Kern and Wooley by Robert L. Greer, Mesa, for Plaintiff-Appellant Christopher Broadbent, a minor, by his Conservator, Phillip E. Broadbent.

Ridenour, Swenson, Cleere & Evans, P.C. by James W. Evans, Phoenix, for Defendant-Appellee Laura J. Broadbent.

Ulrich, Kessler & Anger, P.C. by Paul G. Ulrich, Donn G. Kessler, Phoenix, Musick, Peeler & Garrett by Wayne B. Littlefield, Lynn A. O'Leary, Los Angeles, CA, for Real Party in Interest Northbrook Indemnity Company.

OPINION

CORCORAN, Justice.

We must determine whether the doctrine of parental immunity bars Christopher Broadbent's action against his mother for negligence. We also discuss the viability of the line of Arizona cases creating and refining the parental immunity doctrine. We have jurisdiction pursuant to article 6, § 5(3) of the Arizona Constitution, and rule 23, Arizona Rules of Civil Appellate Procedure.

FACTS AND PROCEDURAL HISTORY

I. Facts

Christopher and his mother, Laura J. Broadbent, went swimming at the family residence on April 13, 1984, their first day of [907 P.2d 44] [184 Ariz. 75] swimming that year. Christopher was wearing "floaties," which are inflatable rings worn on the arms to assist a child in staying afloat. Laura understood that a child could still drown while wearing floaties and should be supervised. At the time of the accident, Christopher was two-and-a-half years old and did not know how to swim.

Laura and Christopher were by the side of the pool when the telephone rang. Laura left Christopher alone by the pool to answer the phone. Laura saw Christopher remove his floaties before she answered the phone. Laura talked on the phone 5 to 10 minutes and could not see Christopher from where she was talking. She also did not have on her contact lenses. Laura said that if she stretched the phone cord and her body, she could see the pool area, but when she did this, she could not see Christopher. She dropped the phone, ran toward the pool, and found Christopher floating in the deep end of the pool.

Laura administered cardio-pulmonary resuscitation and telephoned for the paramedics. Neither Laura nor the paramedics were able to revive Christopher. The paramedics took Christopher to the hospital where he was finally revived. As a result of this near drowning, Christopher suffered severe brain damage because of lack of oxygen. He has lost his motor skills and has no voluntary movement.

II. Procedural History

The coverage issue between State Farm Fire & Casualty Co. and the Broadbents was resolved by stipulation and order in the court of appeals. Broadbent v. Broadbent, 178 Ariz. 53, 54, 870 P.2d 1149, 1150 (App.1993). Therefore, that action is not reflected in the caption of this opinion or in the text.

A complaint was filed on behalf of Christopher, as plaintiff, against his mother, alleging that she was negligent and caused his injuries. This action was brought to involve the Broadbents' umbrella insurance carrier in the issue of coverage. In her answer, Laura admitted that she was negligent in her supervision of Christopher, and she moved for summary judgment, arguing that the doctrine of parental immunity applied. All parties to both the declaratory judgment action and the negligence action filed a stipulation to consolidate the cases, and the trial court ordered the consolidation. The trial court granted Laura's motion for summary judgment and ruled that the parental immunity doctrine applied to the facts of this case.

Phillip Broadbent, as Conservator for Christopher, appealed to the court of appeals. The parties stipulated that: (1) the real party in interest was Northbrook Indemnity Company, who provided personal umbrella liability insurance coverage for Laura Broadbent on the date of the accident; (2) Laura may be entitled to indemnity from Northbrook if Laura is liable for the injuries to Christopher; (3) Laura did not want to defend the action but agreed that Northbrook should be permitted to defend; and (4) the only issue in the case was whether the doctrine of parental immunity applied. The court of appeals ordered that Northbrook be permitted to appear and defend the case.

The court of appeals affirmed the trial court, finding that under the parental immunity doctrine the mother was not liable for her child's injuries. Broadbent, 178 Ariz. at 58, 870 P.2d at 1154. The court of appeals held that this case was most closely analogous to Sandoval v. Sandoval, 128 Ariz. 11, 623 P.2d 800 (1981), which involved negligent supervision of a child by a parent, and rejected the argument that the mother's duty to the child arose out of a duty to the world at large to protect all children from the pool. Broadbent, 178 Ariz. at 56-57, 870 P.2d at 1152-53. The court of appeals also rejected Christopher's arguments that (1) the injuries were caused by an instrumentality under the control of the mother, and therefore the doctrine of parental immunity did not apply; and (2) Arizona should further limit application of parental immunity in accord with Wisconsin cases from which Arizona's standard was originally derived. Broadbent, 178 Ariz. at 57-58, 870 P.2d at 1153-54.

Judge Kleinschmidt dissented and agreed with Christopher's argument that the mother owed a duty to the world to supervise the swimming pool, and therefore the doctrine of parental immunity did not apply. Broadbent,, [907 P.2d 45] [184 Ariz. 76] 78 Ariz. at 59, 870 P.2d at 1155 (Kleinschmidt, J., dissenting) (finding this case more closely analogous to Streenz v. Streenz, 106 Ariz. 86, 471 P.2d 282 (1970), and Schleier v. Alter, 159 Ariz. 397, 767 P.2d 1187 (App.1989)).

The court of appeals noted that it based its decision on an application of the current status of the parental immunity doctrine in Arizona and that any departure or modification of the established case law was "for the supreme court to determine" and not the court of appeals. Broadbent, 178 Ariz. at 58, 870 P.2d at 1154. We agree and do so in this opinion today.

DISCUSSION

I. History and Purpose of the Parental Immunity Doctrine

A. The Origins of Parental Immunity

We begin by stating a few basic facts about the treatment of children under the law and family immunities. Under common law, a child has traditionally been considered a separate legal entity from his or her parent. See W. Page Keeton, Dan B. Dobbs, Robert E. Keeton, and David G. Owen, Prosser and Keeton on the Law of Torts § 122, at 904 (5th ed. 1984) (Prosser & Keeton ); Martin J. Rooney & Colleen M. Rooney, Parental Tort Immunity: Spare the Liability, Spoil the Parent, 25 New Eng.L.Rev. 1161, 1162 (1991). Children have generally been allowed to sue their parents in property and contract actions. Goller v. White, 20 Wis.2d 402, 122 N.W.2d 193, 197 (1963); Gail D. Hollister, Parent-Child Immunity: A Doctrine in Search of Justification, 50 Fordham L.Rev. 489, 497 (1982) (Parent-Child Immunity ). In contrast, at common law the courts merged the identity of husband and wife; therefore, spousal immunity prohibited any action by a wife against her husband because to do so would have been to sue herself. Parent-Child Immunity, at 496-97; see also Windauer v. O'Connor, 13 Ariz.App. 442, 442-45, 477 P.2d 561, 562-65 (1970) (holding that doctrine of spousal immunity did not bar action by former wife against divorced husband for personal injuries sustained when husband shot wife during marriage). The doctrine of spousal immunity has been abolished and there has not been a prohibition against siblings suing each other. See Jefferson L. Lankford & Douglas A. Blaze, Law of Negligence in Arizona § 5.3(1)(a), at 106 (1992) (noting that Arizona has joined majority of states by abolishing doctrine of interspousal immunity).

The doctrine of parental immunity is an American phenomenon unknown in the English common law. See Gibson v. Gibson, 3 Cal.3d 914, 92 Cal.Rptr. 288, 289, 479 P.2d 648, 649 (1971); Cates v. Cates, 156 Ill.2d 76, 189 Ill.Dec. 14, 20, 619 N.E.2d 715, 721 (1993); Prosser & Keeton § 122, at 904. Courts in Canada and Scotland have held that children may sue their parents in tort. See Gibson, 92 Cal.Rptr. at 289, 479 P.2d at 649; Prosser & Keeton § 122, at 904.

In early American history, children were viewed as "evil and in need of strict discipline," and the courts recognized wide parental discretion. Parent-Child Immunity, at 491-92. There was a strong presumption that parental discipline was proper. See, e.g., S.C.Code Ann. § 16-3-40 (Law.Co-op.1976) (statute originating from 1712 that provided a defense to "[k]illing by stabbing or thrusting" if done while chastising or correcting your child). Only recently has the state intervened to protect children. See, e.g., A.R.S. §§ 8-501 to -550.01 (child welfare and placement). Viewed against this backdrop, it is not surprising that no American child had sought recovery against a parent for tortious conduct until the late nineteenth century.

In Hewlett v. George, 68 Miss. 703, 711, 9 So. 885, 887 (1891),^[1] the Supreme Court of Mississippi held, without citation to legal authority, that a child could not sue her parent for being falsely imprisoned in an insane asylum because of parental immunity, a doctrine which that court created from whole cloth. As its rationale, the court stated:

[S]o long as the parent is under obligation to care for, guide and control, and the child [907 P.2d 46] [184 Ariz. 77] is under reciprocal obligation to aid and comfort and obey, no such action as this can be maintained. The peace of society, and of the families composing society, and a sound public policy, designed to subserve the repose of families and the best interests of society, forbid to the minor child a right to appear in court in the assertion of a claim to civil redress for personal injuries suffered at the hands of the parent.

Hewlett, 68 Miss. at 711, 9 So. at 887.

Hewlett was followed by two cases that were also decided on parental immunity grounds, and these came to be known as the "great trilogy" of cases establishing the parental immunity doctrine. In McKelvey v. McKelvey, the Tennessee Supreme Court held that a minor child could not sue her father for "cruel and inhuman treatment" allegedly inflicted by her stepmother with the consent of her father. 111 Tenn. 388, 77 S.W. 664, 664-65 (1903). McKelvey cited Hewlett as the only authority for the doctrine of parental immunity and analogized the parent-child relationship to that of the husband-wife relationship, noting that the basis for the spousal immunity was, in part, the fact that husband and wife are a legal entity. McKelvey, 77 S.W. at 664-65.

In Roller v. Roller, the Supreme Court of Washington cited Hewlett and held that a minor child could not sue her father for rape, even though he had been convicted of the criminal violation, because of the doctrine of parental immunity. Roller, 37 Wash. 242, 79 P. 788, 788-89 (1905). The Roller court argued that if the child recovered a money judgment from the parent and then died, the parent would then become heir to the property that had been taken from him. 79 P. at 789. In addition, Roller argued that "the public has an interest in the financial welfare of other minor members of the family, and it would not be the policy of the law to allow the estate, which is to be looked to for the support of all the minor children, to be appropriated by any particular one." 79 P. at 789.

This "great trilogy" was the inauspicious beginning of the doctrine of parental immunity, which was soon embraced by almost every state. Parent-Child Immunity, at 494 n. 39, 495 (noting that doctrine was adopted by all but 7 states). However, the courts soon began fashioning several exceptions to the doctrine, and in several states the doctrine has been abolished. See Gibson, 479 P.2d at 650, 653 (noting erosion of doctrine in the United States and abolishing immunity in California except for conduct not in keeping with "reasonable parent" test); Glaskox v. Glaskox, 614 So.2d 906, 909-11 (Miss.1992) (abolishing parental immunity where minor injured as result of parents' negligence in car accident). In several situations, parental immunity does not apply: if the parent is acting outside his parental role and within the scope of his employment; if the parent acts willfully, wantonly, or recklessly; if the child is emancipated; if the child or parent dies; if a third party is liable for the tort, then the immunity of the parent does not protect that third party; and if the tortfeasor is standing in loco parentis, such as a grandparent, foster parent, or teacher, then the immunity does not apply, see Rourk v. State, 170 Ariz. 6, 10-11, 821 P.2d 273, 277-78 (App.1991) (holding that doctrine of parental immunity did not apply to foster parents). See 4 Restatement (Second) of Torts § 895 G, at 428-30 (1979) (listing longstanding exceptions to parental immunity doctrine); Prosser & Keeton § 122, at 906-07.

B. Parental Immunity in Arizona

In 1967 the doctrine of parental immunity was first recognized in Arizona in Purcell v. Frazer, 7 Ariz.App. 5, 8-9, 435 P.2d 736, 739-40 (1967). In Purcell, the Arizona Court of Appeals held that the doctrine of parental immunity prohibited children from suing their parents for injuries resulting from a car accident allegedly caused by the parents' negligence. 7 Ariz.App. at 7-9, 435 P.2d at 736-40. Purcell, however, was soon overruled in 1970 by Streenz v. Streenz, which held that an unemancipated minor could sue her parents for injuries resulting from a car accident. Streenz, 106 Ariz. 86, 88-89, 471 P.2d 282, 284-85 (1970). In Streenz, this court adopted the standard from the Wisconsin Supreme Court set forth in Goller v. White, 20 Wis.2d 402, 122 N.W.2d 193, 198 (1963). [907 P.2d 47] [184 Ariz. 78] Streenz, 106 Ariz. at 89, 471 P.2d at 285. Under the Goller standard, parental immunity is abrogated except:

(1) where the alleged negligent act involves an exercise of parental authority over the child; and

(2) where the alleged negligent act involves an exercise of ordinary parental discretion with respect to the provision of food, clothing, housing, medical and dental services, and other care.

Streenz, 106 Ariz. at 89, 471 P.2d at 285, quoting Goller, 122 N.W.2d at 198. The cases following Streenz show the difficulty in applying this ambiguous standard.

In Sandoval v. Sandoval, a child sued his parents alleging that his father had negligently left the gate open, which allowed the 4-year-old child to ride his tricycle from the front yard into the street where he was run over by a car. 128 Ariz. 11, 11, 623 P.2d 800, 800 (1981). In Sandoval, this court devised a new test for applying the standard set forth in Streenz: the parent would not be immune if the parent had a duty to the world at large. Sandoval, 128 Ariz. at 13, 623 P.2d at 802. If the parent's duty was "owed to the child alone and a part of the parental 'care and control' or 'other care' to be provided by the parents," then the parent was immune from liability. Sandoval, 128 Ariz. at 13-14, 623 P.2d at 802-03. The court held that "the act of leaving a gate open should not subject the plaintiff's parents to suit." Sandoval, 128 Ariz. at 14, 623 P.2d at 803. Further, the court noted that it did not limit the abrogation of the parental immunity doctrine to negligence in car accident cases and would, instead, "continue to consider, on a case by case basis, the actual cause of the injury and whether the act of the parent breached a duty owed to the world at large, as opposed to a duty owed to a child within the family sphere." Sandoval, 128 Ariz. at 14, 623 P.2d at 803. The court reasoned that when a parent was driving a car, he had a duty to the world to drive carefully, whereas the duty to close the gate was a duty owed only to the child, and that the direct cause of the child's injuries in Sandoval was the car that struck him in the street, not the gate being open. Sandoval, 128 Ariz. at 13, 623 P.2d at 802.

Applying Sandoval, the court in Schleier v. Alter held that the parents had a duty to the world at large and therefore were not immune from liability. Schleier, 159 Ariz. 397, 399-400, 767 P.2d 1187, 1189-90 (App.1989). In that case, the family dog, which had a history of attacking children, bit the Alters' 11-month-old child. Schleier, 159 Ariz. at 398, 767 P.2d at 1188. The court of appeals characterized the duty that the parents owed as a general duty to the world to supervise their dog, which the court found to be the equivalent of a "dangerous instrumentality" to children. Schleier, 159 Ariz. at 400, 767 P.2d at 1190.

The most recent Arizona case on parental immunity found the doctrine to be applicable. In Sandbak v. Sandbak, the Sandbaks' child wandered onto the next door neighbors' property where the neighbors' pit bull terrier severely mauled her. 166 Ariz. 21, 22, 800 P.2d 8, 9 (App.1990). The parents knew that the next door neighbors owned pit bull terriers and that their daughter had a habit of wandering onto the neighbors' property. Sandbak, 166 Ariz. at 22, 800 P.2d at 9. The court held that the child's claim of negligent supervision was barred, rejecting the child's argument that immunity only applied to parents' negligence with regard to legal obligations. Sandbak, 166 Ariz. at 23, 800 P.2d at 10. The court rejected the Wisconsin Supreme Court's limiting interpretation of the Goller test in Thoreson v. Milwaukee & Suburban Transport Co., 56 Wis.2d 231, 201 N.W.2d 745, 753 (1972), which held that acts involving an "exercise of discretion with 'respect to the provision of food, clothing, housing, medical and dental services, and other care ' " meant that parents were allowed "discretion in performing their legal duties." (Emphasis added.) In Thoreson, the Wisconsin court concluded that the parent was not immune from liability for negligently supervising her child who wandered out of the house and into the street where he was injured. 201 N.W.2d at 747, 753.

Further, in Sandbak, the Arizona Court of Appeals rejected the argument that allowing the child to trespass on the neighbors' property [907 P.2d 48] [184 Ariz. 79] was a violation of the parents' duty to the world at large, finding that violation of that duty, if it even existed, was not the proximate cause of the injury. Sandbak, 166 Ariz. at 23, 800 P.2d at 10.

C. Analysis of the Policy Reasons Advanced in Support of Parental Immunity

Courts and commentators have postulated many policy reasons for the parental immunity doctrine. The primary justifications for this immunity are:

(1) Suing one's parents would disturb domestic tranquility;

(2) Suing one's parents would create a danger of fraud and collusion;

(3) Awarding damages to the child would deplete family resources;

(4) Awarding damages to the child could benefit the parent if the child predeceases the parent and the parent inherits the child's damages; and

(5) Suing one's parents would interfere with parental care, discipline, and control.

Streenz, 106 Ariz. at 87 n. 1, 471 P.2d at 283 n. 1; see also Gibson, 479 P.2d at 651; Cates, 619 N.E.2d at 720; Prosser & Keeton § 122, at 905. We believe that all of these justifications provide weak support for the parental immunity doctrine.

The injury to the child, more than the lawsuit, disrupts the family tranquility. In fact, if the child is not compensated for the tortious injury, then peace in the family is even less likely. In the seminal Arizona case on parental immunity, the court recognized that family tranquility would not be disturbed if the parents had liability insurance. Purcell, 7 Ariz.App. at 8, 435 P.2d at 739.

This fear of upsetting the family tranquility also seems unrealistic when we consider how such a lawsuit is initiated. The parent most often makes the decision to sue himself, and the parent is in effect prepared to say that he was negligent. See Comment, The "Reasonable Parent" Standard: An Alternative to Parent-Child Tort Immunity, 47 U.Colo.L.Rev. 795, 798-99 (1976).

The danger of fraud and collusion is present in all lawsuits. We should not deny recovery to an entire class of litigants because some litigants might try to deceive the judicial system. The system can ferret out fraudulent and collusive behavior in suits brought by children against their parents just as the system detects such behavior in other contexts.

We note, too, that both of these arguments--disturbing domestic tranquility and danger of fraud and collusion--were also justifications for spousal immunity, which has been abrogated in Arizona. These same concerns could justify an immunity from suits brought by one sibling against another; however, this is an immunity that the courts have not felt the need to create. Furthermore, one of the justifications for spousal immunity was that husband and wife were considered a single legal entity, yet this legal fiction was not applied to the parent-child relationship. As noted earlier, children have always been able to maintain actions against their parents in contexts other than negligence actions, such as contract actions or for willful conduct by the parent. Therefore, the reliance on spousal immunity as a justification for parental immunity is not sound. See McKelvey, 77 S.W. at 665.

A damage award for the child will not deplete, or unfairly redistribute, the family's financial resources. These cases will generally not be brought if no insurance coverage is available, and therefore the worry that the family's resources will be depleted for the benefit of one child is illusory. The opposite is true. If a child has been seriously injured and needs expensive medical care, then a successful lawsuit against the parent and subsequent recovery from the insurance company could ease the financial burden on the family. It would not be a viable rule to say that liability only exists where insurance exists, but we recognize that lawsuits generally will be brought when there is potential insurance coverage.

The possibility that the parent might inherit money recovered by the child is remote. This becomes a concern only if the parent inherits as a beneficiary under intestate succession laws. This is a concern for the probate [907 P.2d 49] [184 Ariz. 80] courts and the laws of intestate succession, not tort law. The remedy would be to prohibit inheritance by the parent--not to deny recovery to the injured child. See Parent-Child Immunity, at 497-98.

The Arizona courts have embraced the rationale that allowing a child to sue a parent would interfere with parental care, discipline, and control. See Streenz, 106 Ariz. at 89, 471 P.2d at 285. We have cited with approval the Wisconsin Supreme Court's statement that:

[a] new and heavy burden would be added to the responsibility and privilege of parenthood, if within the wide scope of daily experiences common to the upbringing of children a parent could be subjected to a suit for damages for each failure to exercise care and judgment commensurate with the risk.

Sandoval, 128 Ariz. at 13, 623 P.2d at 802, quoting Lemmen v. Servais, 39 Wis.2d 75, 158 N.W.2d 341, 344 (1968).

The justification that allowing children to sue their parents would undercut parental authority and discretion has more appeal than the other rationales. However, if a child were seriously injured as a result of the exercise of parental authority, such as by a beating, then it would constitute an injury willfully inflicted, and parents are generally not immune for willful, wanton, or malicious conduct. See Annotation, Liability of Parent or Person In Loco Parentis for Personal Tort Against Minor Child, 19 A.L.R.2d 423, 451-54 (1951). Furthermore, such a willful beating would probably constitute child abuse and could be criminally prosecuted. See A.R.S. § 8-546 (Supp.1994).^[2]

We want to protect the right of parents to raise their children by their own methods and in accordance with their own attitudes and beliefs. The New York Court of Appeals aptly stated this concern:

Considering the different economic, educational, cultural, ethnic and religious backgrounds which must prevail, there are so many combinations and permutations of parent-child relationships that may result that the search for a standard would necessarily be in vain.... For this reason parents have always had the right to determine how much independence, supervision and control a child should have, and to best judge the character and extent of development of their child.

Holodook v. Spencer, 36 N.Y.2d 35, 364 N.Y.S.2d 859, 867, 324 N.E.2d 338, 346 (1974), quoting Holodook v. Spencer, 43 A.D.2d 129, 350 N.Y.S.2d 199, 204 (1973). Though we recognize the importance of allowing parental discretion, we disagree that our searching for a standard would be "in vain." Parents do not possess unfettered discretion in raising their children.

II. The Abolishment of Parental Immunity and Adoption of the "Reasonable Parent" Standard for Parent-Child Suits

Although the above concerns make it difficult to draft a proper standard for the type of action a child may maintain against a parent, we will attempt to do so. We need to "fashion an objective standard that does not result in second-guessing parents in the management of their family affairs." Parent-Child Immunity, at 490. First, we should make clear what the standard is not. We reject and hereby overrule Sandoval, which created the "duty to the world at large versus duty to the child alone" distinction. 128 Ariz. at 13-14, 623 P.2d at 802-03. This distinction is not capable of uniform application and has no connection with the rationale for parental immunity. This is especially evident when we compare the facts of Schleier and Sandbak.

In Schleier, the negligent act was failure to restrain a dog, and the court found that this was a duty to the world; therefore, parental immunity did not apply. 159 Ariz. at 400-01, 767 P.2d at 1190-91. In Sandbak, the negligent [907 P.2d 50] [184 Ariz. 81] act was failure to supervise a child who was bitten by a neighbor's dog, and the court found this was a duty to the child alone; therefore, parental immunity applied. 166 Ariz. at 23, 800 P.2d at 10. The children in Schleier and Sandbak suffered similar injuries; neither case involved parental discipline, and neither case involved the "provision of food, clothing, housing, medical and dental services, and other care," unless "other care" is broadly defined. Both cases involved the negligent supervision of children. If we were to hold that parents are immune for negligent supervision of children, then the issue of liability would revolve around whether an activity could be described as "supervision" and whether lack of supervision was the cause of the injury. This would not involve a consideration of whether the activity infringed on the parents' discretionary decisions regarding care, custody, and control. Almost everything a parent does in relation to his child involves "care, custody, and control."

We add that parents always owe a parental duty to their minor child. The issue of liability should revolve around whether the parents have breached this duty and, if so, whether the breach of duty caused the injury.

In accord with the California Supreme Court, "we reject the implication of Goller [which this court approved in Streenz ] that within certain aspects of the parent-child relationship, the parent has carte blanche to act negligently toward his child.... [A]lthough a parent has the prerogative and the duty to exercise authority over his minor child, this prerogative must be exercised within reasonable limits." Gibson, 479 P.2d at 652-53. We hereby reject the Goller test as set forth in Streenz, and we approve of the "reasonable parent test," in which a parent's conduct is judged by whether that parent's conduct comported with that of a reasonable and prudent parent in a similar situation. Gibson, 479 P.2d at 653.

A parent is not immune from liability for tortious conduct directed toward his child solely by reason of that relationship. See 4 Restatement (Second) of Torts § 895 G, at 426. And, a parent is not liable for an act or omission that injured his child if the parent acted as a reasonable and prudent parent in the situation would.

III. Application to the Present Case

In this case, the trier of fact may find that the mother, Laura Broadbent, did not act as a reasonable and prudent parent would have in this situation. The finder of fact must determine whether leaving a two-and-a-half year old child unattended next to a swimming pool is reasonable or prudent. We fail to see why parents should not be held liable for negligence in failing to supervise their own children near the pool, when their liability would be clear had the children not been their own. We think that in most cases, if not all, the standard of care owed to a parent's own child is the same as that owed to any other child.

The paradox of parental immunity can be seen if we assume that a neighbor child from across the street was a guest and was injured at the same time and under the same circumstances as Christopher. Should the neighbor child be permitted to sue and recover damages from Laura but Christopher be denied the same opportunity?

A parent may avoid liability because there is no negligence, but not merely because of the status as parent. Children are certainly accident prone, and oftentimes those accidents are not due to the negligence of any party. The same rules of summary judgment apply to these cases as to others, and trial courts should feel free to dismiss frivolous cases on the ground that the parent has acted as a reasonable and prudent parent in a similar situation would. See Gibson, 479 P.2d at 653.

CONCLUSION

We vacate the court of appeals' decision in this case, reverse the trial court's rulings on summary judgment, and remand to the trial court for proceedings consistent with this opinion. Laura Broadbent is not immune from liability in this case because of the doctrine of parental immunity, which we hereby abolish. We overrule Sandoval on the issue of parental immunity and no longer [907 P.2d 51] [184 Ariz. 82] follow the Goller test as adopted in Streenz. See Sandoval, 128 Ariz. at 14, 623 P.2d at 803; Streenz, 106 Ariz. at 89, 471 P.2d at 285.

MOELLER, V.C.J., and ZLAKET and MARTONE, JJ., concur.

FELDMAN, Chief Justice, specially concurring.

