent with nationwide figures. Presidential Commission on Drunk Driving, Final Report 1 (1983).

[4] We noted that the statutory and regulatory violations could properly be considered by a jury as evidence of the licensee's negligence. Rappaport, 31 N.J. at 202-03, 156 A.2d 1.

[5] The case was decided on a motion for summary judgment. The court noted that the record did not indicate the minor's age. The opinion does not rely at all on the host's ability easily to determine the fact that the guest was a minor, a factor relied on to some extent in the arguments seeking to distinguish the present case from Linn.

[6] We note that the Senate and Assembly have recently passed a bill that, if signed into law, would make it a disorderly persons offense knowingly to offer or serve an alcoholic beverage to a person under the legal drinking age. Senate Bill No. S. 1054.

[7] While Linn 's statement of the legal rule does not explicitly go beyond the situation in which the social guest was a minor (140 N.J.Super. at 217, 219, 220, 356 A.2d 15), its reasoning would apply equally to an adult guest.

[8] We note that our holding and the reasoning on which it is based may be regarded as inconsistent with Anslinger v. Martinsville, Inn, Inc., 121 N.J.Super. 525, 298 A.2d 84 (App.Div.1972), certif. den., 62 N.J. 334, 301 A.2d 449 (1973). There, the court refused to impose liability on business associates for the injuries a drunken guest suffered after leaving their social affair. The guest died when the car he was driving rammed into a truck on a highway. That court also ruled that decedent's drunkenness constituted contributory negligence, available to the business (or social) host as a defense (as distinguished from its unavailability where defendant is a licensee; see Soronen, supra, 46 N.J. 582, 218 A.2d 630). We express no opinion on that question, which is not before us since Gwinnell's only claim against Zak is for contribution or indemnification and not for personal injuries. While, as noted infra at 1230, Zak and Gwinnell may be liable as joint tortfeasors as to Kelly, any right of contribution or indemnification between the two will have to be determined by the trial court on remand. That determination presumably will require consideration of the effect, if any, of Soronen, Anslinger, and the Comparative Negligence Act, N.J.S.A. 2A:15-5.1-5.3 (which was not in effect at the time of those decisions).

The Anslinger court also discussed, in dictum, the policy against imposing liability on hosts in social or quasi-business settings. Today, the facts of the case before us persuade us that policy considerations warrant imposing such a duty on a social host. We note also the case of Figuly v. Knoll, 185 N.J.Super. 477, 449 A.2d 564 (Law.Div.1982), which, on facts substantially similar to those before us, held the social host liable.

[9] The dissent challenges our assumption that present homeowners' policies cover the liability imposed by this decision. At oral argument, counsel for both sides indicated that they believe typical homeowners' policies would cover such liability. Even if that is so, however, says the dissent, the homeowner/social host is unable "to spread the cost of liability." Post at 1242. The contrast is then made with the commercial licensee who "spreads the cost of insurance against liability among its or her customers." Id. But the critical issue here is not whether the homeowner can pass the cost on or must bear it himself, but whether tort law should be used to spread the risk over a large segment of society through the device of insurance rather than imposing the entire risk on the innocent victim of drunken driving. Obviously there will be some additional insurance premium at some point that homeowners and renters will have to bear. Their inability to pass that cost on to others, however, is no more persuasive than that same argument would be as to the "average citizen's" automobile liability insurance or, for that matter, for homeowners' insurance as it now exists.

[10] We need not, and do not, reach the question of which spouse is liable, or whether both are liable, and under what circumstances.

[11] Within the last year those laws have been strengthened and officials have stepped up enforcement efforts. Since 1980, the number of drunk driving arrests in New Jersey has increased by approximately 40%. The number of drunk driving deaths has decreased in this State from a high of 376 deaths in 1981 to a reported preliminary total of 270 deaths in 1983. Since the State minimum drinking age was returned to 21 years in 1983, the number of fatal accidents involving people under the age of 21 has dropped significantly. In 1982, drunken drivers between the ages of 18 and 20 were responsible for 67 highway fatalities. Preliminary figures for 1983 show that this age group was responsible for 38 drunk driving deaths that year. There has been a corresponding drop in the number of injuries sustained in accidents involving drunk drivers. New Jersey Division of Motor Vehicles, Safety, Service, Integrity, A Report on the Accomplishments of the New Jersey Division of Motor Vehicles, supra, at 44. Law enforcement officials believe that the decrease in accidents and injuries is attributable to the recent changes in these laws. See Comments of Attorney General, quoted in "Highway Carnage," Herald News, Mar. 13, 1984, p. A-10; Comments of Director, Division of Motor Vehicles, quoted in "Teen Road Carnage Drops Sharply in First Year of Higher Drinking Age," The Star-Ledger, Mar. 8, 1984, p. 1.

[12] Justice Jacobs adverted to this fact in his opinion in Soronen, supra: "Many states have dram shop acts in which the legislature has specifically fixed the scope and extent of the tavern keeper's civil responsibility for injuries which result from his service of alcoholic beverages to an intoxicated person. We have no such act and must therefore deal with the common law principles of negligence and proximate causation." 46 N.J. at 592, 218 A.2d 630.

[13] The dissent's reference to Oregon statutes as abrogating or restricting a prior judicial determination in favor of the cause of action, post at 1231 is incorrect. The Oregon statute accepted the judicial determination similar to that made in this case; its effect, as noted supra at 1221 n. 2, was only to prevent further expansions of liability beyond that allowed by this Court today.

[14] In view of the arguments set forth, the dissent's approval of the decision in Linn is difficult to understand. Post at 1230. The difference between that case and the instant case is simply one of degree. There a social host was held liable for the consequences of drunken driving by a minor who had been served by the host in a social setting. The legislative indicator of liability was not significantly stronger (in Linn a statutory and regulatory prohibition was involved, applicable, however, only to licensees; here only a regulatory prohibition); in both cases social habits may be affected, substantial economic consequences may result, and in both the court acts without the advantage of a legislative inquiry. The dissent's notion that Linn can be distinguished because "minors occupy a special place in our society and traditionally have been protected by state regulation from the consequences of their own immaturity" fails to acknowledge that the thrust of the case was to provide compensation for an innocent victim of a drunken driver where the driver happened to be a minor and not even a party to the action. The entire rationale of the opinion is that there is no sound reason to impose liability on a licensee and not on a social host. There is not a word nor the slightest implication in the opinion suggesting that the underlying purpose of the decision was to protect minors.

__________

[1] If this case involved service of alcohol by a social host to a minor guest, I would vote with the majority in approving Lind v. Rand, supra, 140 N.J.Super. 212, 356 A.2d 15, to the extent it has been interpreted as applying only to social hosts who serve liquor to minors. The distinction I draw is based on the clearly and frequently expressed legislative policy that minors should not drink alcoholic beverages, see, e.g., N.J.S.A. 33:1-77, and on the fact that minors occupy a special place in our society and traditionally have been protected by state regulation from the consequences of their own immaturity. Although the majority sees no basis for this distinction, I am not alone in making it. Compare Klein v. Raysinger, ---Pa. ---, 470 A.2d 507 (1983) (in which the Supreme Court of Pennsylvania refused to extend liability to a social host who serves an adult guest) with Congini v. Porterville Valve Co., --- Pa. ---, 470 A.2d 515 (1983) (decided on the same day as Klein by the same court but extending liability to a social host who served liquor to a minor guest); see also Senate Bill S-1054 (recently passed by the Senate and Assembly imposing criminal liability on social hosts who serve liquor to minors but not mentioning hosts who serve liquor to adults).