I join in the abrogation of parental immunity and the court's adoption of the reasonable and prudent parent test but write separately to sound a note of caution. Although we abolish a rule of tort immunity, we must bear in mind that "difficult problems" remain in "determining when a physical harm should be regarded as actionable." RESTATEMENT (SECOND) OF TORTS § 895G cmt. k. If the alleged tortious conduct does not grow out of the family relationship, the question of negligence "may be determined as if the parties were not related." Id. However, there are areas of broad discretion in which only parents have authority to make decisions. In these areas, I agree with the RESTATEMENT'S view that "the standard of a reasonable prudent parent ... recognize[s] the existence of that discretion and thus ... require[s] that the [parent's] conduct be palpably unreasonable in order to impose liability." Id. If, however, the charged breach of duty falls outside the area of a parent's discretionary authority and is, instead, within the obligation of due care owed by anyone who has supervisory or other responsibility for another's safety, then the test should be much more flexible.

Thus, the parent who decides to enroll a two-year-old child in swimming lessons at a neighborhood pool operates within the realm of parent-child decision-making. Although the child might be hurt during the course of such lessons, the decision to put the child in that position is peculiarly a matter of parental authority rather than a question of supervisory care or performance. Under the proper application of the reasonable and prudent parent test, as a matter of law there should be no liability unless one could say the decision was palpably unreasonable under given circumstances.

The facts of this case illustrate the other side of the coin. The act of leaving an unsupervised two-year-old child, who was unable to swim, at the side of a swimming pool was not an exercise of parental decision-making but an inadvertent act in the performance of duties owed by a caretaker. As the RESTATEMENT indicates, the reasonable and prudent parent test extends a great deal of flexibility to the first example but much less, if any, to the second.

[1] We refer the reader to the Mississippi Reports because it contains additional facts from the circuit court and the complete (and correct) names of the parties.

[2] "Abuse" is defined in § 8-546 as

the infliction or allowing of physical injury, impairment of bodily function or disfigurement or the infliction of or allowing another person to cause serious emotional damage as evidenced by severe anxiety, depression, withdrawal or untoward aggressive behavior ... and which is caused by the acts or omissions of an individual having care, custody and control of a child.

(Emphasis added.)

[17 Cal.3d 429] [131 Cal.Rptr. 19] [551 P.2d 339] George Alexander McKray, San Francisco, for plaintiffs and appellants.

Robert E. Cartwright, San Francisco, Floyd A. Demanes, Burlingame, William H. Lally, Sacramento, Edward I. Pollock, Los Angeles, Leonard Sacks, Encino, Stephen I. Zetterberg, Claremont, Sanford M. Gage, Beverly Hills, Robert O. Angle, Santa Barbara, and Melanie Bellah, Berkeley, as amici curiae for plaintiffs and appellants.

Ericksen, Ericksen, Lynch, Young & Mackenroth, [17 Cal.3d 430] William R. Morton, Richard G. Logan, Oakland, Hanna, Brophy, MacLean, McAleer & Jensen, Hanna & Brophy, and James V. Burchell, San Francisco, for defendants and respondents.

Evelle J. Younger, Atty. Gen., James E. Sabine, Asst. Atty. Gen., John M. Morrison and Thomas K. McGuire, Deputy Attys. Gen., John H. Larson, County Counsel (Los Angeles), Daniel D. Mikesell, Jr., Deputy County Counsel, Richard J. Moore, County Counsel (Alameda), Charles L. Harrington, Deputy County Counsel, Musick, Peeler & Garrett, James E. Ludlam, Los Angeles, Severson, Werson, Berke & Melchior, Kurt W. Melchior, Nicholas S. Freud and Jan T. Chilton, San Francisco, as amici curiae for defendants and respondents.

TOBRINER, Justice.

On October 27, 1969, Prosenjit Poddar killed Tatiana Tarasoff.^[1] Plaintiffs, Tatiana's parents, allege that two months earlier Poddar confided his intention to kill Tatiana to Dr. Lawrence Moore, a psychologist employed by the Cowell Memorial Hospital at the University of California at Berkeley. They allege that on Moore's request, the campus police briefly detained Poddar, but released him when he appeared [131 Cal.Rptr. 20] [551 P.2d 340] rational. They further claim that Dr. Harvey Powelson, Moore's superior, then directed that no further action be taken to detain Poddar. No one warned plaintiffs of Tatiana's peril.

Concluding that these facts set forth causes of action against neither therapists and policemen involved, nor against the Regents of the University of California as their employer, the superior court sustained defendants' demurrers to plaintiffs' second amended complaints without leave to amend.^[2] This appeal ensued.

[17 Cal.3d 431] Plaintiffs' complaints predicate liability on two grounds: defendants' failure to warn plaintiffs of the impending danger and their failure to bring about Poddar's confinement pursuant to the Lanterman-Petris-Short Act (Welf. & Inst.Code, § 5000ff.) Defendants, in turn, assert that they owed no duty of reasonable care to Tatiana and that they are immune from suit under the California Tort Claims Act of 1963 (Gov.Code, § 810ff.).

We shall explain that defendant therapists cannot escape liability merely because Tatiana herself was not their patient. When a therapist determines, or pursuant to the standards of his profession should determine, that his patient presents a serious danger of violence to another, he incurs an obligation to use reasonable care to protect the intended victim against such danger. The discharge of this duty may require the therapist to take one or more of various steps, depending upon the nature of the case. Thus it may call for him to warn the intended victim or others likely to apprise the victim of the danger, to notify the police, or to take whatever other steps are reasonably necessary under the circumstances.

In the case at bar, plaintiffs admit that defendant therapists notified the police, but argue on appeal that the therapists failed to exercise reasonable care to protect Tatiana in that they did not confine Poddar and did not warn Tatiana or others likely to apprise her of the danger. Defendant therapists, however, are public employees. Consequently, to the extent that plaintiffs seek to predicate liability upon the therapists' failure to bring about Poddar's confinement, the therapists can claim immunity under Government Code section 856. No specific statutory provision, however, shields them from liability based upon failure to warn Tatiana or others likely to apprise her of the danger, and Government Code section 820.2 does not protect such failure as an exercise of discretion.

Plaintiffs therefore can amend their complaints to allege that, regardless of the therapists' unsuccessful attempt to confine Poddar, since they knew that Poddar was at large and dangerous, their failure to warn Tatiana or others likely to apprise her of the danger constituted a breach of the therapists' duty to exercise reasonable care to protect Tatiana.

Plaintiffs, however, plead no relationship between Poddar and the police defendants which would impose upon them any duty to Tatiana, and plaintiffs suggest no other basis for such a duty. Plaintiffs have, [17 Cal.3d 432] therefore, failed to show that the trial court erred in sustaining the demurrer of the police defendants without leave to amend.

1. Plaintiffs' complaints.

Plaintiffs, Tatiana's mother and father, filed separate but virtually identical second amended complaints. The issue before [131 Cal.Rptr. 21] [551 P.2d 341] us on this appeal is whether those complaints now state, or can be amended to state, causes of action against defendants. We therefore begin by setting forth the pertinent allegations of the complaints.^[3]

Plaintiffs' first cause of action, entitled 'Failure to Detain a Dangerous Patient,' alleges that on August 20, 1969, Poddar was a voluntary outpatient receiving therapy at Cowell Memorial Hospital. Poddar informed Moore, his therapist, that he was going to kill an unnamed girl, readily identifiable as Tatiana, when she returned home from spending the summer in Brazil. Moore, with the concurrence of Dr. Gold, who had initially examined Poddar, and Dr. Yandell, Assistant to the director of the department of psychiatry, decided that Poddar should be committed for observation in a mental hospital. Moore orally notified Officers Atkinson and Teel of the campus police that he would request commitment. He then sent a letter to Police Chief William Beall requesting the assistance of the police department in securing Poddar's confinement.

Officers Atkinson, Brownrigg, and Halleran took Poddar into custody, but, satisfied that Poddar was rational, released him on his promise to stay away from Tatiana. Powelson, director of the department of psychiatry at Cowell Memorial Hospital, then asked the police to return Moore's letter, directed that all copies of the letter and notes that Moore had taken as therapist be destroyed, and 'ordered no action to place Prosenjit Poddar in 72-hour treatment and evaluation facility.'

[17 Cal.3d 433] Plaintiffs' second cause of action, entitled 'Failure to Warn On a Dangerous Patient,' incorporates the allegations of the first cause of action, but adds the assertion that defendants negligently permitted Poddar to be released from police custody without 'notifying the parents of Tatiana Tarasoff that their daughter was in grave danger from Posenjit Poddar.' Roddar persuaded Tatiana's brother to share an apartment with him near Tatiana's residence; shortly after her return from Brazil, Poddar went to her residence and killed her.

Plaintiffs' third cause of action, entitled 'Abandonment of a Dangerous Patient,' seeks $10,000 punitive damages against defendant Powelson. Incorporating the crucial allegations of the first cause of action, plaintiffs charge that Powelson 'did the things herein alleged with intent to abandon a dangerous patient, and said acts were done maliciously and oppressively.'

Plaintiffs' fourth cause of action, for 'Breach of Primary Duty to Patient and the Public,' states essentially the same allegations as the first cause of action, but seeks to characterize defendants' conduct as a breach of duty to safeguard their patient and the public. Since such conclusory labels add nothing to the factual allegations of the complaint, the first and fourth causes of action are legally indistinguishable.

As we explain in part 4 of this opinion, plaintiffs' first and fourth causes of action, which seek to predicate liability upon the defendants' failure to bring about Poddar's confinement, are barred by governmental immunity. Plaintiffs' third cause of action succumbs to the decisions precluding exemplary damages in a wrongful death action. [131 Cal.Rptr. 22] [551 P.2d 342] (See part 6 of this opinion.) We direct our attention, therefore, to the issue of whether plaintiffs' second cause of action can be amended to state a basis for recover.

2. Plaintiffs can state a cause of action against defendant therapists for negligent failure to protect Tatiana.

The second cause of action can be amended to allege that Tatiana's death proximately resulted from defendants' negligent failure to warn Tatiana or others likely to apprise her of her danger. Plaintiffs contend that as amended, such allegations of negligence and proximate causation, with resulting damages, establish a cause of action. Defendants, however, contend that in the circumstances of the present case they owed no duty of care to Tatiana or her parents and that, in the absence of such [17 Cal.3d 434] duty, they were free to act in careless disregard of Tatiana's life and safety.

In analyzing this issue, we bear in mind that legal duties are not discoverable facts of nature, but merely conclusory expressions that , in cases of a particular type, liability should be imposed for damage done. As stated in Dillon v. Legg (1968) 68 Cal.2d 728, 734, 69 Cal.Rptr. 72, 76, 441 P.2d 912, 916: 'The assertion that liability must . . . be denied because defendant bears no 'duty' to plaintiff 'begs the essential question--whether the plaintiff's interests are entitled to legal protection against the defendant's conduct. . . (Duty) is not sacrosanct in itself, but only an expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection.' (Prosser, Law of Torts (3d ed. 1964) at pp. 332--333.)'

In the landmark case of Rowland v. Christian (1968) 69 Cal.2d 108, 70 Cal.Rptr. 97, 443 P.2d 561, Justice Peters recognized that liability should be imposed 'for an injury occasioned to another by his want of ordinary care or skill' as expressed in section 1714 of the Civil Code. Thus, Justice Peters, quoting from Heaven v. Pender (1883) 11 Q.B.D. 503, 509 stated: "whenever one person is by circumstances placed in such a position with regard to another . . . that if he did not use ordinary care and skill in his own conduct . . . he would cause danger of injury to the person or property of the other, a duty arises to use ordinary care and skill to avoid such danger."

We depart from 'this fundamental principle' only upon the 'balancing of a number of considerations'; major ones 'are 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.'^[4]

The most important of these considerations in establishing duty is foreseeability. As a general principle, a 'defendant owes a duty of [17 Cal.3d 435] care to all persons who are foreseeably endangered by his conduct, with respect to all risks which make the conduct unreasonably dangerous.' (Rodriguez v. Bethlehem Steel Corp. (1974) 12 Cal.3d 382, 399, 115 Cal.Rptr. 765, 776, 525 P.2d 669, 680; Dillon v. Legg, Supra, 68 Cal.2d 728, 739, 69 Cal.Rptr. 72, 441 P.2d 912; Weirum v. R.K.O. General, Inc. (1975) 15 Cal.3d 40, 123 Cal.Rptr. 468, 539 P.2d 36; see Civ.Code, § 1714.) As we shall explain, however, when the avoidance of foreseeable harm requires a defendant to control the conduct of another person, or to warn [131 Cal.Rptr. 23] [551 P.2d 343] of such conduct, the common law has traditionally imposed liability only if the defendant bears some special relationship to the dangerous person or to the potential victim. Since the relationship between a therapist and his patient satisfies this requirement, we need not here decide whether foreseeability alone is sufficient to create a duty to exercise reasonably care to protect a potential victim of another's conduct.

Although, as we have stated above, under the common law, as a general rule, one person owed no duty to control the conduct of another^[5] (Richards v. Stanley (1954) 43 Cal.2d 60, 65, 271 P.2d 23; Wright v. Arcade School Dist. (1964) 230 Cal.App.2d 272, 277, 40 Cal.Rptr. 812; Rest.2d Torts (1965) § 315), nor to warn those endangered by such conduct (Rest.2d Torts, Supra, § 314, com. c.; Prosser, Law of Torts (4th ed. 1971) § 56, p. 341), the courts have carved out an exception to this rule in cases in which the defendant stands in some special relationship to either the person whose conduct needs to be controlled or in a relationship to the foreseeable victim of that conduct (see Rest.2d Torts, Supra, §§ 315--320). Applying this exception to the present case, we note that a relationship of defendant therapists to either Tatiana or Poddar will suffice to establish a duty of care; as explained in section 315 of the Restatement Second of Torts, a duty of care may arise from either '(a) a special relation . . . between the actor and the third person which imposes a duty upon the actor to control the third person's conduct, or (b) a special relation . . . between the actor and the other which gives to the other a right of protection.'

[17 Cal.3d 436] Although plaintiffs' pleadings assert no special relation between Tatiana and defendant therapists, they establish as between Poddar and defendant therapists the special relation that arises between a patient and his doctor or psychotherapist.^[6] Such a relationship may support affirmative duties for the benefit of third persons. Thus, for example, a hospital must exercise reasonable care to control the behavior of a patient which may endanger other persons.^[7] A doctor must also warn a patient [551 P.2d 344] [131 Cal.Rptr. 24] if the patient's condition or medication renders certain conduct, such as driving a car, dangerous to others.^[8]

Although the California decisions that recognize this duty have involvd cases in which the defendant stood in a special relationship Both to the victim and to the person whose conduct created the danger,^[9] we do not think that the duty should logically be constricted to such situations. Decisions of other jurisdictions hold that the single relationship of a doctor to his patient is sufficient to support the duty to exercise reasonable care to rotect others against dangers emanating from the patient's illness. The courts hold that a doctor is liable to persons [17 Cal.3d 437] infected by his patient if he negligently fails to diagnose a contagious disease (Hofmann v. Blackmon (Fla.App.1970) 241 So.2d 752), or, having diagnosed the illness, fails to warn members of the patient's family (Wojcik v. Aluminum Co. of America (1959) 18 Misc.2d 740, 183 N.Y.S2d 351, 357--358; Davis v. Rodman (1921) 147 Ark. 385, 227 S.W. 612; Skillings v. Allen (1919) 143 Minn. 323, 173 N.W. 663; see also Jones v. Stanko (1928) 118 Ohio St. 147, 160 N.E. 456).

Since it involved a dangerous mental patient, the decision in Merchants Nat. Bank & Trust Co. of Fargo v. United States (D.N.D.1967) 272 F.Supp. 409 comes closer to the issue. The Veterans Administration arranged for the patient to work on a local farm, but did not inform the farmer of the man's background. The farmer consequently permitted the patient to come and go freely during nonworking hours; the patient borrowed a car, drove to his wife's residence and killed her. Notwithstanding the lack of any 'special relationship' between the Veterans Administration and the wife, the court found the Veterans Administration liable for the wrongful death of the wife.

In their summary of the relevant rulings Fleming and Maximov conclude that the 'case law should dispel any notion that to impose on the therapists a duty to take precautions for the safety of persons threatened by a patient, where due care so requires, is in any way opposed to contemporary ground rules on the duty relationship. On the contrary, there now seems to be sufficient authority to support the conclusion that by entering into a doctor-patient relationship the therapist becomes sufficiently involved to assume some responsibility for the safety, not only of the patient himself, but also of any third person whom the doctor knows to be threatened by the patient.' (Fleming & Maximov, The Patient or His Victim: The Therapist's Dilemma (1974) 62 Cal.L.Rev. 1025, 1030.)

Defendants contend, however, that imposition of a duty to exercise reasonable care to protect third persons is unworkable because therapists cannot accurately predict whether or not a patient will resort to violence. In support of this argument amicus representing the American Psychiatric Association and other professional societies cites numerous articles which indicate that therapists, in the present state of the art, are unable reliably to predict violent acts; their forecasts, amicus claims, tend consistently to overpredict violence, and indeed are more often wrong [17 Cal.3d 438] than right.^[10] Since [131 Cal.Rptr. 25] [551 P.2d 345] predictions of violence are often erroneous, amicus concludes, the courts should not render rulings that predicate the liability of therapists upon the validity of such predictions.

The role of the psychiatrist, who is indeed a practitioner of medicine, and that of the psychologist who performs an allied function, are like that of the physician who must conform to the standards of the profession and who must often make diagnoses and predictions based upon such evaluations. Thus the judgment of the therapist in diagnosing emotional disorders and in predicting whether a patient presents a serious danger of violence is comparable to the judgment which doctors and professionals must regularly render under accepted rules of responsibility.

We recognize the difficulty that a therapist encounters in attempting to forecast whether a patient presents a serious danger of violence. Obviously we do not require that the therapist, in making that determination, render a perfect performance; the therapist need only exercise 'that reasonable degree of skill, knowledge, and care ordinarily possessed and exercised by members of (that professional specialty) under similar circumstances.' (Bardessono v. Michels (1970) 3 Cal.3d 780, 788, 91 Cal.Rptr. 760, 764, 478 P.2d 480, 484; Quintal v. Laurel Grove Hospital (1964) 62 Cal.2d 154, 159--160, 41 Cal.Rptr. 577, 397 P.2d 161; see 4 Witkin, Summary of Cal.Law (8th ed. 1974) Torts, § 514 and cases cited.) Within the broad range of reasonable practice and treatment in which professional opinion and judgment may differ, the therapist is free to exercise his or her own best judgment without liability; proof, aided by hindsight, that he or she judged wrongly is insufficient to establish negligence.

In the instant case, however, the pleadings do not raise any question as to failure of defendant therapists to predict that Poddar presented a serious danger of violence. On the contrary, the present complaints allege that defendant therapists did in fact predict that Poddar would kill, but were negligent in failing to warn.

[17 Cal.3d 439] Amicus contends, however, that even when a therapist does in fact predict that a patient poses a serious danger of violence to others, the therapist should be absolved of any responsibility for failing to act to protect the potential victim. In our view, however, once a therapist does in fact determine, or under applicable professional standards reasonably should have determined, that a patient poses a serious danger of violence to others, he bears a duty to exercise reasonable care to protect the foreseeable victim of that danger. While the discharge of this duty of due care will necessarily vary with the facts of each case,^[11] in each instance the adequacy of the therapist's conduct must be measured against the traditional negligence standard of the rendition of reasonable care under the circumstances. (Accord Cobbs v. Grant (1972) 8 Cal.3d 229, 243, 104 Cal.Rptr. 505, 502 p.2d 1.) As explained in Fleming and Maximov, The Patient or His Victim: The Therapist's Dilemma (1974) 62 Cal.L.Rev. 1025, 1067: '. . . the ultimate question of resolving the tension between the conflicting interests of patient and potential victim is one of social policy, not professional expertise. . . . In sum, the therapist owes a legal [131 Cal.Rptr. 26] [551 P.2d 346] duty not only to his patient, but also to his patient's would-be victim and is subject in both respects to scrutiny by judge and jury.'

Contrary to the assertion of amicus, this conclusion is not inconsistent with our recent decision in People v. Burnick, supra, 14 Cal.3d 306, 121 Cal.Rptr. 488, 535 P.2d 352. Taking note of the uncertain character of therapeutic prediction, we held in Burnick that a person cannot be committed as a mentally disordered sex offender unless found to be such by proof beyond a reasonable doubt. (14 Cal.3d at p. 328, 121 Cal.Rptr. 488, 535 P.2d 352.) The issue in the present context, however, is not whether the patient should be incarcerated, but whether the therapist should take any steps at all to protect the threatened victim; some of the alternatives open to the therapist, such as warning the victim, will not result in the drastic consequences of depriving the patient of his liberty. Weighing the uncertain and conjectural character of the alleged damage done the patient by such a warning against the peril to the victim's life, we conclude that professional inaccuracy in predicting violence cannot negate the therapist's duty to protect the threatened victim.

[17 Cal.3d 440] The risk that unnecessary warnings may be given is a reasonable price to pay for the lives of possible victims that may be saved. We would hesitate to hold that the therapist who is aware that his patient expects to attempt to assassinate the President of the United States would not be obligated to warn the authorities because the therapist cannot predict with accuracy that his patient will commit the crime.

Defendants further argue that free and open communication is essential to psychotherapy (see In re Lifschutz (1970) 2 Cal.3d 415, 431--434, 85 Cal.Rptr. 829, 467 P.2d 557); that 'Unless a patient . . . is assured that . . . information (revealed by him) can and will be held in utmost confidence, he will be reluctant to make the full disclosure upon which diagnosis and treatment . . . depends.' (Sen.Com. on Judiciary, comment on Evid.Code, § 1014.) The giving of a warning, defendants contend, constitutes a breach of trust which entails the revelation of confidential communications.^[12]

We recognize the public interest in supporting effective treatment of mental illness and in protecting the rights of patients to privacy (see In re Liftschutz, supra, 2 Cal.3d at p. 432, 85 Cal.Rptr. 829, 467 P.2d 557), and the consequent public importance of safeguarding the confidential character of psychotherapeutic communication. Against this interest, however, we must weigh the public interest in safety from violent assault. The Legislature has undertaken the difficult task of balancing the countervailing concerns. In evidence Code section 1014, it established a broad rule of privilege to protect confidential [131 Cal.Rptr. 27] [551 P.2d 347] Communications between patient and psychotherapist. [17 Cal.3d 441] In Evidence Code section 1024, the Legislature created a specific and limited exception to the psychotherapist-patient privilege: 'There is no privilege . . . if the psychotherapist has reasonable cause to believe that the patient is in such mental or emotional condition as to be dangerous to himself or to the person or property of another and that disclosure of the communication is necessary to prevent the threatened danger.'^[13]

We realize that the open and confidential character of psychotherapeutic dialogue encourages patients to express threats of violence, few of which are ever executed. Certainly a therapist should not be encouraged routinely to reveal such threats; such disclosures could seriously disrupt the patient's relationship with his therapist and with the persons threatened. To the contrary, the therapist's obligations to his patient require that he not disclose a confidence unless such disclosure is necessary to avert danger to others, and even then that he do so discreetly, and in a fashion that would preserve the privacy of his patient to the fullest extent compatible with the prevention of the threatened danger. (See Fleming & Maximov, The Patient or His Victim: The Therapist's Dilemma (1974) 62 Cal.L.Rev. 1025, 1065--1066.)^[14]

The revelation of a communication under the above circumstances is not a breach of trust or a violation of professional ethics; as stated in the Principles of Medical Ethics of the American Medical Association (1957), section 9: 'A physician may not reveal the confidence entrusted to him in the course of medical attendance . . . Unless he is required to do so by law or unless it becomes necessary in order to protect the welfare of [17 Cal.3d 442] the individual or of the community.'^[15] (Emphasis added.) We conclude that the public policy favoring protection of the confidential character of patient-psychotherapist communications must yield to the extent to which disclosure is essential to avert danger to others. The protective privilege ends where the public peril begins.

Our current crowded and computerized society compels the interdependence of its members. In this risk-infested society we can hardly tolerate the further exposure to danger that would result from a concealed knowledge of the therapist that his patient was lethal. If the exercise of reasonable care to protect the threatened victim requires the therapist to warn the endangered party or those who can reasonably be expected to notify him, we see no sufficient societal interest that would protect and justify concealment. The containment of such risks lies in the public interest [131 Cal.Rptr. 28] [551 P.2d 348] For the foregoing reasons, we find that plaintiffs' complaints can be amended to state a cause of action against defendants Moore, Powelson, Gold, and Yandell and against the Regents as their employer, for breach of a duty to exercise reasonable care to protect Tatiana.^[16]

Finally, we reject the contention of the dissent that the provisions of the Lanterman-Petris-Short Act which govern the release of confidential information (Welf. & Inst.Code, §§ 5328--5328.9) prevented defendant therapists from warning Tatiana. The dissent's contention rests on the assertion that Dr. Moore's letter to the campus police constituted an 'application in writing' within the meaning of Welfare and Institutions Code section 5150, and thus initiates proceedings under the Lanterman-Petris-Short Act. A closer look at the terms of section 5150, however, will demonstrate that it is inapplicable to the present case.

Section 5150 refers to a written application only by a professional person who is '(a) member of the attending staff . . . of an evaluation [17 Cal.3d 443] facility designated by the county,' or who is himself 'designated by the county' as one authorized to take a person into custody and place him in a facility designated by the county and approved by the State Department of Mental Hygiene. The complaint fails specifically to allege that Dr. Moore was so empowered. Dr. Moore and the Regents cannot rely upon any inference to the contrary that might be drawn from plaintiff's allegation that Dr. Moore intended to 'assign' a 'detention' on Poddar; both Dr. Moore and the Regents have expressly conceded that neither Cowell Memorial Hospital nor any member of its staff has ever been designated by the County of Alameda to institute involuntary commitment proceedings pursuant to section 5150.

Furthermore, the provisions of the Lanterman-Petris-Short Act defining a therapist's duty to withhold confidential information are expressly limited to 'information and records Obtained in the course of providing services under Division 5 (commencing with Section 5000), Division 6 (commencing with Section 6000), or Division 7 (commencing with Section 7000)' of the Welfare and Institutions Code (Welf. & Inst. Code, § 5328). (Emphasis added.) Divisions 5, 6 and 7 describe a variety of programs for treatment of the mentally ill or retarded.^[17] The pleadings at issue on this appeal, however, state no facts showing that the psychotherapy provided to Poddar by the Cowell Memorial Hospital falls under any of these programs. We therefore conclude that the Lanterman-Petris-Short Act does not govern the release of information acquired by Moore during the course of rendition of those services.

Neither can we adopt the dissent's suggestion that we import wholesale the detailed provisions of the Lanterman-Petris-Short Act regulating the disclosure of confidential information and apply them to disclosure of information Not governed by the act. Since the Legislature did not extend [131 Cal.Rptr. 29] [551 P.2d 349] the act to control all disclosures of confidential matter by a therapist, we must infer that the Legislature did not relieve the courts of their obligation to define by reference to the principles of the common law the obligation of the therapist in those situations not governed by the act.

[17 Cal.3d 444] Turning now to the police defendants, we conclude that they do not have any such special relationship to either Tatiana or to Poddar sufficient to impose upon such defendants a duty to warn respecting Poddar's violent intentions. (See Hartzler v. City of San Jose (1975) 46 Cal.App.3d 6, 9--10, 120 Cal.Rptr. 5; Antique Arts Corp. v. City of Torrance (1974) 39 Cal.App.3d 588, 593, 114 Cal.Rptr. 332.) Plaintiffs suggest no theory,^[18] and plead no facts that give rise to any duty to warn on the part of the police defendants absent such a special relationship. They have thus failed to demonstrate that the trial court erred in denying leave to amend as to the police defendants. (See Cooper v. Leslie Salt Co. (1969) 70 Cal.2d 627, 636, 75 Cal.Rptr. 766, 451 P.2d 406; Filice v. Boccardo (1962) 210 Cal.App.2d 843, 847, 26 Cal.Rptr. 789.)

3. Defendant therapists are not immune from liability for failure to warn.

We address the issue of whether defendant therapists are protected by governmental immunity for having failed to warn Tatiana or those who reasonably could have been expected to notify her of her peril. We postulate our analysis on section 820.2 of the Government Code.^[19] That provision declares, with exceptions not applicable here, that 'a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion (was) abused.'^[20]

[17 Cal.3d 445] Noting that virtually every public act admits of some element of discretion, we drew the line in Johnson v. State of California (1968) 69 Cal.2d 782, 73 Cal.Rptr. 240, 447 P.2d 352, between discretionary policy decisions which enjoy statutory immunity and ministerial administrative acts which do not. We concluded that section 820.2 affords immunity only for 'basic policy decisions.' (Emphasis added.) (See also Elton v. County of Orange (1970) 3 Cal.App.3d 1053, 1057--1058, 84 Cal.Rptr. 27; 4 Cal.Law Revision Com.Rep. (1963) p. 810; Van Alstyne, Supplement to Cal. Government Tort Liability (Cont.Ed.Bar 1969) § 5.54, pp. 16--17; Comment, California Tort Claims Act: Discretionary Immunity (1966) 39 So.Cal.L.Rev. 470, 471; cf. James, Tort Liability of Governmental Units and Their Officers [551 P.2d 350] [131 Cal.Rptr. 30] (1955) 22 U.Chi.L.Rev. 610, 637--638, 640, 642, 651.)

We also observed that if courts did not respect this statutory immunity, they would find themselves 'in the unseemly position of determining the propriety of decisions expressly entrusted to a coordinate branch of government.' (Johnson v. State of California, supra, 69 Cal.2d at p. 793, 73 Cal.Rptr. at p. 248, 447 P.2d at p. 360.) It therefore is necessary, we concluded, to 'isolate those areas of quasilegislative policy-making which are sufficiently sensitive to justify a blanket rule that courts will not entertain a tort action alleging that careless conduct contributed to the governmental decision.' (Johnson v. State of California, supra, at p. 794, 73 Cal.Rptr., at p. 248, 447 P.2d, at p. 360.) After careful analysis we rejected, in Johnson, other rationales commonly advanced to support governmental immunity^[21] and concluded that the immunity's scope should be no greater than is required to give legislative and executive policymakers sufficient breathing space in which to perform their vital policymaking functions.

Relying on Johnson, we conclude that defendant therapists in the present case are not immune from liability for their failure to warn of Tatiana's peril. Johnson held that a parole officer's determination whether to warn an adult couple that their prospective foster child had a background of violence 'present(ed) no . . . reasons for immunity' (Johnson v. State of California, supra, at p. 795, 73 Cal.Rptr. 240, 447 P.2d 352), was 'at the lowest, [17 Cal.3d 446] ministerial rung of official action' (Id., at p. 796, 73 Cal.Rptr. at p. 250, 447 P.2d at p. 362), and indeed constituted 'a classic case for the imposition of tort liability.' (Id., p. 797, 73 Cal.Rptr. p. 251, 447 P.2d, p. 363; cf. Morgan v. County of Yuba, supra, 230 Cal.App.2d 938, 942--943, 41 Cal.Rptr. 508.) Although defendants in Johnson argued that the decision whether to inform the foster parents of the child's background required the exercise of considerable judgmental skills, we concluded that the state was not immune from liability for the parole officer's failure to warn because such a decision did not rise to the level of a 'basic policy decision.'

We also noted in Johnson that federal courts have consistently categorized failures to warn of latent dangers as falling outside the scope of discretionary omissions immunized by the Federal Tort Claims Act.^[22] (See United Air Lines, Inc. v. Wiener (9th Cir. 1964) 335 F.2d 379, 397--398, cert. den. Sub nom. United Air Lines, Inc. v. United States, 379 U.S. 951, 85 S.Ct. [131 Cal.Rptr. 31] [551 P.2d 351] 452, 13 L.Ed.2d 549 (decision to conduct military training flights was discretionary but failure to warn commercial airline was not); United States v. Washington (9th Cir. 1965) 351 F.2d 913, 916 (decision where to place transmission lines spanning canyon was assumed to be discretionary but failure to warn pilot was not); United States v. White (9th Cir. 1954) 211 F.2d 79, 82 (decision not to 'dedud' army firing range assumed to be discretionary but failure to warn person about to go onto range of unsafe condition was not); Bulloch v. United States (D.Utah 1955) 133 F.Supp. 885, 888 (decision how and when to conduct nuclear test deemed discretionary but failure to afford proper notice was not); Hernandez v. United States (D.Hawaii 1953) 112 F.Supp. 369, 371 (decision to erect road block characterized as discretionary but failure to warn of resultant hazard was not).

We conclude, therefore, that the therapist defendants' failure to warn Tatiana or those who reasonably could have been expected to notify her of her peril does not fall within the absolute protection afforded by section 820.2 of the Government Code. We emphasize that our conclusion [17 Cal.3d 447] does not raise the specter of therapists employed by the government indiscriminately being held liable for damage despite their exercise of sound professional judgment. We require of publicly employed therapists only that quantum of care which the common law requires of private therapists. The imposition of liability in those rare cases in which a public employee falls short of this standard does not contravense the language or purpose of Government Code section 820.2.

4. Defendant therapists are immune from liability for failing to confine Poddar.

We sustain defendant therapists' contention that Government Code section 856 insulates them from liability under plaintiffs' first and fourth causes of action for failing to confine Poddar. Section 856 affords public entities and their employees absolute protection from liability for 'any injury resulting from determining in accordance with any applicable enactment . . . whether to confine a person for mental illness.' Since this section refers to a determination to confine 'in accordance with any applicable enactment,' plaintiffs suggest that the immunity is limited to persons designated under Welfare and Institutions Code section 5150 as authorized finally to adjudicate a patient's confinement. Defendant therapists, plaintiffs point out, are not among the persons designated under section 5150.

The language and legislative history of section 856, however, suggest a far broader immunity. In 1963, when section 856 was enacted, the Legislature had not established the statutory structure of the Lanterman-Petris-Short Act. Former Welfare and Institutions Code section 5050.3 (renumbered as Welf. & Inst. Code § 5880; repealed July 1, 1969) which resembled present section 5150, authorized emergency detention at the behest only of peace officers, health officers, county physicians, or assistant county physicians; former section 5047 (renumbered as Welf, & Inst. Code § 5551; repealed July 1, 1969), however, authorized a petition seeking commitment by any person, including the 'physician attending the patient.' The Legislature did not refer in section 856 only to those persons authorized to institute emergency proceedings under section 5050.3; it broadly extended immunity to all employees who acted in accord with 'any applicable enactment,' thus granting immunity not only to persons who are empowered to confine, but also to those authorized to request or recommend confinement.

[17 Cal.3d 448] The Lanterman-Petris-Short Act, in its extensive revision of the procedures for commitment of the mentally ill, eliminated any specific statutory reference to petitions by treating physicians, but it did not limit the authority of a therapist in government employ to request, recommend or initiate actions which may lead to commitment of his patient under the act. We believe that the language of section 856, [131 Cal.Rptr. 32] [551 P.2d 352] which refers to any action in the course of employment and in accordance with any applicable enactment, protects the therapist who must undertake this delicate and difficult task. (See Fleming & Maximov, The Patient or His Victim: The Therapist's Dilemma (1974) 62 Cal.L.Rev. 1025, 1064.) Thus the scope of the immunity extends not only to the final determination to confine or not to confine the person for mental illness, but to all determinations involved in the process of commitment. (Cf. Hernandez v. State of California (1970) 11 Cal.App.3d 895, 899--900, 90 Cal.Rptr. 205.)

Turning first to Dr. Powelson's status with respect to section 856, we observe that the actions attributed to him by plaintiffs' complaints fall squarely within the protections furnished by that provision. Plaintiffs allege Powelson ordered that no actions leading to Poddar's detention be taken. This conduct reflected Powelson's determination not to seek Poddar's confinement and thus falls within the statutory immunity.

Section 856 also insulates Dr, Moore for his conduct respecting confinement, although the analysis in his case is a bit more subtle. Clearly, moore's decision that Poddar Be confined was not a proximate cause of Tatiana's death, for indeed if Moore's efforts to bring about Poddar's confinement had been successful, Tatiana might still be alive today. Rather, any confinement claim against Moore must rest upon Moore's failure to overcome Powelson's decision and actions opposing confinement.

Such a claim, based as it necessarily would be, upon a subordinate's failure to prevail over his superior, obviously would derive from a rather onerous duty. Whether to impose such a duty we need not decide, however, since we can confine our analysis to the question whether Moore's failure to overcome Powelson's decision realistically falls within the protection afforded by section 856. Based upon the allegations before us, we conclude that Moore's conduct is protected.

Plaintiffs' complaints imply that Moore acquiesced in Powelson's countermand of Moore's confinement recommendation. Such acquiescense [17 Cal.3d 449] is functionally equivalent to determining not to seek Poddar's confinement and thus merits protection under section 856. At this stage we are unaware, of course, precisely how Moore responded to powelson's actions; he may have debated the confinement issue with Powelson, for example, or taken no initiative whatsoever, perhaps because he respected Powelson's judgment, feared for his future at the hospital, or simply recognized that the proverbial handwriting was on the wall. None of these possibilities constitutes, however, the type of careless or wrongful behavior subsequent to a decision respecting confinement which is stripped of protection by the exception in section 856.^[23] Rather each is in the nature of a decision not to continue to press for Poddar's confinement. No language in plaintiffs' original or amended complaints suggests that Moore determined to fight Powelson, but failed successfully to do so, due to negligent or otherwise wrongful acts or omissions. Under the circumstances, we conclude that plaintiffs' second amended complaints allege facts which trigger immunity for Dr. Moore under section 856.^[24]

5. Defendant police officers are immune from liability for failing to confine Poddar in their custody.

Confronting, finally, the question whether the defendant police officers are [131 Cal.Rptr. 33] [551 P.2d 353] immune from liability for releasing Poddar after his brief confinement, we conclude that they are. The source of their immunity is section 5154 of the Welfare and Institutions Code, which declares that: '(t)he professional person in charge of the facility providing 72-hour treatment and evaluation, his designee, And the peace officer responsible for the detainment of the person shall not be held civilly or criminally liable for any action by a person released at or before the end of 72 hours . . ..' (Emphasis added.)

Although defendant police officers technically were not 'peace officers' as contemplated by the Welfare and Institutions Code,^[25] [17 Cal.3d 450] plaintiffs' assertion that the officers incurred liability by failing to continue Poddar's confinement clearly contemplates that the officers were 'responsible for the detainment of (Poddar).' We could not impose a duty upon the officers to keep Poddar confined yet deny them the protection furnished by a statute immunizing those 'responsible for . . . (confinement).' Because plaintiffs would have us treat defendant officers as persons who were capable of performing the functions of the 'peace officers' contemplated by the Welfare and Institutions Code, we must accord defendant officers the protections which that code prescribed for such 'peace officers.'

6. Plaintiffs' complaints state no cause of action for exemplary damages.

Plaintiff's third cause of action seeks punitive damages against defendant Powelson. The California statutes and decisions, however, have been interpreted to bar the recovery of punitive damages in a wrongful death action. (See Pease v. Beech Aircraft corp. (1974) 38 Cal.App.3d 450, 460--462, 113 Cal.Rptr. 416, and authorities there cited.)

7. Conclusion

For the reasons stated, we conclude that plaintiffs can amend their complaints to state a cause of action against defendant therapists by asserting that the therapists in fact determined that Poddar presented a serious danger of violence to Tatiana, or pursuant to the standards of their profession should have so determined, but nevertheless failed to exercise reasonable care to protect her from that danger. To the extent, however, that plaintiffs base their claim that defendant therapists breached that duty because they failed to procure Poddar's confinement, the therapists find immunity in Government Code section 856. Further, as to the police defendants we conclude that plaintiffs have failed to show that the trial court erred in sustaining their demurrer without leave to amend.

The judgment of the superior court in favor of defendants Atkinson, Beall, Brownrigg, Hallernan, and Teel is affirmed. The judgment of the superior court in favor of defendants Gold, Moore, Powelson, Yandell, and the Regents of the University of California is reversed, and the cause remanded for further proceedings consistent with the views expressed herein.

WRIGHT, C.J., and SULLIVAN and RICHARDSON, JJ., concur.

[17 Cal.3d 451] MOSK, Justice (concurring and dissenting).

I concur in the result in this instance only because the complaints allege that defendant therapists did in fact predict that Poddar would kill and were therefore negligent in failing to warn of that danger. Thus the issue here is very narrow: we are not concerned with whether the therapists, pursuant to the standards of their profession, 'should have' predicted potential [131 Cal.Rptr. 34] [551 P.2d 354] violence; they allegedly did so in actuality. Under these limited circumstances I agree that a cause of action can be stated.

Whether plaintiffs can ultimately prevail is problematical at best. As the complaints admit, the therapists Did notify the police that Poddar was planning to kill a girl identifiable as Tatiana. While I doubt that more should be required, this issue may be raised in defense and its determination is a question of fact.

I cannot concur, however, in the majority's rule that a therapist may be held liable for failing to predict his patient's tendency to violence if other practitioners, pursuant to the 'standards of the profession,' would have done so. The question is, what standards? Defendants and a responsible amicus curiae, supported by an impressive body of literature discussed at length in our recent opinion in People v. Burnick (1975) 14 Cal.3d 306, 121 Cal.Rptr. 488, 535 P.2d 352, demonstrate that psychiatric predictions of violence are inherently unreliable.

In Burnick, at pages 325--326, 121 Cal.Rptr. at page 501, 535 P.2d at page 365, we observed: 'In the light of recent studies it is no longer heresy to question the reliability of psychiatric predictions. Psychiatrists themeselves would be the first to admit that however desirable an infallible crystal ball might be, it is not among the tools of their profession. It must be conceded that psychiatrists still experience considerable difficulty in confidently and accurately Diagnosing mental illness. Yet those difficulties are multiplied manyfold when psychiatrists venture from diagnosis to prognosis and undertake to predict the consequences of such illness: "A diagnosis of mental illness tells us nothing about whether the person so diagnosed is or is not dangerous. Some mental patients are dangerous, some are not. Perhaps the psychiatrist is an expert at deciding whether a person is mentally ill, but is he an expert at predicting which of the persons so diagnosed are dangerous? Sane people, too, are dangerous, and it may legitimately be inquired whether there is anything in the education, training or experience of psychiatrists which renders them particularly adept at predicting dangerous behavior. Predictions of dangerous behavior, no [17 Cal.3d 452] matter who makes them, are incredibly inaccurate, and there is a growing consensus that psychiatrists are not uniquely qualified to predict dangerous behavior and are, in fact, less accurate in their predictions than other professionals." (Murel v. Baltimore City Criminal Court (1972) . . . 407 U.S. 355, 364--365, fn. 2, 92 S.Ct. 2091, 32 L.Ed.2d 791, 796--797 (Douglas, J., dissenting from dismissal of certiorari).)' (Fns. omitted.) (See also authorities cited at p. 327 & fn. 18 of 14 Cal.3d, 121 Cal.Rptr. 488, 535 P.2d 352.)

The majority confidently claim their opinion is not offensive to Burnick, on the stated ground that Burnick involved proceedings to commit an alleged mentally disordered sex offender and this case does not. I am not so sanguine about the distinction. Obviously the two cases are not factually identical, but the similarity in issues is striking: in Burnick we were likewise called upon to appraise the ability of psychiatrists to perdict dangerousness, and while we declined to bar all such testimony (Id. at pp. 327--328, 121 Cal.Rptr. 488, 535 P.2d 352) we found it so inherently untrustworthy that we would permit confinement even in a so-called civil proceeding only upon proof beyond a reasonable doubt.

I would restructure the rule designed by the majority to eliminate all reference to conformity to standards of the profession in predicting violence. If a psychiatrist does in fact predict violence, then a duty to warn arises. The majority's expansion of that rule will take us from the world of reality into the wonderland of clairvoyance.

CLARK, Justice (dissenting).

Until today's majority opinion, both legal and medical authorities have agreed that confidentiality is essential to effectively treat the mentally ill, and that imposing a [131 Cal.Rptr. 35] [551 P.2d 355] duty on doctors to disclose patient threats to potential victims would greatly impair treatment. Further, recognizing that effective treatment and society's safety are necessarily intertwined, the Legislature has already decided effective and confidential treatment is preferred over imposition of a duty to warn.

The issue whether effective treatment for the mentally ill should be sacrificed to a system of warnings is, in my opinion, properly one for the Legislature, and we are bound by its judgment. Moreover, even in the absence of clear legislative direction, we must reach the same conclusion because imposing the majority's new duty is certain to result in a net increase in violence.

The majority rejects the balance achieved by the Legislature's Lanterman-Petris-Short Act. (Welf. & Inst. Code, § 5000 et seq., [17 Cal.3d 453] hereafter the act.)^[1] In addition, the majority fails to recognize that, even absent the act, overwhelming policy considerations mandate against sacrificing fundamental patient interests without gaining a corresponding increase in public benefit.

STATUTORY PROVISIONS

Although the parties have touched only briefly on the nondisclosure provisions of the act, amici have pointed out their importance. The instant case arising after ruling on demurrer, the parties must confront the act's provisions in the trial court. In these circumstances the parties' failure to fully meet the provisions of the act would not justify this court's refusal to discuss and apply the law.

Having a grave impact on future treatment of the mentally ill in our state, the majority opinion clearly transcends the interests of the immediate parties and must discuss all applicable law. It addicates judicial responsibility to refuse to recognize the clear legislative policy reflected in the act.

Effective 1 July 1969, the Legislature created a comprehensive statutory resolution of the rights and duties of both the mentally infirm and those charged with their care and treatment. The act's purposes include ending inappropriate commitment, providing prompt care, protecting public safety, and safeguarding personal rights. (§ 5001.) The act applies to both voluntary and involuntary commitment, and to both public and private institutions; it details legal procedure for commitment; it enumerates the legal and civil rights of persons committed; and it spells out the duties, liabilities and rights of the psychotherapist. Thus the act clearly evinces the Legislature's weighing of the countervailing concerns presently before us--when a patient has threatened a third person during psychiatric treatment.

Reflecting legislative recognition that disclosing confidences impairs effective treatment of the mentally ill, and thus is contrary to the best interests of society, the act establishes the therapist's duty to Not disclose. Section 5328 provides in part that '(a)ll information and records obtained in the course of providing services . . . to either voluntary or involuntary recipients of services Shall be confidential.' (Italics added.) Further, a patient may enjoin disclosure in violation of statute and may [17 Cal.3d 454] recover the greater of $500 or three times the amount of actual damage for unlawful disclosure. (§ 5330.)

However, recognizing that some private and public interests must override the patient's, the Legislature established several limited exceptions to confidentiality.^[2] The [131 Cal.Rptr. 36] [551 P.2d 356] limited nature of these exceptions and the [17 Cal.3d 455] legislative concern that disclosure might impair treatment, thereby harming both patient and society, are shown by section 5328.1. The section provides that a therapist may disclose 'to a member of the family of a patient the information that the patient is presently a patient in the facility or that the patient is seriously physically ill . . . if the professional person in charge of the facility determines that the release of such information is in the best interest of the patient.' Thus, disclosing even the fact of treatment is severely limited.

As originally enacted the act contained no provision allowing the therapist to warn anyone of a patient's threat. In 1970, however, the act was amended to permit disclosure in two limited circumstances. Section 5328 was amended, in subdivision (g), to allow disclosure '(t)o governmental [131 Cal.Rptr. 37] [551 P.2d 357] law enforcement agencies as needed for the protection of federal and state elective constitutional officers and their families.' (Italics added.) In addition, section 5328.3 was added to provide that when 'necessary for the protection of the patient or Others due to the patient's disappearance from, without prior notice to, a designated facility and his whereabouts is unknown, notice of such disappearance May be made to Relatives and governmental law enforcement agencies designated by the physician in charge of the patient or the professional person in charge of the facility or his designee.' (Italics added.)

Obviously neither exception to the confidentiality requirement is applicable to the instant case.

Not only has the Legislature specifically dealt with disclosure and warning, but it also has dealt with therapist and police officer liability for acts of the patient. The Legislature has provided that the therapist and the officer shall not be liable for prematurely releasing the patient. (§§ 5151, 5154, 5173, 5278, 5305, 5306.)

[17 Cal.3d 456] Ignoring the act's detailed provisions, the majority has chosen to focus on the 'dangerous patient exception' to the psychotherapist-patient privilege in Evidence Code section 1014, 1024 as indicating that 'the Legislature has undertaken the difficult task of balancing the countervailing concerns.' (Ante, p. 440, p. 26 of 131 Cal.Rptr., p. 346 of 551 P.2d.) However, this conclusion is erroneous. The majority fails to appreciate that when disclosure is permitted in an evidentiary hearing, a fourth interest comes into play--the court's concern in judicial supervision. Because they are necessary to the administration of justice, disclosures to the courts are excepted from the nondisclosure requirement by section 5328, subdivision (f). However, this case does not involve a court disclosure. Subdivision (f) and the Evidence Code sections relied on by the majority are clearly inapposite.

The provisions of the act are applicable here. Section 5328 (see fn. 2, Supra) provides, 'All information and records obtained in the course of providing services under Division 5 . . . shall be confidential.' (Italics added.) Dr. Moore's letter describing Poddar's mental condition for purposes of obtaining 72-hour commitment was undisputedly a transmittal of information designed to invoke application of division 5. As such it constituted information obtained in providing services under division 5. This is true regardless of whether Dr. Moore has been designated a professional person by the County of Alameda. Although section 5150 provides that commitment for 72 hours' evaluation shall be based on a statement by a peace officer or person designated by the county, section 5328 prohibits disclosure of All information, not just disclosure of the committing statement or disclosure by persons designated by the county. In addition, section 5330 gives the patient a cause of action for disclosure of confidential information by 'an individual' rather than the persons enumerated in section 5150.

Moreover, it appears from the allegations of the complaint that Dr. Moore is in fact a person designated by the county under section 5150. The complaint alleges that 'On or about August 20, 1969, defendant Dr. Moore notified Officers Atkinson and Teel, he would give the campus police a letter of diagnosis on Prosenjit Poddar, so the campus police could pick up Poddar and take him to Herrick Hospital in Berkeley where Dr. Moore would assign a 72-hour Emergency Psychiatric Detention on Prosenjit Poddar.' Since there is no allegation that Dr. Moore was not authorized to sign the document, it must be concluded that under the allegations of the complaint he was authorized and thus a professional person designated by the county.

[17 Cal.3d 457] Whether we rely on the facts as stated in the complaint that Dr. Moore is a designated person under section 5150 or on the strict prohibitions of section 5328 prohibiting disclosure of 'all information,' the imposition of a duty to warn by the majority [131 Cal.Rptr. 38] [551 P.2d 358] flies directly in the face of the Lanterman-Petris-Short act.

Under the act, there can be no liability for Poddar's premature release. It is likewise clear there exists no duty to warn. Under section 5328, the therapists were under a duty To not disclose, and no exception to that duty is applicable here. Establishing a duty to warn on the basis of general tort principles imposes a Draconian dilemma on therapists--either violate the act thereby incurring the attendant statutory penalties, or ignore the majority's duty to warn thereby incurring potential civil liability. I am unable to assent to such.

If the majority feels that it must impose such a dilemma, then it has an obligation to specifically enumerate the circumstances under which the Lanterman-Petris-Short Act applies as opposed to the circumstances when 'general tort principles' will govern. The majority's failure to perform this obligation--leaving to the therapist the subtle questions as to when each opposing rule applies--is manifestly unfair.

DUTY TO DISCLOSE IN THE ABSENCE OF CONTROLLING STATUTORY PROVISION

Even assuming the act's provisions are applicable only to conduct occurring after commitment, and not to prior conduct, the act remains applicable to the most dangerous patients--those committed. The Legislature having determined that the balance of several interests requires nondisclosure in the graver public danger commitment, it would be anomalous for this court to reweigh the interests, requiring disclosure for those less dangerous. Rather, we should follow the legislative direction by refusing to require disclosure of confidential information received by the therapist either before or in the absence of commitment. The Legislature obviously is more capable than is this court to investigate, debate and weigh potential patient harm through disclosure against the risk of public harm by nondisclosure. We should defer to its judgment.

COMMON LAW ANALYSIS

Entirely apart from the statutory provisions, the same result must be reached upon considering both general tort principles and the public [17 Cal.3d 458] policies favoring effective treatment, reduction of violence, and justified commitment.

Generally, a person owes no duty to control the conduct of another. (Richards v. Stanley (1954) 43 Cal.2d 60, 65, 271 P.2d 23; Wright v. Arcade School Dist. (1964) 230 Cal.App.2d 272, 277, 40 Cal.Rptr. 812; Rest.2d Torts (1965) § 315.) Exceptions are recognized only in limited situations where (1) a special relationship exists between the defendant and injured party, or (2) a special relationship exists between defendant and the active wrongdoer, imposing a duty on defendant to control the wrongdoer's conduct. The majority does not contend the first exception is appropriate to this case.

Policy generally determines duty. (Dillon v. Legg (1968) 68 Cal.2d 728, 734, 69 Cal.Rptr. 72, 441 P.2d 912.) Principal policy considerations include foreseeability of harm, certainty of the plaintiff's injury, proximity of the defendant's conduct to the plaintiff's injury, moral blame attributable to defendant's conduct, prevention of future harm, burden on the defendant, and consequences to the community. (Rowland v. Christian (1968) 69 Cal.2d 108, 113, 70 Cal.rptr. 97, 443 P.2d 561.)

Overwhelming policy considerations weigh against imposing a duty on psychotherapists to warn a potential victim against harm. While offering virtually no benefit to society, such a duty will frustrate psychiatric treatment, invade fundamental patient rights and increase violence.

The importance of psychiatric treatment and its need for confidentiality have been recognized by this court. (In re Lifschutz (1970) 2 Cal.3d 415, 421--422, 85 Cal.Rptr. 829, 467 P.2d 557.) 'It is clearly recognized that the very practice of psychiatry vitally depends upon the reputation in the community that the psychiatrist will not tell.' (Slovenko, Psychiatry and a Second [131 Cal.Rptr. 39] [551 P.2d 359] Look at the Medical Privilege (1960) 6 Wayne L.Rev. 175, 188.)

Assurance of confidentiality is important for three reasons.

DETERRENCE FROM TREATMENT

First, without substantial assurance of confidentiality, those requiring treatment will be deterred from seeking assistance. (See Sen. Judiciary Com. comment accompanying § 1014 of Evid.Code; Slovenko, Supra, 6 [17 Cal.3d 459] Wayne L.Rev. 175, 187--188; Goldstein & Katz, Psychiatrist-Patient Privilege: The GAP Proposal and the Connecticut Statute (1962) 36 Conn.Bar J. 175, 178.) It remains an unfortunate fact in our society that people seeking psychiatric guidance tend to become stigmatized. Apprehension of such stigma--apparently increased by the propensity of people considering treatment to see themselves in the worst possible light--creates a well-recognized reluctance to seek aid. (Fisher, The Psychotherapeutic Professions and the Law of Privileged Communications (1964) 10 Wayne L.Rev. 609, 617; Slovenko, Supra, 6 Wayne L.Rev. 175, 188; see also Rappeport, Psychiatrist-Patient Privilege (1963) 23 Md.L.J. 39, 46--47.) This reluctance is alleviated by the psychiatrist's assurance of confidentiality.

FULL DISCLOSURE

Second, the guarantee of confidentiality is essential in eliciting the full disclosure necessary for effective treatment. (In re Lifschutz, supra, 2 Cal.3d 415, 431, 85 Cal.Rptr. 829, 467 P.2d 557; Taylor v. United States (1955), 95 U.S.App.D.C. 373, 222 F.2d 398, 401; Goldstein & Katz, Supra, 36 Conn.Bar J. 175, 178; Heller, Some Comments to Lawyers on the Practice of Psychiatry (1957) 30 Temp.L.Q. 401; Guttmacher & Weihofen, Privileged Communications Between Psychiatrist and Patient (1952) 28 Ind.L.J. 32, 34.)^[3] The psychiatric patient approaches treatment with conscious and unconscious inhibitions against revealing his innermost thoughts. 'Every person, however well-motivated, has to overcome resistances to therapeutic exploration. These resistances seek support from every possible source and the possibility of disclosure would easily be employed in the service of resistance.' (Goldstein & Katz, Supra, 36 Conn.Bar J. 175, 179; see also, 118 Am.J.Psych. 734, 735.) Until a patient can trust his psychiatrist not to violate their confidential relationship, 'the unconscious psychological control mechanism of repression will prevent the recall of past experiences.' (Butler, Psychotherapy and Griswold: Is Confidentiality a Privilege or a Right? (1971) 3 Conn.L.Rev. 599, 604.)

SUCCESSFUL TREATMENT

Third, even if the patient fully discloses his thoughts, assurance that the confidential relationship will not be breached is necessary to [17 Cal.3d 460] maintain his trust in his psychiatrist--the very means by which treatment is effected. '(T) he essence of much psychotherapy is the contribution of trust in the external world and ultimately in the self, modelled upon the trusting relationship established during therapy.' (Dawidoff, The Malpractice of Psychiatrists, 1966 Duke L.J. 696, 704.) Patients will be helped only if they can form a trusting relationship with the psychiatrist. (Id. at p. 704, fn. 34; Burham, Separation Anxiety (1965) 13 Arch.Gen. Psychiatry 346, 356; Heller, Supra, 30 Temp.L.Q. 401, 406.) All authorities appear to agree that if the trust relationship cannot be developed because of collusive communication between the psychiatrist and others, treatment will be frustrated. (See, e.g., Slovenko (1973) Psychiatry and Law, p. 61; Cross, Privileged Communications Between Participants in Group Psychotherapy (1970) Law and the Social Order, 191, 199; Hollender, The [131 Cal.Rptr. 40] [551 P.2d 360] Psychiatrist and the Release of Patient Information (1960) 116 Am.J. Psychiatry 828, 829.)

Given the importance of confidentiality to the practice of psychiatry, it becomes clear the duty to warn imposed by the majority will cripple the use and effectiveness of psychiatry. Many people, potentially violent--yet susceptible to treatment--will be deterred from seeking it; those seeking it will be inhibited from making revelations necessary to effective treatment; and, forcing the psychiatrist to violate the patient's trust will destory the interpersonal relationship by which treatment is effected.

VIOLENCE AND CIVIL COMMITMENT

By imposing a duty to warn, the majority contributes to the danger to society of violence by the mentally ill and greatly increases the risk of civil commitment--the total deprivation of liberty--of those who should not be confined.^[4] The impairment of treatment and risk of improper commitment resulting from the new duty to warn will not be limited to a few patients but will extend to a large number of the mentally ill. [17 Cal.3d 461] Although under existing psychiatric procedures only a relatively few receiving treatment will ever present a risk of violence, the number making threats is huge, and it is the latter group--not just the former--whose treatment will be impaired and whose risk of commitment will be increased.

Both the legal and psychiatric communities recognize that the process of determining potential violence in a patient is far from exact, being fraught with complexity and uncertainty. (E.g., People v. Burnick (1975) 14 Cal.3d 306, 326, 121 Cal.Rptr. 488, 535 P.2d 352, quoting from Murel v. Baltimore City Criminal Court (1972) 407 U.S. 355, 364--365, fn. 2, 92 S.Ct. 2091, 32 L.Ed.2d 791 (Douglas, J., dissenting from dismissal of certiorari); Ennis & Litwack, Psychiatry and the Presumption of Expertise: Flipping Coins in the Courtroom, 62 Cal.L.Rev. 693, 711--716; Rector, Who Are the Dangerous? (July 1973) Bull. of Amer.Acad. of Psych. & L. 186; Kozol, Boucher & Garofalo, The Diagnosis and Treatment of Dangerousness (1972) 18 Crime & Delinquency 371; Justice & Birkman, An Effort to Distinguish the Violent From the Nonviolent (1972) 65 So.Med.J. 703.)^[5] In fact precision has not even been [131 Cal.Rptr. 41] [551 P.2d 361] attained in predicting who of those having already committed violent acts will again become violent, a task recognized to be of much simpler propertions. (Kozol, Boucher & Garofalo, Supra, 18 Crime & Delinquency 371, 384.)

This predictive uncertainty means that the number of disclosures will necessarily be large. As noted above, psychiatric patients are encouraged to discuss all thoughts of violence, and they often express such thoughts. However, unlike this court, the psychiatrist does not enjoy the benefit of [17 Cal.3d 462] overwhelming hindsight in seeing which few, if any, of his patients will ultimately become violent. Now, confronted by the majority's new duty, the psychiatrist must instantaneously calculate potential violence from each patient on each visit. The difficulties researchers have encountered in accurately predicting violence will be heightened for the practicing psychiatrist dealing for brief periods in his office with heretofore nonviolent patients. And, given the decision not to warn or commit must always be made at the psychiatrist's civil peril, one can expect most doubts will be resolved in favor of the psychiatrist protecting himself.

Neither alternative open to the psychiatrist seeking to protect himself is in the public interest. The warning itself is an impairment of the psychiatrist's ability to treat, depriving many patients of adequate treatment. It is to be expected that after disclosing their threats, a significant number of patients, who would not become violent if treated according to existing practices, will engage in violent conduct as a result of unsuccessful treatment. In short, the majority's duty to warn will not only impair treatment of many who would never become violent but worse, will result in a net increase in violence.^[6]

[17 Cal.3d 463] The second alternative open to the psychiatrist is to commit his patient rather than to warn. Even in the absence of threat of civil liability, the doubts of psychiatrists [131 Cal.Rptr. 42] [551 P.2d 362] as to the seriousness of patient threats have led psychiatrists to overcommit to mental institutions. This overcommitment has been authoritatively documented in both legal and psychiatric studies. (Ennis & Litwack, Psychiatry and the Presumption of Expertise: Flipping Coins in the Courtroom, supra, 62 Cal.L.Rev. 693, 711 et seq., Fleming & Maximov, The Patient or His Victim: The Therapist's Dilemma, 62 Cal.L.Rev. 1025, 1044--1046; Am. Psychiatric Assn. Task Force Rep. 8 (July 1974) Clinical Aspects of the Violent Individual, pp. 23--24; see Livermore, Malmquist & Meehl, On the Justifications for Civil Commitment, 117 U.Pa.L.Rev. 75, 84.) This practice is so prevalent that it has been estimated that 'as many as twenty harmless persons are incarcerated for every one who will commit a violent act.' (Steadman & Cocozza, Stimulus/Response: We Can't Predict Who is Dangerous (Jan. 1975) 8 Psych. Today 32, 35.)

Given the incentive to commit created by the majority's duty, this already serious situation will be worsened, contrary to Chief Justice Wright's admonition 'that liberty is no less precious because forfeited in a civil proceeding than when taken as a consequence of a criminal conviction.' (In re W. (1971) 5 Cal.3d 296, 307, 96 Cal.Rptr. 1, 9, 486 P.2d 1201, 1209.) CONCLUSION

In adopting the act, the Legislature fully recognized the concerns that must govern our decision today--adequate treatment for the mentally ill, safety of our society, and our devotion to individual liberty, making overcommitment of the mentally ill abhorrent. (§ 5001.) Again, the Legislature balanced these concerns in favor of nondisclosure (§ 5328), thereby promoting effective treatment, reducing temptation for over-commitment, and ensuring greater safety for our society. Psychiatric and legal expertise on the subject requires the same judgment.

The tragedy of Tatiana Tarasoff has led the majority to disregard the clear legislative mandate of the Lanterman-Petris-Short Act. Worse, the majority impedes medical treatment, resulting in increased violence from--and deprivation of liberty to--the mentally ill.

[17 Cal.3d 464] We should accept legislative and medical judgment, relying upon effective treatment rather than on indiscriminate warning.

The judgment should be affirmed.

McCOMB, J., concurs.

[1] The criminal prosecution stemming from this crime is reported in People v. Poddar (1974) 10 Cal.3d 750, 111 Cal.Rptr. 910, 518 P.2d 342.

[2] The therapist defendants include Dr. Moore, the psychologist who examined Poddar and decided that Poddar should be committed; Dr. Gold and Dr. Yandell, psychiatrists at Cowell Memorial Hospital who concurred in Moore's decision; and Dr. Powelson, chief of the department of psychiatry, who countermanded Moore's decision and directed that the staff take no action to confine Poddar. The police defendants include Officers Atkinson, Brownrigg and Halleran, who detained Poddar briefly but released him; Chief Beall, who received Moore's letter recommending that Poddar be confined; and Officer Teel, who, along with Officer Atkinson, received Moore's oral communication requesting detention of Poddar.

[3] Plaintiffs' complaints alleged merely that defendant therapists failed to warn plaintiffs--Tatiana's parents--of the danger to Tatiana. The complaints do not allege that defendant therapists failed to warn Tatiana herself, or failed to warn persons other than her parents who would be likely to apprise Tatiana of the danger. Such omissions can properly be cured by amendment. As we stated in Minsky v. City of Los Angeles (1974) 11 Cal.3d 113, 118--119, 113 Cal.Rptr. 102, 107, 520 P.2d 726, 731: 'It is axiomatic that if there is a reasonable possibility that a defect in the complaint can be cured by amendment or that the pleading liberally construed can state a cause of action, a demurrer should not be sustained without leave to amend.' (Accord, La Sala v. American Sav. & Loan Assn. (1971) 5 Cal.3d 864, 876, 97 Cal.Rptr. 849, 489 P.2d 1113; Lemoge Electric v. County of San Mateo (1956) 46 Cal.2d 659, 664, 297 P.2d 638; Beckstead v. Superior Court (1971) 21 Cal.App.3d 780, 782, 98 Cal.Rptr. 779.)

[4] See Merrill v. Buck (1962) 58 Cal.2d 552, 562, 25 Cal.Rptr. 456, 375 P.2d 304; Biakanja v. Irving (1958) 49 Cal.2d 647, 650, 320 P.2d 16; Walnut Creek Aggregates Co. v. Testing Engineers Inc. (1967) 248 Cal.App.2d 690, 695, 56 Cal.Rptr. 700.

[5] This rule derives from the common law's distinction between misfeasance and nonfeasance, and its reluctance to impose liability for the latter. (See Harper & Kime, The Duty to Control the Conduct of Another (1934) 43 Yale L.J. 886, 887.) Morally questionable, the rule owes its survival to 'the difficulties of setting any standards of unselfish service to fellow men, and of making any workable rule to cover possible situations where fifty people might fail to rescue . . .' (Prosser, Torts (4th ed. 1971) § 56, p. 341.) Because of these practical difficulties, the courts have increased the number of instances in which affirmative duties are imposed not by direct rejection of the common law rule, but by expanding the list of special relationships which will justify departure from that rule. (See Prosser, Supra, § 56, at pp. 348--350.)

[6] The pleadings establish the requisite relationship between Poddar and both Dr. Moore, the therapist who treated Poddar, and Dr. Powelson, who supervised that treatment. Plaintiffs also allege that Dr. Gold personally examined Poddar, and that Dr. Yandell, as Powelson's assistant, approved the decision to arrange Poddar's commitment. These allegations are sufficient to raise the issue whether a doctor-patient or therapist-patient relationship, giving rise to a possible duty by the doctor or therapist to exercise reasonable care to protect a threatened person of danger arising from the patient's mental illness, existed between Gold or Yandell and Poddar. (See Harney, Medical Malpractice (1973) p. 7.)

[7] When a 'hospital has notice or knowledge of facts from which it might reasonably be concluded that a patient would be likely to harm himself Or others unless preclusive measures were taken, then the hospital must use reasonable care in the circumstances to prevent such harm.' (Vistica v. Presbyterian Hospital (1967) 67 Cal.2d 465, 469, 62 Cal.Rptr. 577, 580, 432 P.2d 193, 196.) (Emphasis added.) A mental hospital may be liable if it negligently permits the escape or release of a dangerous patient (Semler v. Psychiatric Institute of Washington, D.C. (4th Cir. 1976) 44 U.S.L.Week 2439; Underwood v. United States (5th Cir. 1966) 356 F.2d 92; Fair v. United States (5th Cir. 1956) 234 F.2d 288). Greenberg v. Barbour (E.D.Pa. 1971) 322 F.Supp. 745, upheld a cause of action against a hospital staff doctor whose negligent failure to admit a mental patient resulted in that patient assaulting the plaintiff.

[8] Kaiser v. Suburban Transp. System (1965) 65 Wash.2d 461, 398 P.2d 14; see Freese v. Lemmon (Iowa 1973) 210 N.W.2d 576 (concurring opn. of Uhlenhopp. J.).

[9] Ellis v. D'Angelo (1953) 116 Cal.App.2d 310, 253 P.2d 675, upheld a cause of action against parents who failed to warn a babysitter of the violent proclivities of their child; Johnson v. State of California (1968) 69 Cal.2d 782, 73 Cal.Rptr. 240, 447 P.2d 352, upheld a suit against the state for failure to warn foster parents of the dangerous tendencies of their ward; Morgan v. City of Yuba (1964) 230 Cal.App.2d 938, 41 Cal.Rptr. 508, sustained a cause of action against a sheriff who had promised to warn decedent before releasing a dangerous prisoner, but failed to do so.

[10] See, e.g., People v. Burnick (1975) 14 Cal.3d 306, 325--328, 121 Cal.Rptr. 488, 535 P.2d 352; Monahan, The Prevention of Violence, in Community Mental Health in the Criminal Justice System (Monahan ed. 1975); Diamond, The Psychiatric Prediction of Dangerousness (1975) 123 U.Pa.L.Rev. 439; Ennis & Litwack, Psychiatry and the Presumption of Expertise: Flipping Coins in the Courtroom (1974) 62 Cal.L.Rev. 693.

[11] Defendant therapists and amicus also argue that warnings must be given only in those cases in which the therapist knows the identity of the victim. We recognize that in some cases it would be unreasonable to require the therapist to interrogate his patient to discover the victim's identity, or to conduct an independent investigation. But there may also be cases in which a moment's reflection will reveal the victim's identity. The matter thus is one which depends upon the circumstances of each case, and should not be governed by any hard and fast rule.

[12] Counsel for defendant Regents and amicus American Psychiatric Association predict that a decision of this court holding that a therapist may bear a duty to warn a potential victim will deter violence-prone persons from seeking therapy, and hamper the treatment of other patients. This contention was examined in Fleming and Maximov, The Patient or His Victim: The Therapist's Dilemma (1974) 62 Cal.L.Rev. 1025, 1038--1044; they conclude that such predictions are entirely speculative. In In re Lifschutz, supra, 2 Cal.3d 415, 85 Cal.Rptr. 829, 467 P.2d 557, counsel for the psychiatrist argued that if the state could compel disclosure of some psychotherapeutic communications, psychotherapy could no longer be practiced successfully. (2 Cal.3d at p. 426, 85 Cal.Rptr. 829, 467 P.2d 557.) We rejected that argument, and it does not appear that our decision in fact adversely affected the practice of psychotherapy in California. Counsel's forecast of harm in the present case strikes us as equally dubious.

We note, moreover, that Evidence Code section 1024, enacted in 1965, established that psychotherapeutic communication is not privileged when disclosure is necessary to prevent threatened danger. We cannot accept without question counsels' implicit assumption that effective therapy for potentially violent patients depends upon either the patient's lack of awareness that a therapist can disclose confidential communications to avert impending danger, or upon the therapist's advance promise never to reveal nonprivileged threats of violence.

[13] Fleming and Maximov note that 'While (section 1024) supports the therapist's less controversial Right to make a disclosure, it admittedly does not impose in him a Duty to do so. But the argument does not have to be pressed that far. For if it is once conceded . . . that a duty in favor of the patient's foreseeable victims would accord with general principles of tort liability, we need to longer look to the statute for a source of duty. It is sufficient if the statute can be relied upon . . . for the purposes of countering the claim that the needs of confidentiality are paramount and must therefore defeat any such hypothetical duty. In this more modest perspective, the Evidence Code's 'dangerous patient' exception may be invoked with some confidence as a clear expression of legislative policy concerning the balance between the confidentiality values of the patient and the safety values of his foreseeable victims.' (Emphasis in original.) Fleming & Maximov, The Patient or His Victim: The Therapist's Dilemma (1974) 62 Cal.L.Rev. 1025, 1063.

[14] Amicus suggests that a therapist who concludes that his patient is dangerous should not warn the potential victim, but institute proceedings for involuntary detention of the patient. The giving of a warning, however, would in many cases represent a far lesser inroad upon the patient's privacy than would involuntary commitment.

[15] See also Summary Report of the Task Force on Confidentiality of the Council on Professions and Associations of the American Psychiatric Association (1975).

[16] Moore argues that after Powelson countermanded the decision to seek commitment for Poddar, Moore was obliged to obey the decision of his superior and that therefore he should not be held liable for any dereliction arising from his obedience to superior orders. Plaintiffs in response contend that Moore's duty to members of the public endangered by Poddar should take precedence over his duty to obey Powelson. Since plaintiffs' complaints do not set out the date of Powelson's order, the specific terms of that order, or Powelson's authority to overrule Moore's decisions respecting patients under Moore's care, we need not adjudicate this conflict; we pass only upon the pleadings at this stage and decide if the complaints can be amended to state a cause of action.

[17] Division 5 includes the Lanterman-Petris-Short Act and the Short-Doyle Act (community mental health services). Division 6 relates to programs for treatment of persons judicially committed as mentally disordered sex offenders or mentally retarded. Division 7 encompasses treatment at state and county mental hospitals, the Langley Porter Neuropsychiatric Institute and the Neuropsychiatric Institute of the U.C.L.A. Medical Center.

[18] We have considered Sua sponte whether plaintiffs' complaints could be amended to assert a cause of action against the police defendants under the principles of Restatement Second of Torts (1965), section 321, which provides that 'If the actor does an act, and subsequently realizes or should realize that it has created an unreasonable risk of causing physical harm to another, he is under a duty to exercise reasonable care to prevent the risk from taking effect.' (See Hartzler v. City of San Jose, supra, 46 Cal.App.3d 6, 10, 120 Cal.Rptr. 5.) The record, however, suggests no facts which, if inserted into the complaints, might form the foundation for such cause of action. The assertion of a cause of action against the police defendants under this theory would raise difficult problems of causation and of public policy, which should not be resolved on the basis of conjectural facts not averred in the pleadings or in any proposed amendment to those pleadings.

[19] No more specific immunity provision of the Government Code appears to address the issue.

[20] Section 815.2 of the Government Code declares that '(a) public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee or his personal representative.' The section further provides, with exceptions not applicable here, that 'a public entity is not liable for an injury resulting from an act or omission of an employee of the public entity where the employee is immune from liability.' The Regents, therefore, are immune from liability only if all individual defendants are similarly immune.

[21] We dismissed, in Johnson, the view that immunity continues to be necessary in order to insure that public employees will be sufficiently zealous in the performance of their official duties. The California Tort Claims Act of 1963 provides for indemnification of public employees against liability, absent bad faith, and also permits such employees to insist that their defenses be conducted at public expense. (See Gov.Code, §§ 825--825.6, 995--995.2.) Public employees thus no longer have a significant reason to fear liability as they go about their official tasks. We also, in Johnson, rejected the argument that a public employee's concern over the potential liability of his or her employer serves as a basis for immunity. (Johnson v. State of California, supra, at pp. 790--793, 73 Cal.Rptr. 240, 447 P.2d 352.)

[22] By analogy, section 830.8 of the Government Code furnishes additional support for our conclusion that a failure to warn does not fall within the zone of immunity created by section 820.2. Section 830.8 provides: 'Neither a public entity nor a public employee is liable . . . for an injury caused by the failure to provide traffic or warning signals, signs, markings or devices described in the Vehicle Code. Nothing in this section exonerates a public entity or public employee from liability for injury proximately caused by such failure if a signal, sign, marking or device . . . was necessary to warn of a dangerous condition which endangered the safe movement of traffic and which would not be reasonably apparent to, and would not have been anticipated by, a person exercising due care.' The Legislature thus concluded at least in another context that the failure to warn of a latent danger is not an immunized discretionary omission. (See Hilts v. County of Solano (1968) 265 Cal.App.2d 161, 174, 71 Cal.Rptr. 275.)

[23] Section 856 includes the exception to the general rule of immunity 'for injury proximately caused by . . . negligent or wrongful acts or omission in carrying out or failing to carry out . . . a determination to confine or not to confine a person for mental illness . . ..'

[24] Because Dr. Gold and Dr. Yandell were Dr. Powelson's subordinates, the analysis respecting whether they are immune for having failed to obtain Poddar's confinement is similar to the analysis applicable to Dr. Moore.

[25] Welfare and Institutions Code section 5008, subdivision (i), defines 'peace officer' for purposes of the Lanterman-Petris-Short Act as a person specified in sections 830.1 and 830.2 of the Penal Code. Campus police do not fall within the coverage of section 830.1 and were not included in section 830.2 until 1971.

__________

[1] All statutory references, unless otherwise stated, are to the Welfare and Institutions Code.

[2] Section 5328 provides:

'All information and records obtained in the course of providing services under Division 5 (commencing with Section 5000), Division 6 (commencing with Section 6000), or Division 7 (commencing with Section 7000), to either voluntary or involuntary recipients of services shall be confidential. Information and records may be disclosed only: ( ) (a) In communications between qualified professional persons in the provision of services or appropriate referrals, or in the course of conservatorship proceedings. The consent of the patient, or his guardian or conservator must be obtained before information or records may be disclosed by a professional person employed by a facility to a professional person not employed by the facility who does not have the medical responsibility for the patient's care. ( ) (b) When the patient, with the approval of the physician in charge of the patient, designates persons to whom information or records may be released, except that nothing in this article shall be construed to compel a physician, psychologist, social worker, nurse, attorney, or other professional person to reveal information which has been given in him in confidence by members of a patient's family; ( ) (c) To the extent necessary for a recipient to make a claim, or for a claim to be made on behalf of a recipient for aid, insurance, or medical assistance to which he may be entitled; ( ) (d) If the recipient of services is a minor, ward, or conservatee, and his parent, guardian, or conservator designates, in writing, persons to whom records or information may be disclosed, except that nothing in this article shall be construed to compel a physician, psychologist, social worker, nurse, attorney, or other professional person to reveal information which has been given to him in confidence by members of a patient's family; ( ) (e) For research, provided that the Director of Health designates by regulation, rules for the conduct of research. Such rules shall include, but need not be limited to, the requirement that all researchers must sign an oath of confidentiality as follows:

............... sh

Date

As a condition of doing research concerning persons who have received services from .......... (fill in the facility, agency or person), I, .........., agree not to divulge any information obtained in the course of such research to unauthorized persons, and not to publish or otherwise make public any information regarding persons who have received services such that the person who received services is identifiable. I recognize that unauthorized release of confidential information may make me subject to a civil action under provisions of the Welfare and Institutions Code.

............... ac

Signed

( ) (f) To the courts, as necessary to the administration of justice. ( ) (g) To governmental law enforcement agencies as needed for the protection of federal and state elective constitutional officers and their families. ( ) (h) To the Senate Rules Committee or the Assembly Rules Committee for the purposes of legislative investigation authorized by such committee. ( ) (i) If the recipient of services who applies for life or disability insurance designates in writing the insurer to which records or information may be disclosed. ( ) (j) To the attorney for the patient in any and all proceedings upon presentation of a release of information signed by the patient, except that when the patient is unable to sign such release, the staff of the facility, upon satisfying itself of the identity of said attorney, and of the fact that the attorney does represent the interests of the patient, may release all information and records relating to the patient except that nothing in this article shall be construed to compel a physician, psychologist, social worker, nurse, attorney, or other professional person to reveal information which has been given to him in confidence by members of a patient's family. ( ) The amendment of subdivision (d) of this section enacted at the 1970 Regular Session of the Legislature does not constitute a change in, but is declaratory of, the preexisting law.'

Subdivisions (g), (h), and (i) were added by amendment in 1972. Subdivision (j) was added by amendment in 1974.

Section 5328, specifically enumerating exceptions to the confidentiality requirement, does not admit of an interpretation importing implied exceptions. (County of Riverside v. Superior Court, 42 Cal.App.3d 478, 481, 116 Cal.Rptr. 886.)

[3] One survey indicated that five of every seven people interviewed said they would be less likely to make full disclosure to a psychiatrist in the absence of assurance of confidentiality. (See, Comment, Functional Overlap Between the Lawyer and Other Professionals: Its Implications for the Doctrine of Privileged Communications (1962) 71 Yale L.J. 1226, 1255.)

[4] The burden placed by the majority on psychiatrists may also result in the improper deprivation of two other constitutionally protected rights. First, the patient's constitutional right of privacy (In re Lifschutz, supra, 2 Cal.3d 415, 85 Cal.Rptr. 829, 467 P.2d 557) is obviously encroached upon by requiring the psychotherapist to disclose confidential communications. Secondly, because confidentiality is essential to effective treatment, the majority's decision also threatens the constitutionally recognized right to receive treatment. (People v. Feagley (1975) 14 Cal.3d 338, 359, 121 Cal.Rptr. 509, 535 P.2d 373; Wyatt v. Stickney (M.D.Ala.1971) 325 F.Supp. 781, 784, affd. sub nom. Wyatt v. Aderholt (5th Cir. 1974) 503 F.2d 1305; Nason v. Superintendent of Bridgewater State Hosp. (1968) 353 Mass. 604, 233 N.E.2d 908.)

[5] A shocking illustration of psychotherapists' inability to predict dangerousness, cited by this court in People v. Burnick, supra, 14 Cal.3d 306, 326--327, fn. 17, 121 Cal.Rptr. 488, 535 P.2d 352, is cited and discussed in Ennis, Prisoners of Psychiatry: Mental Patients, Psychiatrists, and the Law (1972): 'In a well-known study, psychiatrists predicted that 989 persons were so dangerous that they could not be kept even in civil mental hospitals, but would have to be kept in maximum security hospitals run by the Department of Corrections. Then, because of a United States Supreme Court decision, those persons were transferred to civil hospitals. After a year, the Department of Mental Hygiene reported that one-fifth of them had been discharged to the community, and over half had agreed to remain as voluntary patients. During the year, only 7 of the 989 committed or threatened any act that was sufficiently dangerous to require retransfer to the maximum security hospital. Seven correct predictions out of almost a thousand is not a very impressive record. ( ) Other studies, and there are many, have reached the same conclusion: psychiatrists simply cannot predict dangerous behavior.' (Id. at p. 227.) Equally illustrative studies are collected in Rosenhan, On Being Sane in Insane Places (1973) 13 Santa Clara Law. 379, 384; Ennis & Litwack, Psychiatry and the Presumption of Expertise: Flipping Coins in the Courtroom, supra, 62 Cal.L.Rev. 693, 750--751.)

[6] The majority concedes that psychotherapeutic dialogue often results in the patient expressing threats of violence that are rarely executed. (Ante, p. 441, p. 27 of 131 Cal.Rptr., p. 347 of 551 P.2d). The practical problem, of course, lies in ascertaining which threats from which patients will be carried out. As to this problem, the majority is silent. They do, however, caution that a therapist certainly 'should not be encouraged routinely to reveal such threats; such disclosures could seriously disrupt the patient's relationships with his therapist and with the persons threatened.' (Id.)

Thus, in effect, the majority informs the therapists that they must accurately predict dangerousness--a task recognized as extremely difficult--or face crushing civil liability. The majority's reliance on the traditional standard of care for professionals that 'therapist need only exercise 'that reasonably degree of skill, knowledge, and care ordinarily possessed and exercised by members of (that professional specialty) under similar circumstances" (Ante, p. 438, p. 25 of 131 Cal.Rptr., p. 345 of 551 P.2d) is seriously misplaced. This standard of care assumes that, to a large extent, the subject matter of the specialty is ascertainable. One clearly ascertainable element in the psychiatric field is that the therapist cannot accurately predict dangerousness, which, in turn, means that the standard is inappropriate for lack of a relevant criterion by which to judge the therapist's decision. The inappropriateness of the standard the majority would have us use is made patent when consideration is given to studies, by several eminent authorities, indicating that '(t)he chances of a second psychiatrist agreeing with the diagnosis of a first psychiatrist 'are barely better than 50--50; or stated differently, there is about as much chance that a different expert would come to some different conclusion as there is that the other would agree." (Ennis & Litwack, Psychiatry and the Presumption of Expertise: Flipping Coins in the Courtroom, supra, 62 Cal.L.Rev. 693, 701, quoting, Ziskin, Coping With Psychiatric and Psychological Testimony, 126.) The majority's attempt to apply a normative scheme to a profession which must be concerned with problems that balk at standardization is clearly erroneous.

In any event, an ascertainable standard would not serve to limit psychiatrist disclosure of threats with the resulting impairment of treatment. However compassionate, the psychiatrist hearing the threat remains faced with potential crushing civil liability for a mistaken evaluation of his patient and will be forced to resolve even the slightest doubt in favor of disclosure or commitment.

[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.

[525 N.Y.S.2d 213] Kenneth Kirschenbaum, of counsel (Ira Levine with him on the brief; Kirschenbaum & Kirschenbaum, P.C., Garden City, attorneys), for defendant-appellant.

Michael C. Lesser, of counsel (Louis Engelmayer, New York City, attorney), for plaintiffs-respondents.

Before MURPHY, P.J., and SANDLER, CARRO, ASCH and KASSAL, JJ.

ASCH, Justice.

On June 7, 1981, the plaintiff, Lori Einhorn, was allegedly assaulted and raped in the building at premises located at 15 East 21st Street. She was accosted on the second floor landing and dragged by her assailant, concededly not a tenant, up the stairway, to the third floor, where the attack occurred inside of the apartment she was visiting. This action for personal injuries was commenced against the owner, David Seeley and 15 East 21st Street Co., and against appellant, Rem Discount Security Products, Inc. ("Rem"). Plaintiffs claim that Rem had improperly installed or repaired the lock on the front door of the building, through which the assailant may have entered the premises. They contend that the front door lock of the building was broken to such an extent that the door could be opened "with a firm push, even when locked", that this condition had been in existence for some time and brought to the attention of the landlord. At the time of this horrendous event, Lori was not a tenant. She and Kenneth Einhorn, the tenant, were engaged. They were not married until April 10, 1983, almost two years after the assault.

The Supreme Court denied defendant Rem's motion for summary judgment and its subsequent motion to renew. We reverse since we find no support for a different result under the established principles of contract or tort law. We do not believe that an extension of liability under the facts herein alleged, to comprehend a locksmith, for injury to a person not in privity with the locksmith, actually perpetrated by a stranger to both plaintiffs and defendants, allegedly arising out of a negligent repair or installation of a front door lock, is warranted.

Defendant Rem, in support of its motion for summary judgment, asserted, by its President, that it had no contract with plaintiffs with respect to the locksmith services it furnished the co-defendant landlord. Significantly, in their opposition, plaintiffs never specifically asserted the existence of a contractual duty, express or otherwise, on the part of defendant Rem toward them. Rather, in a conclusory fashion, they alleged that Rem's duty to plaintiff Lori Einhorn was "clearly established" and that "by undertaking to install and/or repair locks on the front door, defendants themselves created a duty to the tenants to properly install and/or repair security devices on the front door of the premises." It is clear, therefore, that an action based upon an express contract between plaintiffs and defendant locksmith, Rem, does not lie.

The action is, of course, not maintainable in contract on a third party beneficiary [525 N.Y.S.2d 214] theory since plaintiffs were, at most, incidental rather than intended beneficiaries of any agreement between the landlord and Rem (Moch Co. v. Rensselaer Water Co., 247 N.Y. 160, 159 N.E. 896).

The first obstacle which arises is the fact that there has been no direct transaction between the plaintiff and the defendant, which usually is expressed by saying that they are not in "privity" of contract. There is thus no logical basis upon which the one may be required to perform the contract for the other, unless the contract has been made expressly for the benefit of the plaintiff, or it has been assigned to him. (Prosser & Keeton on The Law of Torts [5th ed], West Publishing Co. [1984], sec. 93, p 667.)

Fortunately, Moch Co. v Rensselaer Water Co. (supra) furnishes a signpost which helps us. In that case, an individual member of the public brought an action against a water works company for damages suffered as a result of defendant's negligent failure to furnish an adequate supply of water so as to extinguish a fire. Justice (then Chief Judge) Cardozo wrote an analysis, in 1928, which is still valid today and which furnishes the rationale for this opinion:

The plaintiff would have us hold that the defendant, when once it entered upon the performance of its contract with the city, was brought into such a relation with every one who might potentially be benefited through the supply of water at the hydrants as to give to negligent performance, without reasonable notice of a refusal to continue, the quality of a tort. ... We are satisfied that liability would be unduly and indeed indefinitely extended by this enlargement of the zone of duty. The dealer in coal who is to supply fuel for a shop must then answer to the customers if fuel is lacking. The manufacturer of goods, who enters upon the performance of his contract, must answer, in that view, not only to the buyer, but to those who to his knowledge are looking to the buyer for their own sources of supply. Every one making a promise having the quality of a contract will be under a duty to the promisee by virtue of the promise, but under another duty, apart from contract, to an indefinite number of potential beneficiaries when performance has begun. The assumption of one relation will mean the involuntary assumption of a series of new relations, inescapably hooked together. Again we may say in the words of the Supreme Court of the United States, "The law does not spread its protection so far" [citations omitted].

(Moch Co. v Rensselaer Water Co., supra, at 168, 159 N.E. 896.)

Accordingly, plaintiffs, in opposing Rem's summary judgment motion, have completely failed to come forward with any viable theory for recovery on the basis of contractual obligation.

Plaintiffs are, therefore, relegated to the cause of action in tort pleaded in their first cause of action. "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])." (Strauss v. Belle Realty Co., 65 N.Y.2d 399, at 402, 492 N.Y.S.2d 555, 482 N.E.2d 34.) The essential question here is whether the defendant locksmith owed a duty, apart from contract, to plaintiffs. In deciding whether or not there is such liability, as Justice Kaye pointed out in the Strauss case:

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 NY2d 609, 619 [301 N.Y.S.2d 554, 249 N.E.2d 419]; see also, Howard v Lecher, 42 NY2d 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 NY2d 781 [390 N.Y.S.2d 393, 358 N.E.2d 1019], supra; Ultramares Corp. v. Touche, 255 NY 170). "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 NY2d 1053, 1055 [462 N.Y.S.2d 626, 449 N.E.2d 406]; [525 N.Y.S.2d 215] see also, Becker v Schwartz, 46 NY2d 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. (At pp 402-3 [492 N.Y.S.2d 555, 482 N.E.2d 34].)

There is no basis in tort for liability in this case. This is not a case in which the defendant locksmith itself injured the plaintiff either by a direct volitional act or even by some negligent act, i.e., leaving a bag of tools in a doorway. Here, the act complained of by plaintiff was perpetrated by an intervening person. There will ordinarily be no duty thrust on a defendant to prevent a third party from causing harm to another. The exception may occur in the case where a special relationship exists between the defendant and the third person so as to give rise to a duty to control, or alternatively, when a special relationship exists between the defendant and the victim which gives the latter the right to protection (Restatement [Second] of Torts sec. 315). Thus, such special relationships have been held to include employers-employees, owners and occupiers of premises, common carriers and their patrons, and hosts who serve alcoholic beverages to their guests, among others (see, Private Person's Duty and Liability for Failure to Protect Another Against Criminal Attack by Third Person, 10 A.L.R.3d 619; Dooley, Modern Tort Law, sec. 3.12, vol 1, p 34). Although plaintiffs plead such duty on the part of defendant Rem, it is clear that they do not fit into any category which has been held to constitute such a special relationship.

It may be that the landlord is liable to the victim, Lori Einhorn. While there have been a few cases in which the landlord has been held liable to a tenant who has been a victim of crime as a result of a defective lock, none of those cases extends the zone of duty to include a third party who was hired by the landlord to install or repair the lock and who does so improperly. The expansion of the net of obligation to enmesh a landlord in such situation has been a slow process based on discriminating selection and wanton conduct on the part of the landlord. As pointed out by Presiding Justice Murphy, writing for this court in Gill v. New York City Housing Authority, 130 A.D.2d 256, at 262-263, 519 N.Y.S.2d 364:

A landlord is, of course, under a duty to take reasonable security measures to protect his tenants from the intentional criminal acts of others if he knows or should know that common areas upon his premises have been the scene of recurrent criminal activity (Nallan v Helmsley-Spear, Inc., 50 NY2d 507 [429 N.Y.S.2d 606, 407 N.E.2d 451] supra; Miller v State of New York, 62 NY2d 506 [478 N.Y.S.2d 829, 467 N.E.2d 493]). Thus, a landlord's failure to mainta locks (see, Miller v State of New York, supra) or to post security personnel at entrances (see, Nallan v Helmsley-Spear, Inc., supra), or to provide adequate lighting in places where criminals are known to lurk (see, Loeser v Hale Gardens, 73 AD2d 187) may constitute negligence for which the landlord can be held accountable. And, indeed, this is as it should be because a landlord in his proprietary capacity is responsible for and presumed to be capable of maintaining his premises in reasonably secure and physically safe condition. (See, Nallan v Helmsley-Spear, Inc., supra, [50 N.Y.2d] at 519 [429 N.Y.S.2d 606, 407 N.E.2d 451]; see also, Prosser and Keeton, Torts sec. 57, at 386 [5th ed 1984].)

(See also, Waters v. New York City Housing Authority, 69 N.Y.2d 225, 513 N.Y.S.2d 356, 505 N.E.2d 922; Sherman v. Concourse Realty Corporation, 47 A.D.2d 134, 365 N.Y.S.2d 239.) It is noteworthy that in all of these cases the defendant landlord had notice of the dangerously defective locks or other security devices, as well as of the criminal activity. Thus, liability of the landlord who has a direct relationship with the tenant, even as compared with defendant locksmith, has itself been seriously limited, as a matter of public policy.

[525 N.Y.S.2d 216] Applying this analysis to the facts as presented to us, it seems clear that the locksmith, defendant Rem, did not undertake a duty to plaintiff Lori Einhorn when it entered into its relationship with the defendant landlord. Here we are concerned with a possible liability for an injury to a mere guest of a tenant caused by an unlawful act of a third party. Under these circumstances, to hold a locksmith responsible for the alleged consequences of an allegedly defective lock would be to enlarge the obligations of such artisans far beyond the existing law and beyond sound public policy.

The dissent argues that a trial is required to resolve the issues of liability with which we are presented. But this does not seem to be at all necessary under the circumstances herein. A locksmith is not answerable to the guest of a tenant, injured on the premises as the result of an attack perpetrated by a stranger who may have entered the building as a result of a defective lock, installed or maintained by an arrangement of the landlord with the locksmith. Accepting all of the facts claimed by the plaintiffs as being true, we follow the lead of the Court of Appeals in an analogous case, Strauss v. Belle Realty Co., 65 N.Y.2d 399, 492 N.Y.S.2d 555, 482 N.E.2d 34, and "we reject the suggestion of the dissent that there be a fact-finding hearing" (at 405, 492 N.Y.S.2d 555, 482 N.E.2d 34).

The day may well come when all victims of horrendous experiences, such as plaintiff Lori Einhorn, will be compensat either by government (see Holmes,The Common Law) or universal insurance (Friedman, Law in a Changing Society, ch 5 [Colum U Press, 1972]) or some other institutional device. But that day has not yet arrived. While traditional theories of liability continue to expand, unfortunately for plaintiffs neither the law of contract nor tort have been broadened sufficiently to encompass their claims herein.

Accordingly, the order of the Supreme Court, New York County (Martin Stecher, J.), entered September 3, 1986, which denied defendant Rem Discount Security Products, Inc.'s motion for summary judgment dismissing the complaint as to it, should be reversed, on the law, and summary judgment dismissing the complaint as against defendant Rem granted, without costs or disbursements. The appeal from the order of the Supreme Court, New York County (Martin Stecher, J.), entered April 8, 1987, which had denied defendant Rem's motion for renewal, is dismissed as academic.

Order, Supreme Court, New York County (Martin Stecher, J.), entered on September 3, 1986, reversed, on the law, and summary judgment dismissing the complaint as against defendant Rem granted, without costs and without disbursements, and the appeal from the order of said court, entered on April 8, 1987 is dismissed as academic.

All concur except SANDLER and KASSAL, JJ. who dissent in part in an Opinion by KASSAL, J.

KASSAL, Justice (dissenting in part).

I would grant summary judgment to defendant Rem Discount Security Products Inc. ("Rem") solely with respect to dismissing the second and third causes of action.

The second cause of action, for punitive damages, is legally deficient. It is well-settled that a claim for punitive damages does not constitute a separate cause of action. (Green v. Fischbein, Olivieri, Rozenholc & Badillo, 119 A.D.2d 345, 351, 507 N.Y.S.2d 148; Carroll v. New York Property Insurance Underwriting Assoc., 88 A.D.2d 527, 528, 450 N.Y.S.2d 21, mot. for lv. to app. dismissed, 57 N.Y.2d 774; Bunker v. Bunker, 73 A.D.2d 530, 422 N.Y.S.2d 403). Rather, such a claim constitutes only an element of the total damages sought on the underlying cause of action. (APS Food Systems v. Ward Foods, 70 A.D.2d 483, 421 N.Y.S.2d 223; Goldberg v. New York Times, 66 A.D.2d 718, 411 N.Y.S.2d 295; M.S.R. Assoc. v. Consolidated Mut. Ins. Co., 58 A.D.2d 858, 396 N.Y.S.2d 684).

Similarly deficient is the third cause of action by Kenneth Einhorn to recover for loss of "society, companionship and consortium [525 N.Y.S.2d 217] of his wife." The record clearly indicates that on the date of the injuries plaintiffs were not yet married, although they were engaged and Lori was in the process of moving into Kenneth's apartment in the subject premises. They were not, however, actually married until April 10, 1983, almost two years after the assault.

Although this issue has not been addressed by the Court of Appeals, the Second and Fourth Departments have held that an action for loss of consortium may not be maintained unless the party seeking such damages was married to the injured person at the time the actionable conduct occurred. (See, Briggs v. Butterfield Memorial Hospital, 104 A.D.2d 626, 479 N.Y.S.2d 758; Rademacher v. Torbensen, 257 App.Div. 91, 13 N.Y.S.2d 124) In Miller v. Davis, 107 Misc.2d 343, 433 N.Y.S.2d 974, the cause of action was dismissed, notwithstanding that the parties were to be married on the date of the accident and were actually married the next day. As was observed by the Second Department in Briggs, supra:

[I]n virtually every jurisdiction of the United States, a lawful marriage at the time the claim arises is a prerequisite to recovery for loss of services (see, e.g., Weaver v Searle & Co., 558 F Supp 720; Laws v Griep, 332 N.W.2d 339 [Iowa]; Tremblay v Carter, 390 So 2d 816 [Fla App]; Sostock v Reiss, 92 Ill App 3d 200 [47 Ill.Dec. 781, 415 N.E.2d 1094]; Angelet v Shivar, 602 SW2d 185 [Ky]).

Accordingly, I would dismiss the second and third causes of action as legally insufficient.

I cannot, however, agree with the majority that the entire complaint against Rem must be dismissed as a matter of law. The majority premises its determination to grant total summary judgment on the grounds that plaintiffs were neither in privity of contract with Rem nor within the class of persons to whom that security company owed a duty of care.

First, I note that it has long been recognized that "the absence of privity does not foreclose recognition of a duty ...", Strauss v. Belle Realty Co., 65 N.Y.2d 399, 402, 492 N.Y.S.2d 555, 482 N.E.2d 34, for "[t]here 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 Company, 217 N.Y. 382, 393, 111 N.E. 1050. Thus, I must disagree with the reasoning by which plaintiffs would be denied their day in court against Rem simply because the latter's services were performed pursuant to a contract with the co-defendant landlord.

Yet more troubling, is the majority's position with respect to the scope of Rem's duty of care. Here, it is urged that plaintiffs may not assert a claim in negligence against Rem because they did not have a special relationship with the security company which would render it obligated to prevent a third party from causing harm to plaintiff Lori Einhorn. This is not the issue. Rather, the issue is whether Rem could reasonably have perceived a risk to the tenants of the building if it performed its locksmith services negligently. As the Court of Appeals has recently reiterated:

[T]he concept of a duty of care, which is essential to the law of negligence, has meaning only when it is considered in relation to both the harm that the duty exists to prevent and the class of individuals to whom it is owed. 'The risk reasonably to be perceived defines the duty to be obeyed, and risk imports relation; it is risk to another or to others within the range of apprehension' that delimits the duty's scope (Palsgraf v LIRR Company, 248 NY 339, 344).

Waters v. NYC Housing Authority, 69 N.Y.2d 225, 228-229, 513 N.Y.S.2d 356, 505 N.E.2d 922.

Here, Rem undertook to install, repair and/or maintain the lock on the front door of the premises where plaintiff Kenneth Einhorn, then Lori Einhorn's fiancee and now her husband, resided. As its very name, Rem Discount Security Products, Inc., denotes, Rem is in the business of providing goods and services that insure [525 N.Y.S.2d 218] security. It is reasonable to assume that a business engaged in such services in this city is well aware of the risks created when its work is not properly performed. In working on the lock that secures the front door of the subject premises, Rem was, therefore, aware that the safety of persons residing therein, as well as that of their guests, was at stake and, indeed, that protection of such persons and their property was the very purpose of its work. Thus, we have here the "risk reasonably to be perceived ... to another ... within the range of apprehension", and its concommitant duty. Waters v. NYC Housing Authority, supra, [quoting Palsgraf v. LIRR Company, 248 N.Y. 339, 344, 162 N.E. 99].

I further point out that acknowledging the existence of a category of persons to whom Rem owed a duty of care will not, as the majority fears, expose locksmiths to unlimited liability and contravene notions of "sound public policy". Unlike in Moch Company v. Rensselaer Water Company, 247 N.Y. 160, 159 N.E. 896, relied upon by the majority, the within plaintiffs are part of a limited and readily definable class, namely, the tenants, and their invitees, of the premises defendant has serviced for the purpose of providing security.

Once it has been determined that plaintiffs are within a category of persons to whom Rem owed a duty of care, we must turn to whether there exist issues of fact sufficient to defeat a motion for summary judgment. This "drastic remedy" is rarely granted in negligence cases. Andre v. Pomeroy, 35 N.Y.2d 361, 364, 362 N.Y.S.2d 131, 320 N.E.2d 853. An examination of the record reveals no cause for exception here. The critical issues for the trier of facts are foreseeability and proximate cause, and it is in that regard that several factual issues should await resolution at trial. Among them are the nature and extent of the relationship between Rem and the codefendant owners of the building, the adequacy and timing of the repairs and/or installation made by Rem with respect to the front door lock, and the manner by which the assailant entered the building, including whether entry could have been gained by means other than the front door.

Accordingly, I would modify the order appealed from solely to the extent of dismissing the second and third causes of action, and otherwise affirm.

[56 Ill.2d 96] [306 N.E.2d 40] Hinshaw, Culbertson, Moelmann, Hoban & Fuller, Chicago (Joseph W. Griffin and D. Kendall Griffith, Chicago, of counsel), for appellants.

Marshall I. Teichner, Ltd., Chicago (Edwin A. Strugala, Chicago, of counsel), for appellee.

RYAN, Justice:

Plaintiff's complaint was dismissed on motion of the defendants by the circuit court of Cook County for failure to state a cause of action. The appellate court reversed and remanded the cause to the circuit court. (8 Ill.App.3d 140, 289 N.E.2d 218.) We granted leave to appeal.

This is a wrongful death action against Racine Currency Exchange and Blanche Murphy to recover damages for the death of plaintiff's decedent during an attempted armed robbery. The facts surrounding that event, as alleged in the complaint and admitted by defendants' motion, are: The plaintiff's husband, John Boyd, was present in the Racine Currency Exchange on April 27, 1970, for the purpose of transacting business. While he was there, an armed robber entered and placed a pistol to his head and told Blanche Murphy, the teller, to give him the money or open the door or he would kill Boyd. Blanche Murphy was at that time located behind a bulletproof glass window and partition. She did not comply with the demand but instead fell to the floor. The robber then shot Boyd in the head and killed him.

Plaintiff alleges several acts of negligence by the Racine Currency Exchange and Blanche Murphy. Count I alleges that the defendants owed Boyd, a business invitee, the duty to exercise reasonable care for his safety and that they breached this duty when they refused to accede to the robber's demands. Count I also alleges that defendants acted negligently in adopting a policy, knowledge of which was deliberately withheld from their customers, according [56 Ill.2d 97] to which their money was to be protected at all costs, including the safety and the lives of the customers.

In count II the plaintiff alleges that the Currency Exchange was negligent in failing to instruct its employees regarding the course of conduct which would be necessary under the circumstances of this case to prevent exposing customers to unreasonable risks of harm. Count II further alleges that the Currency Exchange was negligent in employing a person who was incompetent to fulfill the responsibilities of her position. Negligence is also alleged in the failure to furnish guidelines of how to act in case of armed robbery, and alternatively that it was negligent in failing to disclose to its customers its policy of preserving its monies at all costs.

It is fundamental that there can be no recovery in tort for negligence unless the defendant has breached a duty owed to the plaintiff. (Hamlin's Wizard Oil Co. v. United States Express Co., 265 Ill. 156, 106 N.E. 623.) The plaintiff contends that a business proprietor has a duty to his invitees to honor criminal demands when failure to do so would subject the invitees to an unreasonable risk. It is claimed that this duty arises from the relationship between a landowner and a business invitee.

It is the general rule in Illinois and other jurisdictions that a person has no duty to anticipate the criminal acts of third parties. (Prosser, Handbook of the Law [306 N.E.2d 41] of Torts (4th ed. 1971), sec. 33.) An exception to this rule exists, however, when criminal acts should reasonably have been foreseen. (Neering v. Illinois Central R.R. Co., 383 Ill. 366, 50 N.E.2d 497.) Neering, and many of the other cases cited by the parties, involved the question of whether facts existed which should have alerted the defendant to a risk of harm to his invitees by criminals. (See O'Brien v. Colonial Village, Inc., 119 Ill.App.2d 105, 255 N.E.2d 205; Stelloh v. Cottage 83, 52 Ill.App.2d 168, 201 N.E.2d 672; Altepeter v. Virgil State Bank, 345 Ill.App. 585, 104 N.E.2d 334; Nigido v. First National Bank, 264 Md. 702, 288 A.2d 127.) These cases are of little help here since our [56 Ill.2d 98] case presents a question of whether the defendant who is faced with an imminent criminal demand incurs liability by resisting, not whether he is negligent in failing to take precautions against a possible future crime.

Also of little assistance in Sinn v. Farmers Deposit Savings Bank, 300 Pa. 85, 150 A. 163. In that case recovery for the plaintiff, who was injured when a bank robber detonated dynamite within the bank, was upheld. The plaintiff alleged that had the bank warned him that a bank robbery was in progress, as they had the opportunity to do, he could have escaped unharmed. The plaintiff's intestate in our case, however, was obviously on notice that a robbery was in progress, and plaintiff does not predicate her claim on the absence of warning.

The Restatement of Torts does not consider the specific issue before us. The Restatement does set forth the principle that a person defending himself or his property may be liable for harm to third persons if his acts create an unreasonable risk of harm to such persons. (Restatement (Second) of Torts, secs. 75 and 83.) However, these sections refer to situations in which the harm is caused directly by a person resisting, not by the criminal such as where a shot fired at a criminal hits a third person.

We are aware of only two cases which have discussed issues similar to the one with which we are faced here--whether a person injured during the resistance to a crime is entitled to recover from the person who offered the resistance. In Genovay v. Fox, 50 N.J.Super. 538, 143 A.2d 229, rev'd on other grounds, 29 N.J. 436, 149 A.2d 212, a plaintiff who was shot and wounded during the robbery of a bowling alley bar claimed that the proprietor was liable because instead of complying with the criminal demand he stalled the robber and induced resistance by those patrons present. The plaintiff was shot when several patrons attempted to disarm the bandit. The court there balanced the interest of the proprietor in resisting the robbery against the interest of the patrons in not being [56 Ill.2d 99] exposed to bodily harm and held that the complaint stated a cause of action. The court stated: 'The value of human life and of the interest of the individual in freedom from serious bodily injury weigh sufficiently heavily in the judicial scales to preclude a determination as a matter of law that they may be disregarded simply because the defendant's activity serves to frustrate the successful accomplishment of a felonious act and to save his property from loss.' (50 N.J.Super. at 558, 143 A.2d at 239-240.) The court held that under the circumstances it was for the jury to determine whether defendant's conduct was reasonable.

In Noll v. Marian, 347 Pa. 213, 32 A.2d 18, the court held that no cause of action existed. The plaintiff was present in a bank when an armed robber entered and announced 'It's a holdup. Nobody should move.' The bank teller, instead of obeying this order, dropped down out of sight. The gunman then opened fire and wounded the plaintiff. The court held that even though the plaintiff might not have been injured if the teller had stood still, the teller did not act negligently in attempting to save himself and his employer's property.

In Lance v. Senior, 36 Ill.2d 516, 224 N.E.2d 231, this court noted that foreseeability [306 N.E.2d 42] alone does not result in the imposition of a duty. 'The likelihood of injury, the magnitude of the burden of guarding against it and the consequences of placing the burden upon the defendant, must also be taken into account.' 36 Ill.2d at 518, 224 N.E.2d at 233.

In the present case an analysis of those factors leads to the conclusion that no duty to accede to criminal demands should be imposed. The presence of guards and protective devices do not prevent armed robberies. The presence of armed guards would not have prevented the criminal in this case from either seizing the deceased and using him as a hostage or putting the gun to his head. Apparently nothing would have prevented the injury to the decedent except a complete acquiescence in the robber's demand, [56 Ill.2d 100] and whether acquiescence would have spared the decedent is, at best, speculative. We must also note that the demand of the criminal in this case was to give him the money or open the door. A compliance with this alternate demand would have, in turn, exposed the defendant Murphy to danger of bodily harm.

If a duty is imposed on the Currency Exchange to comply with such a demand the same would only inure to the benefit of the criminal without affording the desired degree of assurance that compliance with the demand will reduce the risk to the invitee. In fact, the consequence of such a holding may well be to encourage the use of hostages for such purposes, thereby generally increasing the risk to invitees upon business premises. If a duty to comply exists, the occupier of the premises would have little choice in determining whether to comply with the criminal demand and surrender the money or to refuse the demand and be held liable in a civil action for damages brought by or on behalf of the hostage. The existence of this dilemma and knowledge of it by those who are disposed to commit such crimes will only grant to them additional leverage to enforce their criminal demands. The only persons who will clearly benefit from the imposition of such a duty are the criminals. In this particular case the result may appear to be harsh and unjust, but, for the protection of future business invitees, we cannot afford to extend to the criminal another weapon in his arsenal.

For these reasons we hold that the defendants did not owe to the invitee Boyd a duty to comply with the demand of the criminal.

Accordingly, the judgment of the appellate court will be reversed, and the judgment of the circuit court of Cook County will be affirmed.

Appellate court reversed; circuit court affirmed.

[56 Ill.2d 101] GOLDENHERSH, Justice (dissenting):

I dissent. The majority opinion fails to take into account the principles of law clearly enunciated in Restatement (Second) of Torts, secs. 302B and 449, and on the basis of pure conjecture concludes that nothing that defendant's employee could have done would have saved the deceased from death or injury. The majority's polemic on the subject of the hazards which would be created by an application of established legal principles to this case finds little support in logic and none whatsoever in the legal authorities.

This case comes to us only on the pleadings and I agree with the appellate court that 'Whether what defendants did or did not do proximately caused the injury that befell plaintiff's decedent, whether Blanche Murphy had the time so she could, under the circumstances alleged, exercise the kind of judgment expected of a person of ordinary prudence, were questions of fact which, from all the evidence, must be decided by a trier of the facts, judge or jury.' I would affirm the judgment of the appellate court.

Rehearing Denied May 30, 1995.

[651 N.E.2d 155] [165 Ill.2d 483] [209 Ill.Dec. 227] Herbolsheimer, Lannon, Henson, Duncan & Reagan (Michael T. Reagan, and Michael C. Jansz, of counsel), Ottawa, for appellant in No. 76617.

Stephen B. Morris, Hamilton, for appellee, in No. 76617.

Steven L. Larson, John W. Barbian and Linda E. Spring, of Wildman, Harrold, Allen & Dixon, Waukegan, for appellants, in No. 77438.

Baskin, Server, Berke & Weinstein, & Spiro, Chicago (John R. Malkinson, of counsel), for appellee, in No. 77438.

Chief Justice BILANDIC delivered the opinion of the court:

In these two, consolidated appeals, the plaintiffs ask this court to recognize a cause of action against social hosts for serving alcoholic beverages to minors who are subsequently injured. Both appeals arise from a circuit court dismissal of the plaintiff's complaint. The circuit courts held that, according to long-established precedent, social host liability does not exist in Illinois. For the reasons stated below, we now confirm this precedent and decline to give birth to any form of social host liability.

FACTS

In cause number 76617, the plaintiff, Robert Charles, as administrator of the estate of Lynn Sue Charles, brought an action against the defendant, Alan Seigfried, in the circuit court of Hancock County. Lynn Sue Charles was killed in an automobile accident in the [165 Ill.2d 484] early morning hours of February 16, 1991. Charles sought recovery for her death.

Charles' second-amended complaint alleged that Seigfried hosted a social gathering at his rural home on the evening of February 15, 1991. Lynn Sue, 16 years of age, attended the party. The complaint charged that Seigfried served alcoholic beverages to Lynn Sue and to other underage persons at the [651 N.E.2d 156] [209 Ill.Dec. 228] party. Lynn Sue became intoxicated. She then departed Seigfried's home by driving her own automobile. Lynn Sue had a blood-alcohol content of 0.299 at the time of her death.

Charles' second-amended complaint was premised on theories of social host liability. Count I claimed that Seigfried breached his common law duty of reasonable care. Count II alleged that a civil action arose from Seigfried's violation of section 6-16(c) of the Liquor Control Act of 1934 (Ill.Rev.Stat.1991, ch. 43, par. 131(c) (now 235 ILCS 5/6-16(c) (West 1992))). The circuit court dismissed the complaint under section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 1992)) for failure to state a cause of action. The appellate court reversed the dismissal and created a cause of action against social hosts who knowingly serve alcoholic beverages to minors. (251 Ill.App.3d 1059, 191 Ill.Dec. 431, 623 N.E.2d 1021.) In doing so, the appellate court acknowledged that it was departing from precedent. (251 Ill.App.3d at 1063, 191 Ill.Dec. 431, 623 N.E.2d 1021.) We allowed Seigfried's petition for leave to appeal (145 Ill.2d R. 315(a)).

In cause number 77438, the plaintiff, Paula L. Bzdek, a minor, by her father and next friend, Robert J. Bzdek, filed suit against the defendants, Susan M. Townsley and Nicki Townsley, in the circuit court of Lake County. Bzdek was injured in an accident while she was a passenger in a motor vehicle driven by David Duff, 18 years of age. Bzdek sought recovery for permanent injuries that she sustained.

[165 Ill.2d 485] Bzdek's second-amended complaint alleged that, on or about September 15, 1990, the Townsleys hosted a social gathering at their home in Wildwood, Illinois. Bzdek, age 15, attended the party, as did Duff. The complaint charged that the Townsleys furnished alcoholic beverages to Bzdek, Duff, and to several other underage persons. Bzdek and Duff became intoxicated. Bzdek left the Townsley home in the vehicle driven by Duff while he was still drunk. According to the complaint, Bzdek allowed herself to be transported by Duff due to her own inebriation. Duff lost control of the vehicle and crashed into oncoming traffic.

Both counts of Bzdek's second-amended complaint were based on theories of social host liability. Count I charged that the Townsleys negligently served intoxicants to Duff, a driver under the legal drinking age of 21. Count II alleged that they negligently served alcoholic beverages to Bzdek, a minor whose own drunkenness caused her to allow herself to be a passenger in Duff's vehicle. The circuit court dismissed the complaint under section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 1992)) for failure to state a cause of action. The appellate court reversed, finding that social hosts can be held liable under the facts alleged in Bzdek's complaint. (262 Ill.App.3d 238, 199 Ill.Dec. 550, 634 N.E.2d 389.) The appellate court extended social host liability beyond the negligent service of alcoholic beverages to minors. (262 Ill.App.3d at 244-46, 199 Ill.Dec. 550, 634 N.E.2d 389.) It reasoned that, where social hosts knowingly serve intoxicants to minors and to persons under the legal drinking age of 21, they can be held liable for injuries caused by the persons under age 21. (262 Ill.App.3d at 244-46, 199 Ill.Dec. 550, 634 N.E.2d 389.) We allowed the Townsleys' petition for leave to appeal (145 Ill.2d R. 315(a)).

ANALYSIS

The standard of review on appeal from a motion to dismiss a complaint under section 2-615 is whether the [165 Ill.2d 486] complaint alleges sufficient facts which, if proved, would entitle the plaintiff to relief. Urbaitis v. Commonwealth Edison (1991), 143 Ill.2d 458, 475, 159 Ill.Dec. 50, 575 N.E.2d 548.

For over one century, this court has spoken with a single voice to the effect that no social host liability exists in Illinois. The discussion below demonstrates that it has been, and continues to be, well-established law that Illinois has no common law cause of action for injuries arising out of the sale or gift of alcoholic beverages; that the legislature has preempted the field of alcohol-related liability; and that any change in the law governing alcohol-related liability should be made by the General Assembly, or not at all.

[651 N.E.2d 157] [209 Ill.Dec. 229] I

THE HISTORY OF ALCOHOL-RELATED LIABILITY

A. The Common Law Rule and the Dramshop Act

The historic common law rule, adhered to in this State, is that there is no cause of action for injuries arising out of the sale or gift of alcoholic beverages. The rationale underlying the rule is that the drinking of the intoxicant, not the furnishing of it, is the proximate cause of the intoxication and the resulting injury. (See Cunningham v. Brown (1961), 22 Ill.2d 23, 29-30, 174 N.E.2d 153.) As a matter of public policy, the furnishing of alcoholic beverages is considered as too remote to serve as the proximate cause of the injury.

As set forth later in this opinion, our courts have consistently adhered to the rule that there is no common law cause of action against any provider of alcoholic beverages for injuries arising out of the sale or gift of such beverages. The Illinois legislature, however, created a limited statutory cause of action when it enacted the original Dramshop Act of 1872 in response to a great wave of temperance reform that swept the nation. (Cunningham, [165 Ill.2d 487] 22 Ill.2d at 27, 174 N.E.2d 153, quoting 4 Bogart & Thompson, A Centennial History of Illinois 42-44 (1920).) The original act imposed liability upon dramshops for selling or giving intoxicating liquors to persons who subsequently injure third parties. (Laws of 1871-72, at 552-56.) The present act, titled the Liquor Control Act of 1934 (Ill.Rev.Stat.1991, ch. 43, par. 93.9 et seq. (now 235 ILCS 5/1-1 et seq. (West 1992))) grants a similar cause of action to injured third parties (Ill.Rev.Stat.1991, ch. 43, par. 135 (now 235 ILCS 5/6-21 (West 1992))). (Section 6-21 is commonly known as the Dramshop Act and will hereinafter be referred to as such.) The Dramshop Act has never imposed liability predicated on negligence or fault; rather, it imposes a form of "no-fault" liability. (Nelson v. Araiza (1978), 69 Ill.2d 534, 538-39, 14 Ill.Dec. 441, 372 N.E.2d 637.) This court has interpreted the Dramshop Act as not imposing liability upon social hosts.

Cruse v. Aden (1889), 127 Ill. 231, 20 N.E. 73, is the seminal decision regarding both the common law rule and the absence of social host liability under the Dramshop Act. There, a wife filed suit against a friend of her husband. The friend had given her husband two drinks of intoxicating liquor while he was a guest at the friend's home. The husband, upon returning home on horseback, was thrown from the horse and died.

The wife argued that a common law right of action existed before the Dramshop Act of 1872 was enacted, and that the Dramshop Act simply saved and even enlarged the remedies already available. The Cruse court expressly rejected these notions, stating:

"It was not a tort, at common law, to either sell or give intoxicating liquor to 'a strong and able-bodied man,' and it can be said safely, that it is not anywhere laid down in the books that such act was ever held, at common law, to be culpable negligence, that would impose legal liability for damages upon the vendor or donor of such liquor. The present suit can in no sense be regarded as an action of tort at common law." Cruse, 127 Ill. at 234, 20 N.E. 73.

[165 Ill.2d 488] The Cruse court therefore concluded that any cause of action the wife had was purely statutory, wholly dependent upon the proper construction of the Dramshop Act. (Cruse, 127 Ill. at 234, 20 N.E. 73.) The court held that the Dramshop Act only created a cause of action against those engaged in the liquor trade. (Cruse, 127 Ill. at 239, 20 N.E. 73.) No cause of action was "intended to be given against a person who, in his own house, or elsewhere, gives a glass of intoxicating liquor to a friend as a mere act of courtesy and politeness." (Cruse, 127 Ill. at 239, 20 N.E. 73.) Cruse therefore laid down the rule that no social host liability exists under the common law or the Dramshop Act.

B. Legislative Preemption

Many years later, in Howlett v. Doglio (1949), 402 Ill. 311, 83 N.E.2d 708, this court reaffirmed its holdings in Cruse. The Howlett court further explained that the liability imposed under the Dramshop Act "is of statutory origin, and is expressly and exclusively [651 N.E.2d 158] [209 Ill.Dec. 230] defined" therein. Howlett, 402 Ill. at 318, 83 N.E.2d 708.

Cunningham v. Brown (1961), 22 Ill.2d 23, 174 N.E.2d 153. then firmly established the rule of law that, in Illinois, the General Assembly has preempted the entire field of alcohol-related liability through its passage and continual amendment of the Dramshop Act. There, the plaintiffs filed suit against tavern operators who had served intoxicants to their husband and father, who thereafter became despondent and took his own life. The plaintiffs argued that, in addition to a claim under the Dramshop Act, the following remedies were available to them: (1) a civil action for a violation of a section of the Liquor Control Act that prohibited the sale, gift or delivery of alcoholic liquor " 'to any intoxicated person or to any person known * * * to be an habitual drunkard, spendthrift, insane, mentally ill, mentally deficient or in need of mental treatment' " (Cunningham, 22 Ill.2d at 24, 174 N.E.2d 153, quoting Ill.Rev.Stat.1957, ch. 43, [165 Ill.2d 489] par. 131); and (2) a common law action against tavern operators who knowingly supply intoxicating liquor to a consumer who has no volition with regard to consuming the intoxicant. The plaintiffs' contention was that this court should recognize a new cause of action where a tavern operator sells liquor to an already intoxicated or insane person. In these instances, the plaintiffs maintained, the incapacity of the consumer to choose is known to the vendor and, therefore, the sale of the liquor in reality becomes the proximate cause of the intoxication. The Cunningham court rejected all the plaintiffs' arguments and refused to create any cause of action beyond those explicitly provided for in the Dramshop Act. (Cunningham, 22 Ill.2d at 30-31, 174 N.E.2d 153.) It held that the Dramshop Act provides the exclusive remedy against tavern owners and operators for alcohol-induced injuries. Cunningham, 22 Ill.2d at 30-31, 174 N.E.2d 153.

Since Cunningham, this court has frequently reiterated the rule that a dramshop cause of action is sui generis and exclusive. (Hopkins v. Powers (1986), 113 Ill.2d 206, 211, 100 Ill.Dec. 579, 497 N.E.2d 757; Wimmer v. Koenigseder (1985), 108 Ill.2d 435, 440-44, 92 Ill.Dec. 233, 484 N.E.2d 1088; Demchuk v. Duplancich (1982), 92 Ill.2d 1, 5, 64 Ill.Dec. 560, 440 N.E.2d 112; Graham v. General U.S. Grant Post No. 2665 (1969), 43 Ill.2d 1, 7, 248 N.E.2d 657.) Accordingly, this court has consistently refused to recognize any cause of action for alcohol-related liability beyond those explicitly provided for in the Dramshop Act. (Wimmer, 108 Ill.2d at 440-44, 92 Ill.Dec. 233, 484 N.E.2d 1088; Graham, 43 Ill.2d at 8, 248 N.E.2d 657; Knierim v. Izzo (1961), 22 Ill.2d 73, 76-77, 79, 174 N.E.2d 157; Cunningham, 22 Ill.2d 23, 174 N.E.2d 153; Cruse, 127 Ill. 231, 20 N.E. 73.) In doing so, this court has rejected all theories of liability advanced by plaintiffs, including those based upon the Dramshop Act itself, upon common law negligence, or upon certain prohibited sales and activities within the Liquor Control Act of 1934. Wimmer, 108 Ill.2d 435, 92 Ill.Dec. 233, 484 N.E.2d 1088 (rejecting theories based upon the common law and the Dramshop Act); Graham, 43 Ill.2d 1, 248 N.E.2d 657 (rejecting [165 Ill.2d 490] theories based upon the Dramshop Act and the common law); Knierim, 22 Ill.2d 73, 174 N.E.2d 157 (rejecting theories based upon certain prohibited sales in the Liquor Control Act and the common law); Cunningham, 22 Ill.2d 23, 174 N.E.2d 153 (same); Cruse, 127 Ill. 231, 20 N.E. 73 (rejecting theories based upon the common law and the Dramshop Act).

As a result, few rules of law are as clear as that no liability for the sale or gift of alcoholic beverages exists in Illinois outside of the Dramshop Act. Our appellate court has generally adhered to this fundamental rule and has declined to create a new cause of action, regardless of whether the case involved adults, underage persons, or minors; liquor vendors or social hosts. See, e.g., Estate of Ritchie v. Farrell (1991), 213 Ill.App.3d 846, 157 Ill.Dec. 298, 572 N.E.2d 367 (social host furnished alcohol to a minor); Goodknight v. Piraino (1990), 197 Ill.App.3d 319, 143 Ill.Dec. 208, 554 N.E.2d 1 (vendor allowed alcohol to be furnished to an underage person); Flory v. Weaver (1990), 196 Ill.App.3d 149, 142 Ill.Dec. 755, 553 N.E.2d 105 (social host furnished alcohol to minors); Martin v. Palazzolo Produce Co. (1986), 146 Ill.App.3d 1084, 100 Ill.Dec. 703, 497 N.E.2d 881 (social host furnished alcohol to a minor); [651 N.E.2d 159] [209 Ill.Dec. 231] Zamiar v. Linderman (1985), 132 Ill.App.3d 886, 88 Ill.Dec. 219, 478 N.E.2d 534 (social host furnished alcohol to a minor); Heldt v. Brei (1983), 118 Ill.App.3d 798, 74 Ill.Dec. 413, 455 N.E.2d 842 (social hosts permitted son to serve alcohol to friends); Thompson v. Trickle (1983), 114 Ill.App.3d 930, 70 Ill.Dec. 563, 449 N.E.2d 910 (social host furnished alcohol to an adult); Ruth v. Benvenutti (1983), 114 Ill.App.3d 404, 70 Ill.Dec. 335, 449 N.E.2d 209 (vendor sold alcohol to a minor); Coulter v. Swearingen (1983), 113 Ill.App.3d 650, 69 Ill.Dec. 344, 447 N.E.2d 561 (minor social host furnished alcohol to a minor); Gora v. 7-11 Food Stores (1982), 109 Ill.App.3d 109, 64 Ill.Dec. 727, 440 N.E.2d 279 (vendor sold alcohol to a minor); Lowe v. Rubin (1981), 98 Ill.App.3d 496, 53 Ill.Dec. 919, 424 N.E.2d 710 (social host furnished alcohol to a minor); Miller v. Moran (1981), 96 Ill.App.3d 596, 52 Ill.Dec. 183, 421 N.E.2d 1046 (social hosts furnished alcohol to an adult); Camille v. Berry Fertilizers, Inc. (1975), 30 Ill.App.3d 1050, 334 N.E.2d 205 (social host furnished alcohol to an adult); Shepherd v. Marsaglia [165 Ill.2d 491] (1961), 31 Ill.App.2d 379, 176 N.E.2d 473 (vendors sold alcohol to an underage person); see also Fitzpatrick v. Carde Lounge, Ltd. (1992), 234 Ill.App.3d 875, 176 Ill.Dec. 712, 602 N.E.2d 19 (vendors sold alcohol to a minor). But see Cravens v. Inman (1991), 223 Ill.App.3d 1059, 166 Ill.Dec. 409, 586 N.E.2d 367; Colligan v. Cousar (1963), 38 Ill.App.2d 392, 187 N.E.2d 292 (discovering a common law cause of action for furnishing liquor to an intoxicated person), overruled by Wimmer v. Koenigseder (1985), 108 Ill.2d 435, 442, 92 Ill.Dec. 233, 484 N.E.2d 1088.

The plaintiffs in the present appeal now ask us to recognize a common law cause of action where a social host serves alcoholic beverages to a minor. In this situation, the plaintiffs maintain, the incapacity of the minor to perceive and protect oneself from the harm associated with consuming intoxicants is known to the social host. Therefore, the furnishing of the liquor is the proximate cause of the intoxication and the injury. The premise of their argument is that minors are a protected class, as the law recognizes their incapability to understand the consequences of consuming alcoholic beverages by forbidding it.

The plaintiffs' argument fails. All binding precedent on the subject teaches us that the General Assembly has preempted the entire field of alcohol-related liability through its passage and continual amendment of the Dramshop Act. (Hopkins, 113 Ill.2d 206, 100 Ill.Dec. 579, 497 N.E.2d 757; Wimmer, 108 Ill.2d 435, 92 Ill.Dec. 233, 484 N.E.2d 1088; Demchuk, 92 Ill.2d 1, 64 Ill.Dec. 560, 440 N.E.2d 112; Graham, 43 Ill.2d 1, 248 N.E.2d 657; Cunningham, 22 Ill.2d 23, 174 N.E.2d 153; Howlett, 402 Ill. 311, 83 N.E.2d 708; Cruse, 127 Ill. 231, 20 N.E. 73.) We are persuaded that the prior decisions of this court are correct and control the appeal sub judice. Legislative preemption in the field of alcohol-related liability extends to social hosts who provide alcoholic beverages to another person, whether that person be an adult, an underage person, or a minor. Therefore, the plaintiffs have no cause of action against their social hosts, as the Dramshop Act does not provide for one.

[165 Ill.2d 492] II

STARE DECISIS

Stare decisis is a policy of the courts to stand by precedent and leave settled points of law undisturbed. Decisions that have been established for a long period of years should, in the orderly administration of justice, be deemed controlling unless and until the General Assembly provides otherwise. Kinsey Distilling Sales Co. v. Foremost Liquor Stores, Inc. (1958), 15 Ill.2d 182, 188, 154 N.E.2d 290.

As discussed above, for over one century, this court has construed the Dramshop Act as inapplicable to a social host situation, and as providing the exclusive remedy for injuries resulting from the sale or gift of alcoholic beverages. The General Assembly has amended the Dramshop Act more than one dozen times over the years (see 235 ILCS Ann. 5/6-21, Historical & Statutory Notes, at 294-96 (West 1993)), but has never altered these interpretations. From this history it is apparent that the legislature has acquiesced in the court's construction of the statute, which has by now become part of the fabric [651 N.E.2d 160] [209 Ill.Dec. 232] of the Dramshop Act. (Miller v. Lockett (1983), 98 Ill.2d 478, 483, 75 Ill.Dec. 224, 457 N.E.2d 14; see Froud v. Celotex Corp. (1983), 98 Ill.2d 324, 336, 74 Ill.Dec. 629, 456 N.E.2d 131 (holding that considerations of stare decisis weigh more heavily where a prior judicial construction of a statute is involved).) A departure from the rules of preemption and against social host liability would now amount to an amendment of the statute itself. (Froud, 98 Ill.2d at 336, 74 Ill.Dec. 629, 456 N.E.2d 131.) Consequently, we decline the plaintiffs' invitation to depart from all prior precedent in favor of their position. We do not today hold that we are powerless to change the law. After careful and considered judgment, we hold only that adhering to stare decisis is the wisest course of action for reasons explained in this opinion.

[165 Ill.2d 493] III

PUBLIC POLICY AND JUDICIAL RESTRAINT

Ultimately, the question of whether to depart from precedent in order to recognize a negligence cause of action against social hosts who serve alcoholic beverages to minors is a public policy determination. (See W. Keeton, Prosser & Keeton on Torts § 41, at 264 (5th ed. 1984) (explaining that proximate cause is merely the boundary set to liability for the consequences of any act, which is based upon "some social idea of justice or policy").) There are many compelling reasons to defer to the legislature on this policy matter of profound consequence.

The primary expression of Illinois public and social policy should emanate from the legislature. This is especially true regarding issues like the present one, where there is disagreement on whether a new rule is warranted. The members of our General Assembly, elected to their offices by the citizenry of this State, are best able to determine whether a change in the law is desirable and workable.

Any decision to expand civil liability to social hosts should be made only after a thorough analysis of the relevant considerations. The General Assembly, by its very nature, has a superior ability to gather and synthesize data pertinent to the issue. It is free to solicit information and advice from the many public and private organizations that may be impacted. Moreover, it is the only entity with the power to weigh and properly balance the many competing societal, economic, and policy considerations involved. These considerations include such issues as whether sufficient remedies are already available to injured parties through their own insurance and the cause of action they have against the intoxicated driver who caused the accident, the effect on homeowners' and renters' insurance policies and rates, [165 Ill.2d 494] whether the social hosts' liability should be limited, and what standards of conduct should govern social hosts.

This court, on the other hand, is ill-equipped to fashion a law on this subject that would best serve the people of Illinois. We can consider only one case at a time and are constrained by the facts before us. Moreover, if we were to undertake to change the rules concerning alcohol-related liability, the law would be in a confused, disorderly state for many years while the trial courts attempted to predict how this court would eventually resolve these questions.

If this court were to adopt social host liability, then we would also be faced with determining which of the many possible permutations to follow. Should only injured third parties have a cause of action against a social host, or should the intoxicated person have one too? Should an exception be created only for minors? If so, should we treat persons under the legal drinking age of 21 as minors, or only those under the age of 18? Should minor or underage social hosts be liable for serving liquor to their similarly situated friends? Should a social host be held liable only when he or she knows that the intoxicated person will drink and drive, or should the host be held liable for all types of alcohol-induced injuries? What actions must a social host take to avoid liability where an intoxicated guest insists on driving home? Is calling a cab sufficient, or must the police be notified? The flood of injured litigants that would inevitably crowd the Illinois courts would demand answers to these [651 N.E.2d 161] [209 Ill.Dec. 233] questions and many others. The General Assembly is clearly the entity best able to resolve such issues comprehensively.

Another factor that compels us to exercise judicial restraint is that any common law liability that we create against social hosts would be unlimited. In contrast, the civil liability of liquor vendors under the Dramshop Act is limited to $30,000 for each compensable injury, or [165 Ill.2d 495] $40,000 for the loss of support. (235 ILCS 5/6-21(a) (West 1992).) To expose a social host to a much greater liability than the profiting liquor vendor is incomprehensible to us. Shall we force the people of Illinois to obtain liquor licenses in order to insulate themselves from unlimited liability for serving drinks in their home? We think not.

The plaintiffs argue that we must judicially recognize social host liability where an adult furnishes alcoholic beverages to a minor in keeping with a national trend. The dissent agrees with the plaintiffs, claiming that 26 States have adopted the view which it endorses. (See 165 Ill.2d at 516, 209 Ill.Dec. at 242, 651 N.E.2d at 170 and Appendix to Dissent.) An analysis of the law of other jurisdictions reveals otherwise. First, neither Louisiana nor Delaware has adopted social host liability, as the dissent claims. The cited Louisiana case stands only for the proposition that a minor social host owes no duty to refrain from serving beer to another minor. (See Appendix to Dissent, citation for Louisiana.) The holding in the cited Delaware case was specifically limited to a safe workplace rationale (see Appendix to Dissent, citation for Delaware), and subsequent decisions suggest that social host liability will not be adopted in Delaware (McCall v. Villa Pizza, Inc. (Del.1994), 636 A.2d 912; Oakes v. Megaw (Del.1989), 565 A.2d 914; Samson v. Smith (Del.1989), 560 A.2d 1024). Of much greater significance, however, we note that six States referred to in the dissent's appendix have allowed only third parties to recover from social hosts for injuries caused by minor drunk drivers (see Appendix to Dissent, citations for Arizona, Colorado, Georgia, Idaho, Indiana, and Utah), unlike the dissent, which would allow the intoxicated minors themselves to recover (see 165 Ill.2d at 507, 209 Ill.Dec. at 238, 651 N.E.2d at 166). There are other differences. Three States limit the amount of damages that can be recovered from a social host to $250,000 or less (see Appendix to Dissent, [165 Ill.2d 496] citations for Colorado, Maine, and Utah), unlike the dissent which would allow unlimited recovery. Further, the dissent insists that this court must adopt social host liability where adults serve alcoholic beverages to minors, yet in four States, it was the legislature, and not the courts, that first endorsed the concept. (See Appendix to Dissent, citations for Alabama, Maine, Utah, and New York.) In fact, the Alabama Supreme Court specifically held that there is no common law cause of action in cases such as this (Martin v. Watts (Ala.1987), 508 So.2d 1136, 1141); this holding is in direct conflict with the dissent's position. We further note that the very existence of a dramshop act in a jurisdiction will impact the law of that State. (See Martin, 508 So.2d at 1168-69 (Houston, J., concurring in part and dissenting in part) (noting that the very existence of a dramshop act constitutes a substantial argument against judicial adoption of social host liability).) Given all of the foregoing, we are unpersuaded by this new-trend argument. We further note that an examination of today's headlines shows that the current trend in the Illinois General Assembly and the United States Congress is not towards expanding and creating causes of action, but towards limiting and eliminating them. See, e.g., Pallasch, To Cap or Not to Cap: The Tort Battle of '95, Chicago Lawyer 1 (March 1995) (documenting trends).

In any event, we are of the view that our decision should be grounded upon the law of Illinois rather than upon contradictory trends elsewhere. Illinois' long history of legislative preemption of all alcohol-related liability makes it especially appropriate for us to defer to the legislature once again. In so deferring to legislative judgment on this issue of whether to impose social host liability upon adults who serve alcoholic beverages to minors, we find that we are not alone. Bankston v. Brennan (Fla.1987), 507 So.2d 1385; Winters v. Silver Fox [165 Ill.2d 497] Bar (1990), 71 Haw. 524, 797 P.2d 51; Johnston v. KFC National Management Co. (1990), 71 Haw. [651 N.E.2d 162] [209 Ill.Dec. 234] 229, 788 P.2d 159; Ling v. Jan's Liquors (1985), 237 Kan. 629, 703 P.2d 731; Hebb v. Walker (1988), 73 Md.App. 655, 536 A.2d 113; see also Pelzek v. American Legion (1990), 236 Neb. 608, 463 N.W.2d 321; Hinegardner v. Marcor Resorts (1992), 108 Nev. 1091, 1094-95, 844 P.2d 800, 803; Bradley, Social Host Liability in Illinois: An Exception for Minors?, 81 Ill.B.J. 362, 366 (1993) (concluding that this court should defer to the legislature on whether to impose social host liability for serving alcoholic beverages to minors).

IV

LEGISLATIVE ACTION

We note that the General Assembly has responded well to the problem of underage drunk driving by enacting various statutory provisions aimed to stop it. The legislature's actions have been effective. Statistics show that the total number of alcohol-related crash fatalities in Illinois has dramatically declined since 1982. (DUI Prevention Unit, Office of the Secretary of State (September 1994 pamphlet) (reporting a 35% decrease in the total number of alcohol-related crash fatalities from 1982 to 1993).) There has also been a substantial decrease in the percentage of Illinois underage drivers who are killed as a result of their own alcohol consumption. (DUI Prevention Unit, Office of the Secretary of State (October 1994 pamphlet) (reporting that, in 1993, 32% of tested underage drivers who had been killed had been drinking at the time of their death, down from 48% in 1990).) Moreover, Illinois has been rated first out of all 50 states for its efforts to curb drunk driving by two groups, Mothers Against Drunk Driving and Advocates for Highway and Auto Safety. Dvorak, Illinois' DUI Effort Rated No. 1, Chic.Trib., November 29, 1993.

[165 Ill.2d 498] Despite its successes, the General Assembly continues to lead vigorously the fight against underage drunk driving. Its legislation appropriately targets both the adults who provide alcoholic beverages to underage persons and the underage persons themselves. For example, the General Assembly recently stiffened the criminal penalties for adults who illegally provide alcoholic beverages to underage persons. (Pub. Act 88--613, eff. January 1, 1995 (amending 235 ILCS 5/6--16 (West 1992)).) It also recently enacted a "zero-tolerance" law that provides for the automatic suspension of the driving privileges of underage persons who are found operating a motor vehicle with any alcohol in their system. (Pub. Act 88--588, eff. January 1, 1995 (adding 625 ILCS 5/111-501.8).) The impact of these new laws remains to be seen.

The plaintiffs maintain that we should create a civil cause of action where the social host has violated section 6--16(c) of the Liquor Control Act, which provides:

"(c) Any person shall be guilty of a petty offense where he or she knowingly permits a gathering at a residence which he or she occupies of two or more persons where any one or more of the persons is under 18 years of age and the following factors also apply:

(1) the person occupying the residence knows that any such person under the age of 18 is in possession of or is consuming any alcoholic beverage; and

(2) the possession or consumption of the alcohol by the person under 18 is not otherwise permitted by this Act; and

(3) the person occupying the residence knows that the person under the age of 18 leaves the residence in an intoxicated condition." (Ill.Rev.Stat.1991, ch. 43, par. 131(c) (now 235 ILCS 5/6--16(c) (West 1992)).)

The plaintiffs argue that to recognize civil liability against social hosts in these situations would be consistent with legislative intent. We disagree.

[165 Ill.2d 499] Since 1986, the General Assembly has considered imposing various forms of social host liability upon adults who furnish alcohol to underage persons at least six times. In all instances, the attempt to create the new cause of action was rejected. 88th Ill.Gen.Assem., Senate Bill 1328, 1994 Sess.; 88th Ill.Gen.Assem., House Bill 3095, 1994 Sess.; 87th Ill.Gen.Assem., House Bill 2815, 1992 Sess.; 86th Ill.Gen.Assem., House Bill 319, 1989 Sess.; 85th Ill.Gen.Assem., House Bill 2707, 1988 Sess.; 84th Ill.Gen.Assem., House Bill 738, 1985 & 1986 Sessions.

[651 N.E.2d 163] [209 Ill.Dec. 235] Senate Bill 1328 represents the legislature's most recent opportunity to consider the issue. One portion of the bill, as originally proposed, would have added a new section 6--21.1 to the Liquor Control Act as follows:

"Sec. 6--21.1. Liability of persons supplying liquor to persons under 21. A person who is injured, in person or property, by an intoxicated person under the age of 21 has a right of action in his or her own name, severally or jointly, for damages (including reasonable attorney fees and expenses) against any person:

(i) who, by selling, giving, or delivering alcoholic liquor in violation of this Act, causes, or contributes to, the intoxication of the person under the age of 21;

(ii) who, by permitting consumption of alcoholic liquor in violation of this Act, causes, or contributes to, the intoxication of the person under the age of 21; or

(iii) who causes the injury and had become intoxicated by consuming alcoholic liquor in violation of this Act.

An action for damages under this Section is barred unless commenced within 2 years after the right of action arises." (88th Ill.Gen.Assem., Senate Bill 1328, 1994 Sess., at 5.)

As can be seen from its plain language, this provision would have provided for civil liability against any person selling, giving, or delivering alcoholic beverages to an underage person if that underage person subsequently caused injury to any person or his or her property. This provision was deleted by Senate Amendment [165 Ill.2d 500] No. 1. (Legislative Synopsis & Digest, 88th Ill.Gen.Assem., Senate Bill 1328, 1994 Sess.) An attempt by the House to reinsert the provision was defeated by the committee to which it was referred and never went beyond that committee. (Legislative Synopsis & Digest, 88th Ill.Gen.Assem., Senate Bill 1328, 1994 Sess.) The bill was enacted into law without the civil liability provision. See Pub. Act 88--613, eff. January 1, 1995.

The other bills proposed creating a similar cause of action. House Bill 3095 proposed an amendment to the Liquor Control Act, identical to the civil liability provision quoted above. (88th Ill.Gen.Assem., House Bill 3095, 1994 Sess.) House Bill 2815 would have created a statutory cause of action against social hosts, age 21 or older, who knowingly provide liquor to persons under 21 years of age who subsequently cause injuries to themselves or others while operating a motor vehicle, if the underage person was found to have a blood-alcohol content of 0.04 or greater after causing the injuries. (87th Ill.Gen.Assem., House Bill 2815, 1992 Sess.) House Bill 319 proposed creating social host liability where persons over age 21 knowingly provided liquor to persons under age 21, but, significantly, it subjected the action to the same limits of recovery that apply to commercial suppliers. (86th Ill.Gen.Assem., House Bill 319, 1989 Sess.) House Bill 2707 would have amended the Dramshop Act to provide a dramshop cause of action against both vendors and social hosts for serving liquor to underage persons who subsequently injure third persons. (85th Ill.Gen.Assem., House Bill 2707, 1988 Sess.) House Bill 738 proposed imposing dramshop liability upon adults who provide liquor to minors in private homes. (84th Ill.Gen.Assem., House Bill 738, 1985 & 1986 Sessions.) None of the bills passed, as most were tabled or died in committee.

Arguably, the General Assembly did adopt a very limited form of social host liability where an adult pays [165 Ill.2d 501] for a facility to be utilized for underage drinking. The relevant statute provides:

"[A]ny person at least 21 years of age who pays for a hotel or motel room or facility knowing that the room or facility is to be used by any person under 21 years of age for the unlawful consumption of alcoholic liquors and such consumption causes the intoxication of the person under 21 years of age, shall be liable to any person who is injured in person or property by the intoxicated person under 21 years of age." 235 ILCS 5/6--21(a) (West 1992).

The preceding discussion shows that, with perhaps one minor exception, the General Assembly has deliberately chosen not to impose social host liability upon adults who provide alcoholic beverages to persons under the legal drinking age. Certainly, given these clear refusals, we cannot now conclude [651 N.E.2d 164] [209 Ill.Dec. 236] that grafting social host liability onto section 6--16(c) (or any other section) of the statute would conform with legislative intent. (See Froud v. Celotex Corp. (1983), 98 Ill.2d 324, 336, 74 Ill.Dec. 629, 456 N.E.2d 131.) Such an interpretation would be tantamount to judicial gymnastics.

The foregoing review of legislative action reveals that the General Assembly has acted responsibly and effectively to curb the problem of underage drunk driving. In attacking the problem, the General Assembly has, thus far, deliberately chosen not to create civil liability against social hosts who serve alcoholic beverages to minors. Judicial action in the face of these legislative decisions would be ill-advised.

V

The dissent would embrace this new form of civil liability. In support, the dissent chiefly relies on an appellate court decision that Justice McMorrow herself wrote while sitting on the appellate bench, Cravens v. Inman (1991), 223 Ill.App.3d 1059, 166 Ill.Dec. 409, 586 N.E.2d 367. Cravens was an attempt to change the settled law of this State. We do not agree that the views set forth in Cravens should be adopted [165 Ill.2d 502] through judicial decision, for all the reasons set forth above. Nevertheless, the dissent raises several points that merit discussion.

The dissent maintains that the judiciary must adopt social host liability because to do otherwise "completely foresakes" the victims of underage drunk driving. (165 Ill.2d at 520, 209 Ill.Dec. at 245, 651 N.E.2d at 173) Moreover, the dissent claims, to refuse to recognize this doctrine "imposes on taxpayers the unwarranted and tremendous tax burden" of paying for injuries and deaths caused by underage drunk driving. 165 Ill.2d at 520, 209 Ill.Dec. at 245, 651 N.E.2d at 173.

The dissent's statements do not withstand scrutiny. The victims of underage drunk driving have always had, and will continue to have, a civil remedy. They can sue the drunk driver, who is undoubtedly at fault. We have not been presented with any evidence to suggest that this civil remedy is insufficient. We also have not been presented with any evidence to support the dissent's claim that taxpayers are burdened by the status quo. The legislature is in fact the only entity capable of determining if this is true and, if it is, of devising a solution to eliminate the taxpayers' burden.

The dissent also suggests that the recognition of social host liability can be limited to those situations where an adult social host permits a minor to drink to the point of intoxication, permits the minor to leave in a vehicle, and the minor or a third party is injured in an alcohol-related car accident. (165 Ill.2d at 521, 209 Ill.Dec. at 238, 651 N.E.2d at 166.) We cannot agree.

We are realistic enough to know that in virtually every instance where an underage driver is involved in an alcohol-related car accident, a clever plaintiff's attorney would drag into court any and all adults who may qualify as a social host. The focus at trial would then shift from the drunk driver to the alleged social hosts. Accidents following a wedding, for example, would [165 Ill.2d 503] include the typical targets of the bride, the groom, the parents of the bride and groom, the servers, and anyone else who may have handed the underage person a drink. Ironically, these "social hosts" could be held responsible for the underage person's drinking even if that person's parents were also in attendance. Courts and jurors would then be faced with evaluating the social host's conduct. For example: Did the social host do enough to stop the underage drinker from his or her own illegal actions? Did the host check identification to determine the guests' ages? Should the host have allowed the guests to serve themselves? Should the host have allowed underage persons to be present? Could the host have done more to prevent a guest's departure? Did the host know that the guest was visibly or obviously intoxicated? We are unwilling to open up this "Pandora's Box" of unlimited liability through judicial decision. If civil liability is to be imposed in these situations, the legislature should carefully delineate the standards of conduct expected of social hosts.

The dissent also mistakenly claims that legislative preemption has no application [651 N.E.2d 165] [209 Ill.Dec. 237] here because minors are involved. This distinction, however, is simply an attempt to avoid the clear import of this court's past decisions. As earlier noted, this court has repeatedly held that there is no common law cause of action for injuries arising out of the sale or gift of alcoholic beverages; only those causes of action that are explicitly provided for in the Dramshop Act are available in Illinois. Until Cravens, the appellate court consistently applied these clear principles to all cases involving minors and underage drinkers. See 165 Ill.2d at 490-91, 209 Ill.Dec. at 230-231, 651 N.E.2d at 158-159 (cases cited).

The dissent agrees that the General Assembly's actions to curb underage drunk driving have been "considerable and commendable." (165 Ill.2d at 518, 209 Ill.Dec. at 243, 651 N.E.2d at 171.) Yet the dissent then claims, inconsistently in our view, that the [165 Ill.2d 504] courts and legislature are in a stalemate regarding this issue. (165 Ill.2d at 513, 209 Ill.Dec. at 241, 651 N.E.2d at 169.) Our prior review of the extensive legislative action in this area reveals that no such stalemate exists. Our legislature has taken a leadership role in determining what weapons to utilize in its war against underage drunk driving and has experienced considerable success, which is evidenced by statistics. Thus far, it has chosen not to adopt the position favored by the dissent. We are confident that the legislature will continue to re-evaluate the law in this area to determine if adjustments are necessary.

Lastly, the dissent quotes extensively from an amicus curiae brief that was filed in the appellate court in Cravens. We feel compelled to point out that no such amicus curiae brief was filed in this court.

CONCLUSION

For the reasons expressed in this opinion, we decline to create any form of social host liability. The question of whether, and to what extent, social host liability should be imposed in Illinois is better answered by the legislature. The judgments of the appellate court are reversed, and the circuit courts' dismissals of the complaints for failure to state a cause of action are affirmed.

No. 76617--Appellate court reversed; circuit court affirmed.

No. 77438--Appellate court reversed; circuit court affirmed.

Justice McMORROW, dissenting:

Today, the majority holds that the Illinois Supreme Court is powerless to implement a common law negligence cause of action for injuries sustained in alcohol-related car accidents that result when adults serve minors liquor in their homes and then permit the minors to leave in a vehicle while in a state of intoxication. Under the guise of deferring to the legislature's [165 Ill.2d 505] "preemption" of the field, the majority turns its back on a development in the common law that is long overdue and has been recognized as such by the appellate court of this State and by courts of other jurisdictions. I dissent from the majority's interpretation of this court's precedent and I disagree with the majority's apparent belief that adults who allow or condone underage drinking and driving should enjoy judicially-created immunity from any civil liability for the injuries caused by teenage drunk driving.

The facts of the instant appeals illustrate the tragic consequences that result when social host adults allow teenagers to drink and drive. According to the plaintiffs' complaints, Lynn Sue Charles was 16 years old when she went to a party at the home of Alan Seigfried. She drove herself to the party in her car. The party started in the evening on February 15 and lasted into the early morning hours of February 16, 1991. Seigfried provided drinks for everyone there, including Lynn Sue. In fact, Lynn Sue had so much to drink that she became extremely intoxicated. Seigfried had personal contact with her during the party and knew the advanced state of drunkenness that she had reached. He also knew that she had driven her own car to the party. Nevertheless, Seigfried allowed Lynn Sue to leave the party, while she was extremely intoxicated, by driving her own car. She had a fatal collision while driving from the party. At the time of her death, Lynn Sue's blood-alcohol content was 0.299, which was three times the level of legal intoxication for an adult.

[651 N.E.2d 166] [209 Ill.Dec. 238] Paula Bzdek was 15 years old when she went to a party that was held at the Townsley home on September 15, 1990. The Townsleys gave her alcohol to drink while she was at the party. They also provided it to David Duff, who was 18 years old. Both Paula and David became intoxicated. They left the Townsley home in [165 Ill.2d 506] David's car while they were inebriated. The Townsleys knew that the couple left their home in David's vehicle, which he was driving, and that both were intoxicated when they left. While David was driving the vehicle, he lost control of the car and crashed into oncoming traffic. Paula sustained injuries as a result of the accident.

Suit was filed against the adult social hosts on behalf of both Lynn Sue Charles and Paula Bzdek. The pleadings alleged that the adult defendants had been negligent when they permitted minors to drink alcohol at the parties, to become intoxicated, and had then allowed the teenagers to drive a car from the gathering. The trial court dismissed the pleadings for failure to state a claim for which relief could be granted, but the appellate court reversed these determinations. Relying upon Cravens v. Inman (1991), 223 Ill.App.3d 1059, 166 Ill.Dec. 409, 586 N.E.2d 367, the appellate court held that Illinois common law recognizes a negligence action against a social host for injuries resulting from an alcohol-related vehicle accident when the host served alcohol to minors, allowed them to become intoxicated, and then permitted the minors to leave the gathering in an automobile.

The facts of Cravens are remarkably similar to the facts in the present appeals. In Cravens, adult social hosts held a party at which minors were allegedly allowed and permitted to drink alcohol to the point of intoxication. The social hosts then allowed the minors to leave the party in an automobile, although the hosts knew or should have known that they were inebriated. The driver of the vehicle lost control of the car, causing it to crash. One of the teenagers in the vehicle sustained injuries that resulted in her death.

The appellate court in Cravens squarely confronted the merits of the legal issues raised by the parties. The court held that the Dramshop Act did not preempt a common law negligence cause of action for social host liability [165 Ill.2d 507] in the provision of alcohol to a minor who becomes intoxicated and sustained injuries in an alcohol-related car accident. The Cravens court reasoned that there was nothing in the express terms of the statute, nor its jurisprudential interpretations, that excluded social host liability for the provision of alcohol to a minor. (Cravens, 223 Ill.App.3d at 1072-75, 166 Ill.Dec. 409, 586 N.E.2d 367.) The court also determined that principles of stare decisis could not legitimate a court's refusal to recognize a tort claim necessitated by modern-day realities. (Cravens, 223 Ill.App.3d at 1075, 166 Ill.Dec. 409, 586 N.E.2d 367.) Reviewing the allegations of the plaintiff's complaint, the court found the pleadings sufficient to state a claim for common law negligence. Cravens, 223 Ill.App.3d at 1076-80, 166 Ill.Dec. 409, 586 N.E.2d 367.

I reaffirm the views expressed in Cravens, and incorporate them herein by reference. There is no legal impediment to recognition of social host liability in cases where an adult social host permits a minor to drink to the point of intoxication, permits the minor to leave the gathering in a vehicle, and the minor or a third party sustains or causes injuries in an alcohol-related car accident. The citizens of this State deserve the full protection of our common law principles of tort liability, and this court has the power and the prerogative to extend to them such protections.

In today's decision, the majority reverses the rulings of the appellate court and overrules the holding in Cravens. In so doing, the majority perpetuates an injustice in our State to all victims of teen-aged drunk driving and to our taxpayers who pay much of the costs of injuries and deaths caused by alcohol-related accidents involving teen-aged drivers. This court can, and should, recognize a common law negligence cause of action for social host liability in the provision of alcohol to a minor under the limited circumstances established in Cravens. Social host liability is a valid claim under common [165 Ill.2d 508] law principles of ordinary negligence where an [651 N.E.2d 167] [209 Ill.Dec. 239] adult holds a social gathering which minors attend, the adult allows the minor to drink alcohol to the point of intoxication, the adult permits the inebriated minor to leave the gathering in an automobile although the adult knows of the minor's intoxicated condition, and the minor or a third party is then injured in an alcohol-related traffic accident.

I cannot join in my colleagues' refusal to recognize social host tort liability under the limited circumstances delineated in Cravens. In my view, the reasons advanced by the majority are hollow and stale. The majority's protestations of legislative preemption, stare decisis, and public policy cannot withstand the scrutiny of legal reasoning.

I

The majority concludes that the plaintiffs' claims for negligence against the defendant social hosts are preempted by the Illinois Dramshop Act (235 ILCS 5/6--21 (West 1992)) and that any move to enlarge the Act, in order to include claims such as those of the plaintiffs, should be undertaken by the Illinois legislature.

The majority's recitations regarding legislative preemption are misguided. This court has often held that the Dramshop Act preempts the field with respect to liability for the commercial sale of alcohol to an adult. (Hopkins v. Powers (1986), 113 Ill.2d 206, 100 Ill.Dec. 579, 497 N.E.2d 757; Wimmer v. Koenigseder (1985), 108 Ill.2d 435, 92 Ill.Dec. 233, 484 N.E.2d 1088; Knierim v. Izzo (1961), 22 Ill.2d 73, 76-77, 174 N.E.2d 157; Cunningham v. Brown (1961), 22 Ill.2d 23, 174 N.E.2d 153; Howlett v. Doglio (1949), 402 Ill. 311, 83 N.E.2d 708.) But the Dramshop Act, in neither its express terms nor its underlying intent and purpose, makes any reference to and in no way precludes social host liability for the provision of alcohol to a minor. It is illogical to construe a statute so that it says something about a topic on which the statute is clearly silent.

[165 Ill.2d 509] The majority's analysis of its own precedent is equally ill-advised. The majority states that "[f]or over a century, this court has spoken with a single voice to the effect that no social host liability exists in Illinois." (165 Ill.2d at 486, 209 Ill.Dec. at 228, 651 N.E.2d at 156.) This is an inaccurate statement of the common law of this State. What is correct as a statement of law is that this court has never addressed the issue of whether there should be social host liability for injuries caused by the provision of alcohol to a minor. Rather, this court's past decisions all address the question of whether there should be social host or dramshop liability for the provision of alcohol to an adult. See Hopkins v. Powers (1986), 113 Ill.2d 206, 100 Ill.Dec. 579, 497 N.E.2d 757 (dramshop owner not subject to "liability in tort" for purpose of contribution among joint tortfeasors); Wimmer v. Koenigseder (1985), 108 Ill.2d 435, 92 Ill.Dec. 233, 484 N.E.2d 1088 (Wisconsin dramshop not subject to jurisdiction under Illinois long-arm statute); Graham v. General U.S. Grant Post No. 2665 (1969), 43 Ill.2d 1, 248 N.E.2d 657 (Dramshop Act has no extraterritorial effect outside Illinois; reaffirmed rule that Act preempts common law negligence liability for dramshop sale of alcohol to adult); Cunningham v. Brown (1961), 22 Ill.2d 23, 174 N.E.2d 153 (Dramshop Act preempts common law liability for sale of alcohol to adult); Cruse v. Aden (1889), 127 Ill. 231, 20 N.E. 73 (Dramshop Act preempt common law liability for gift of alcohol to adult).

To rely upon this court's antiquated decision in Cruse, as the majority does (165 Ill.2d at 488, 209 Ill.Dec. at 229-230, 651 N.E.2d at 157-158), is also inaccurate. The facts in Cruse involved a grown adult male who became intoxicated, was thrown from his horse, and died. The underage drinkers in the present appeals were not riding horses. They were driving in automobiles, which are infinitely more complex, complicated, and dangerous than a common farm animal. This critical distinction is lost on the majority.

[165 Ill.2d 510] It is also very important that the injured party in Cruse was an adult male, not a young child. This court in Cruse reasoned that "[i]t was not a tort, at common law, to either sell or give intoxicating liquor to 'a strong and able-bodied man' * * *." (Cruse, 127 Ill. at 234, 20 N.E. 73.) This reasoning has no relevance to instances where the person who consumed the alcohol was under the [651 N.E.2d 168] [209 Ill.Dec. 240] legal drinking age. The issue at bar does not involve the provision of alcohol to an adult. Rather, we are specifically concerned with a social host's provision of alcohol to minors who are permitted to become intoxicated and then drive a vehicle. As the court stated in Ely v. Murphy (1988), 207 Conn. 88, 540 A.2d 54:

"The proposition that intoxication results from the voluntary conduct of the person who consumes intoxicating liquor assumes a knowing and intelligent exercise of choice, and for that reason is more applicable to adults than to minors. With respect to minors, various legislative enactments have placed them at a disability in the context of alcohol consumption. * * * These * * * statutes reflect a continuing and growing public awareness and concern that children as a class are simply incompetent by reason of their youth and inexperience to deal responsibly with the effects of alcohol. * * *

This growing public awareness * * * causes us to conclude that common law precepts in this area also warrant reexamination." Ely, 207 Conn. at 93-94, 540 A.2d at 57.

Our appellate court has expressed growing dissatisfaction with jurisprudence of this State regarding civil liability for alcohol-related injuries. Appellate decisions have already created exceptions to the general rule of non-liability for the provision of alcohol in contexts other than dramshop actions. (See, e.g., Haben v. Anderson (1992), 232 Ill.App.3d 260, 173 Ill.Dec. 681, 597 N.E.2d 655; Quinn v. Sigma Rho Chapter of Beta Theta Pi Fraternity (1987), 155 Ill.App.3d 231, 107 Ill.Dec. 824, 507 N.E.2d 1193 (imposing common law negligence liability when minor "required" to consume alcohol during college "hazing" party).) The injustice of the majority's ruling [165 Ill.2d 511] in the case at bar has been readily apparent to our appellate court:

"Our courts have observed that the extraordinary toll in personal injuries and property damage caused by alcohol-related accidents 'may well warrant' a reevaluation of current legal precedent in this State. (Estate of Ritchie [v. Farrell (1991) ], 213 Ill.App.3d , 850 [157 Ill.Dec. 298, 572 N.E.2d 367.) [ Our decisions have also acknowledged that there 'may well be validity to the position' that the Dramshop Act should not be considered an exclusive remedy when liquor is provided to a minor, and that perhaps the law should be altered so that all persons who furnish alcohol to minors are held financially accountable for injuries proximately caused by the minors' alcohol use. (Puckett [v. Mr. Lucky's Ltd. (1988) ], 175 Ill.App.3d , 357 [125 Ill.Dec. 93, 529 N.E.2d 1169.) ] It has also been cogently observed that the furnishing of alcohol to a minor seriously endangers the health, safety, and welfare of all Illinois citizens. Puckett, 175 Ill.App.3d at 361 [125 Ill.Dec. 93, 529 N.E.2d 1169] (Knecht, J., dissenting)." Cravens, 223 Ill.App.3d at 1069, 166 Ill.Dec. 409, 586 N.E.2d 367.

The concerns expressed by our appellate court are valid and compelling and deserve this court's full attention and consideration. Unfortunately, the majority refuses to exercise this court's authority to review our concepts of common law negligence liability with a view to whether they are just and fair, when considered in light of the present-day reality of the needless carnage and destruction wrought by underage drunk driving.

II

In an effort to bolster its position, the majority also invokes principles of stare decisis. The majority recites that this court must "stand by precedent and leave settled points of law undisturbed." (165 Ill.2d at 495, 209 Ill.Dec. at 231, 651 N.E.2d at 159.) According to the majority, "[d]ecisions that have been established for a long period of years should, in the orderly administration of justice, be deemed controlling unless and until the General Assembly provides otherwise. [Citation.]" (165 Ill.2d at 492, 209 Ill.Dec. at 231, 651 N.E.2d at 159.) The majority believes that "it is apparent that the legislature has acquiesced in the court's construction of the statute, [165 Ill.2d 512] which has by now become part of the fabric of the Dramshop Act. [Citations.]" 165 Ill.2d at 492, 209 Ill.Dec. at 231, 651 N.E.2d at 159.

However, this court's view of stare decisis has never been used, as the majority does in [651 N.E.2d 169] [209 Ill.Dec. 241] the present cause, as an excuse for judicial inaction that amounts to an abandonment of this court's duty to guide and develop the common law of this State.

"Our common law, which is of judicial origin, is comprised of broad, flexible principles that find their source in fundamental values of justice, logic, and common sense, and is adapted by the judiciary according to the changing demands of our society. [Citation.] As [this court] noted in Dini v. Naiditch (1960), 20 Ill.2d 406 [170 N.E.2d 881] * * *, wherein [we] recognized the common law right of a woman to sue for loss of spousal consortium:

'We find no wisdom in abdicating to the legislature our essential function of re-evaluating common-law concepts in the light of present day realities. Nor do we find judicial sagacity in continually looking backward and parroting the words and analysis of other courts so as to embalm for posterity the legal concepts of the past.' 20 Ill.2d at 429 [170 N.E.2d 881.]" Cravens, 223 Ill.App.3d at 1074, 166 Ill.Dec. 409, 586 N.E.2d 367.

As these principles demonstrate, the rule of stare decisis is not "so static that it deprives the court of all power to develop the law. (Alvis [v. Ribar (1981) ], 85 Ill.2d [1,] 24 [52 Ill.Dec. 23, 421 N.E.2d 886.) ] * * * [T]he maintenance of stability in our legal concepts does not and should not occupy a preeminent position over the judiciary's obligation to reconsider legal rules that have become inequitable in light of the changing needs of our society. Alvis, 85 Ill.2d at 24 [52 Ill.Dec. 23, 421 N.E.2d 886.]" Cravens, 223 Ill.App.3d at 1075, 166 Ill.Dec. 409, 586 N.E.2d 367.

Moreover, the doctrine of stare decisis provides no refuge for the majority in the present cause because, as noted more fully above, this court has never addressed whether there should be social host liability for the provision of alcohol to a minor. The legislature's failure to [165 Ill.2d 513] adopt proposed statutory provisions that would have been consistent with Cravens does not establish that the General Assembly has repudiated the principles enunciated in Cravens. Rather, the General Assembly's actions reveal that the legislature has chosen to "conform[ ] the statutes to the then-existing laws as announced by the court." (Alvis v. Ribar (1981), 85 Ill.2d 1, 23, 52 Ill.Dec. 23, 421 N.E.2d 886.) This court's reasoning in Alvis, where we adopted the doctrine of comparative negligence notwithstanding the General Assembly's failure to enact equivalent legislation, is particularly applicable:

"We believe that the proper relationship between the legislature and the court is one of cooperation and assistance in examining and changing the common law to conform with the ever-changing demands of the community. There are, however, times when there exists a mutual state of inaction in which the court awaits action by the legislature and the legislature awaits guidance from the court. Such a stalemate is a manifest injustice to the public. When such a stalemate exists and the legislature has, for whatever reason, failed to act to remedy a gap in the common law that results in injustice, it is the imperative duty of the court to repair that injustice and reform the law to be responsive to the demands of society." Alvis, 85 Ill.2d at 23-24, 52 Ill.Dec. 23, 421 N.E.2d 886.

This court's analysis in Alvis is equally persuasive in the present appeals. Although the General Assembly has not enacted legislation to formally adopt Cravens, the legislature has also never enacted legislation to overturn the appellate court's Cravens decision. As a result, it is incumbent upon this court to exercise its power and prerogative to develop the common law of this State and to decide that our common law encompasses a claim for social host negligence liability for injuries resulting from teen-age, alcohol-related vehicle accidents. This court can and must "repair th[e] [present] injustice and reform the law to be responsive to the demands of society."

[165 Ill.2d 514] Furthermore, it cannot be cogently argued by the majority that this court has never expanded upon the explicit terms of the Dramshop Act. To the contrary, this court has created, by judicial fiat, a significant exclusion to the applicability of the specific provisions of the Dramshop Act. That exclusion is commonly known as the "complicity [651 N.E.2d 170] [209 Ill.Dec. 242] doctrine" and bars recovery by a plaintiff who actively procured or contributed to the intoxication of the person now sued for wrongful conduct. The complicity doctrine was woven from whole cloth by this court and has never been expressly adopted by the legislature. Yet it stands, and remains, as a valid exception to the Act. See Walter v. Carriage House Hotels, Ltd (1995), 164 Ill.2d 80, 207 Ill.Dec. 33, 646 N.E.2d 599.

Since this court possessed and exercised the power to create the complicity doctrine as an exception to the Dramshop Act, then this court certainly has the power to create an additional exception for social host liability in the provision of alcohol to a minor under the limited circumstances recognized in Cravens. The majority's refusal to do so, under the guise of stare decisis, is therefore all the more untenable.

III

I also disagree with the majority's view that social drinking is such a sensitive public policy issue in this State that we should defer to the legislature to decide whether there should be social host liability in the provision of alcohol to a minor under the limited circumstances recognized in Cravens.

The majority complains that it is ill-suited to weigh the various competing factors that are implicated in determining whether social hosts should avoid civil liability when they facilitate drunk driving by minors. The concerns of the majority are exaggerated. This court has faced other difficult and pressing issues that implicated broad social policy, such as the legality of [165 Ill.2d 515] withdrawing life-saving artificial nutrition and hydration (In re Greenspan (1990), 137 Ill.2d 1, 146 Ill.Dec. 860, 558 N.E.2d 1194; In re Longeway (1989), 133 Ill.2d 33), 139 Ill.Dec. 780, 549 N.E.2d 292), adoption of principles of comparative negligence (Alvis v. Ribar (1981), 85 Ill.2d 1, 52 Ill.Dec. 23, 421 N.E.2d 886), and adoption of rules that allow contribution among joint tortfeasors (Skinner v. Reed-Prentice Division Package Machinery Co. (1977), 70 Ill.2d 1, 15 Ill.Dec. 829, 374 N.E.2d 437). In each of these instances, this court confronted the questions raised both forthrightly and directly. Certainly the issues considered in Greenspan, Longeway, Alvis, and Skinner were just as difficult and complicated as those that we are called upon to consider now.

In the past, we have not been persuaded by the argument that this court should refrain from taking action because the General Assembly had considered, but rejected, legislation that would have achieved what was accomplished by judicial decision in our rulings. Instead, this court acknowledged and acted upon its mandated responsibility to develop and guide the common law of this State, including common law principles regarding tort liability for damages caused by negligent behavior. (See, e.g., Longeway, 133 Ill.2d at 52-55, 139 Ill.Dec. 780, 549 N.E.2d 292; Alvis, 85 Ill.2d at 21-24, 52 Ill.Dec. 23, 421 N.E.2d 886; see also Skinner, 70 Ill.2d at 13-14, 15 Ill.Dec. 829, 374 N.E.2d 437.) These visionary and ground-breaking decisions would never have been adopted if the court had adhered to the present majority's inaccurate perception of stare decisis.

The majority's treatment of jurisprudence from other states is equally distorted. Notwithstanding the majority's protestations to the contrary, there is a clear national trend favoring social host liability for the provision of alcohol to minors subsequently injured in alcohol-related vehicle accidents. (See Appendix to Dissent.) In fact, since Cravens was decided, three more States, Arizona, North Carolina and Washington, have adopted social host liability for the provision of alcohol to a minor. (See also Born v. Mayers (N.D.1994), 514 [165 Ill.2d 516] N.W.2d 687 (dramshop statute creates private cause of action against social host who provided alcohol to an obviously intoxicated adult).) Thus, as of the date of this writing, 26 States have adopted social host liability for injuries caused by adult social hosts who knowingly permitted teen-age drunk driving.

Although the majority makes particular reference to some of the decisions from other States (165 Ill.2d at 495, 209 Ill.Dec. at 233, 651 N.E.2d at 161), its references are highly selective and, at times, somewhat misleading. Contrary to the majority's understanding of the pertinent case law, both Louisiana and Delaware have adopted social host liability. [651 N.E.2d 171] [209 Ill.Dec. 243] Also, the Alabama Supreme Court adopted social host liability as a judicially created negligence action based upon the provisions of relevant statutory provisions prohibiting the sale or giving of liquor to a minor. In so ruling, the court noted that the "trend in recent decisions of other jurisdictions is to allow causes of action where adults have assisted in furnishing alcoholic beverages to minors" and included a lengthy appendix detailing these decisions. (Martin v. Watts (Ala.1987), 508 So.2d 1136, 1141.) The handful of States that have limited recovery to third parties, or have imposed a cap on the amount of recovery, have nonetheless adopted social host liability. The Nevada decision cited by the majority is not pertinent to our present inquiry, since the case involved the question of whether the court should adopt common law liability for the commercial sale of alcohol, and the " 'new trend' argument" that it rejected did not pertain to social host liability for the noncommercial furnishing of alcohol. (Hinegardner v. Marcor Resorts (1992), 108 Nev. 1091, 1094-95, 844 P.2d 800, 803; see also Pelzek v. American Legion (1990), 236 Neb. 608, 463 N.W.2d 321 (commercial sale of alcohol).) The majority neglects to acknowledge the single thread running through many of the decisions from other States that have recognized [165 Ill.2d 517] social host liability: the overwhelmingly significant social policy of deterring adults from providing alcohol to minors in social settings and then permitting the teenagers to drive a vehicle while intoxicated.

I am unpersuaded by the majority's professed apprehension for the potentially "unlimited" liability of social hosts in comparison to dramshop owners. The majority's concern fails to appreciate the distinctions between common law negligence liability and liability under the Dramshop Act.

"[T]he limited dollar recovery provided in the Act reflects the unique liability created under the Act: a dramshop owner is liable without fault. [Citation.] The defendants' common law negligence liability, on the other hand, requires proof that the defendant breached a duty to exercise the appropriate standard of care under the circumstances, i.e., proof of fault. [Citation.] In addition, the defendants' common law negligence liability would not be 'unlimited,' but would be offset by the percentage attributable to the plaintiff's comparative fault, if any, and the contribution, if any, of other tortfeasors. [Citation.]" Cravens, 223 Ill.App.3d at 1079-80, 166 Ill.Dec. 409, 586 N.E.2d 367.

Little sympathy can be extended to adults who, as alleged in the present cases, engaged in criminal conduct by openly fostering and furthering the alcoholic intoxication of teenagers, and who then permitted those young persons to get into automobiles knowing full well that they were inebriated. I believe this court should be more concerned about the injuries and fatalities caused by needless teenage drunk driving, and should be less preoccupied with the exposure to liability of the social host adults who promoted that drunk driving. The majority's reference to social host's need for a "license" to serve alcohol is not well founded, since providing alcohol to a minor is a criminal offense in this State for which no one, whether social host or dramshop, would ever be issued a "license."

[165 Ill.2d 518] It is beyond dispute that the General Assembly's actions thus far to curb underage drunk driving have been considerable and commendable. However, I cannot agree with the majority's implicit view that Cravens represented judicial interference in the legislature's duties or powers. Development of the common law is an inherently judicial function. As justices of this State's supreme court, we are elected to facilitate the evolution of our common law in order to accommodate the changing needs of our citizens. Consequently, recognition of negligence liability, which is and has always been the common, judge-made law of this State, does not interfere with the legislature's role.

Recognition of social host liability for the provision of alcohol to minors who become intoxicated and are then injured in alcohol-related vehicle accidents is not inconsistent with the spirit or policy for the General Assembly's adoption of the Dramshop Act.

"When first enacted, the Illinois dram shop laws were an innovative and progressive [651 N.E.2d 172] [209 Ill.Dec. 244] approach to dealing with problems arising from the consumption of alcohol. The laws provided for strict liability and called for a liberal construction to ensure the protection of the 'health and welfare of the people of Illinois.' The dram shop laws initially, in harmony with their purpose, gave a sword to innocent victims by allowing them to overcome the common law prohibition against dram shop actions." (Comment, Illinois Dram Shop Reform, 28 John Marshall L.Rev. 215, 215-16 (1994).)

Recognizing social host liability under the limited circumstances set forth in Cravens is completely consistent with the purposes of dramshop liability. By imposing liability on adults who promote teenage drunk driving, this court would fashion a progressive rule to aid the legislature in its "war on drunk driving" by teenagers.

The General Assembly's recent legislation (see 165 Ill.2d at 497, 209 Ill.Dec. at 234, 651 N.E.2d at 162) to further curb drunk driving is also wholly consistent with Cravens. Surely the legislature's [165 Ill.2d 519] enactments were not meant to imply that this court should sit idly by and pass off to the legislature any and all decisions regarding the recognition of social host civil liability for provision of alcohol to a minor. There is nothing contradictory in the "war on drunk driving" and the ruling in Cravens. In fact, Mothers Against Drunk Driving (MADD) filed an amicus curiae brief in Cravens and asked the appellate court to recognize social host liability. Its arguments included the following:

"This lawsuit is the very first in which MADD * * * has sought to lend its voice and the voice of its members. While focussing its efforts on the types of programs and outreach efforts which exemplify the national organization, MADD has awaited the response of Illinois' courts and legislature to the prayers for a remedy directed against those who facilitate illegal under-age drinking. The interest of MADD in this lawsuit is simply to impress upon the Court the need for our judiciary to endorse liability against irresponsible social hosts and enable justice to be done for the innocent victims of callous and careless private citizens. MADD is strongly committed to the position that sound public policy and legal principles support such a remedy."

After reviewing reports regarding the consumption of alcohol by minors, and the increased likelihood that minors will suffer alcohol-related vehicle accidents, MADD argued:

"These statistical realities squarely support the causal link between teenage drinking, motor vehicle collisions and injuries. With scores of teenagers and innocent victims being killed in alcohol-related collisions, society requires an avenue of recourse against those contributing to the illegal consumption of liquor. The imposition of liability on those who unlawfully serve liquor to and encourage consumption by teenagers is overwhelmingly justified."

Information cited by MADD established the extent to which adolescents are unable to appreciate the consequences of drinking. This showed that adolescents do [165 Ill.2d 520] not appreciate the effects of alcohol and do not recognize the likelihood that their driving abilities would be impaired if they were to attempt to drive after having become intoxicated.

Statistics recently published by the Illinois Secretary of State in conjunction with his "War on Drunk Driving" similarly paint a grim picture of underage drinking in this State. The Secretary of State relates that, according to the National Commission Against Drunk Driving, car accidents are the leading cause of death for minors age 16 to 20 (40,000 Lives: A Decade of Progress 4), and minors are much more likely to be involved in car crashes in their first few years of driving (40,000 Lives: A Decade of Progress 5). More than a third of teen-age drivers who were killed in car accidents in 1992 had a blood alcohol level of at least .10 percent. 40,000 Lives: A Decade of Progress 5.

It is a sad commentary that the citizens of this State must suffer the staggering consequences of the majority's refusal to take a firm stand against social hosts who allow minors to get drunk and then drive a car. Under the majority's holding, adults are free to serve alcohol to minors until the youths [651 N.E.2d 173] [209 Ill.Dec. 245] are intoxicated, and nevertheless permit the minors to then drive a vehicle in spite of their inebriation. In so ruling, the majority holds that such adults are wholly shielded and immune from any civil penalty for their actions. In my view, this result is an injustice and an outrage. It completely forsakes victims of teenage drunk driving and affords them no civil remedy whatsoever under the law from the adult social host who provided the alcohol and fostered the minor's intoxication. In addition, the majority's decision imposes on taxpayers the unwarranted and tremendous tax burden of covering much of the costs associated with injuries and deaths caused by teenage drunk driving. (See Secretary of State, 1993 [165 Ill.2d 521] DUI Fact Book, at II (stating that according to national estimates, alcohol-related crashes cost taxpayers millions of dollars in tax monies).) The clear and manifest injustice perpetuated by the majority's disposition is entirely unnecessary, since there is no sound legal justification for the majority's refusal to apply time-honored principles of common law negligence in the cases presently before us.

In view of the majority's decision, legislative action becomes all the more critical. Until more is done, adults who host parties where minors are allowed to become inebriated and then drive a vehicle will have less incentive to change their ways and "just say no" to teenage drunk driving. Adult social hosts must realize that there are legal ramifications, both civil and criminal, to allowing teenage drunk driving. Unless that lesson is taught and learned, we all will suffer the ugly and tragic consequences, whether physical, emotional, social, and economic, that are inflicted when minors are permitted to drink and drive.

For these reasons, I respectfully dissent.

HARRISON, J., joins in this dissent.

ATTACHMENT

APPENDIX TO DISSENT

Alabama

Martin v. Watts (Ala.1987), 508 So.2d 1136

Arizona

Estate of Hernandez v. Arizona Board of Regents (1994), 177 Ariz. 244, 866 P.2d 1330

Colorado

Colo.Rev.Stat. § 12--47--128.5 (1994).

Connecticut

Ely v. Murphy (1988), 207 Conn. 88, 540 A.2d 54

Delaware

DiOssi v. Maroney (Del.1988), 548 A.2d 1361

Georgia

Sutter v. Hutchings (1985), 254 Ga. 194, 327 S.E.2d 716;

Ga.Code Ann. § 51--1--40 (1994)

[165 Ill.2d 522] Idaho

Slade v. Smith's Management Corp. (1991), 119 Idaho 482, 808 P.2d 401; Alegria v. Payonk (1980), 101 Idaho 617, 619 P.2d 135; Idaho Code § 23--808 (Supp.1994)

Indiana

Brattain v. Herron (1974), 159 Ind.App. 663, 309 N.E.2d 150

Iowa

Bauer v. Dann (Iowa 1988), 428 N.W.2d 658

Louisiana

Gresham v. Davenport (La.1989), 537 So.2d 1144

Maine

Me.Rev.Stat.Ann. tit. 28-A, § 2501 et seq. (West 1994)

Massachusetts

McGuiggan v. New England Telephone & Telegraph Co. (1986), 398 Mass. 152, 496 N.E.2d 141

Michigan

Longstreth v. Gensel (1985), 423 Mich. 675, 377 N.W.2d 804

Minnesota

Minn.Stat. § 340A.801 (1994), abrogating Holmquist v. Miller (Minn.1985), 367 N.W.2d 468

Montana

Nehring v. LaCounte (1986), 219 Mont. 462, 712 P.2d 1329; Mont.Code Ann. §§ 16--6--305, 27--1--710 (1994)

[651 N.E.2d 174] [209 Ill.Dec. 246] New Jersey

Batten v. Bobo (1986), 218 N.J.Super. 589, 528 A.2d 572

New Mexico

Walker v. Key (App.1984), 101 N.M. 631, 686 P.2d 973; N.M.Stat.Ann. § 41--11--1 (Michie 1994)

New York

Montgomery v. Orr (1986), 130 Misc.2d 807, 498 N.Y.S.2d 968; N.Y. General Obligations Law § 11--100 et seq. (McKinney 1989)

North Carolina

Hart v. Ivey (1992), 332 N.C. 299, 420 S.E.2d 174

Ohio

Mitseff v. Wheeler (1988), 38 Ohio St.3d 112, 526 N.E.2d 798

[165 Ill.2d 523] Oregon

Wiener v. Gamma Phi Chapter of Alpha Tau Omega Fraternity (1971), 258 Or. 632, 485 P.2d 18; Or.Rev.Stat. § 30.950 (1994)

Pennsylvania

Congini v. Portersville Valve Co. (1983), 504 Pa. 157, 470 A.2d 515

Utah

Utah Code Ann. § 32A--14--101 (1994)

Vermont

Langle v. Kurkul (1986), 146 Vt. 513, 510 A.2d 1301; Vt.Stat.Ann. tit. 7, § 501 (1994)

Washington

Hansen v. Friend (1992), 118 Wash.2d 476, 824 P.2d 483

Wisconsin

Koback v. Crook (1985), 123 Wis.2d 259, 366 N.W.2d 857

[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.

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[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).