Bell, C.J.^[1] Harrell, Battaglia, Greene, Adkins, Barbera, McDonald, JJ.

Opinion by BATTAGLIA, J.

This case presents us with the opportunity to consider once again whether or not this Court should recognize dram shop liability.^[2]

William J. Warr, Jr. and Angela T. Warr filed suit in the Circuit Court for Montgomery County against JMGM Group,^[3] LLC, which owns the Dogfish Head Alehouse (Dogfish Head), to recover for injuries they and their daughter Cortavia M. Harris sustained and for the death of their second daughter, Jazimen, in a car accident. The Warrs alleged that Michael Eaton,^[4] the driver of the vehicle that struck the car Mr. Warr was driving, had been served alcohol while Mr. Eaton was "clearly intoxicated" at Dogfish Head. Because members of the Dogfish Head's staff had served Mr. Eaton alcohol while he was so compromised, the Warrs alleged, the tavern had breached its duty to them to "not furnish alcohol to intoxicated persons," which caused their injuries.^[5]

Judge Eric M. Johnson of the Circuit Court for Montgomery County denied Dogfish Head's motion to dismiss. In granting, however, Dogfish Head's motion for summary judgment, Judge Johnson opined that he was bound by our decisions in State v. Hatfield, 197 Md. 249, 78 A.2d 754 (1951) and Felder v. Butler, 292 Md. 174, 438 A.2d 494 (1981) in which dram shop liability was not recognized as a cause of action in Maryland. The Warrs appealed Judge Johnson's decision but, before any proceedings in the Court of Special Appeals, we granted the Warrs' petition for certiorari, 427 Md. 606, 50 A.3d 606 (2012), to consider whether this Court should recognize dram shop liability.

The undisputed facts that give rise to our consideration of dram shop liability in this case were set forth by Judge Johnson in his opinion granting Dogfish Head's motion for summary judgment and reflect that on August 21, 2008, Michael Eaton was a customer at Dogfish Head Alehouse, which is located in Gaithersburg, Montgomery County. Mr. Eaton began drinking beer and liquor at 5:00 pm, allegedly ordering fourteen bottles of beer and two drinks of hard liquor and drinking at least one other drink that was purchased for him.^[6] Mr. Eaton stopped drinking at about 10:00 pm that evening and left, but returned to the Dogfish Head about forty-five minutes later and allegedly ordered three more bottles of beer and a shot of tequila.^[7] After being served the tequila, Mr. Eaton was informed by his server that he was not going to be served any more alcohol. Judge Johnson also noted that, "[a]n employee of the Dogfish offered to call a cab for this patron who they had cut off from alcoholic beverages. He refused." The complaint alleges that after Mr. Eaton left Dogfish Head in his vehicle, he was involved in the accident on Interstate 270 that forms the basis of the instant action.

In their complaint, the Warrs asserted five causes of action, all related to negligence. In each count, the theory of liability was that Dogfish Head had a duty to refuse to provide alcoholic beverages to an individual who was either visibly intoxicated or who was considered a "habitual drunkard." The Warrs asserted that the employees of Dogfish Head knew the Mr. Eaton was a "habitual drunkard" and that they knew, or should have known, that he was visibly intoxicated and still served him alcohol, which was the proximate cause, according to the Warrs, of the collision:

10. At all times material, [Dogfish Head] and its agents, servants and employees had a legal duty to not furnish alcohol to intoxicated persons and to not furnish alcohol to a habitual drunkard.

11. Notwithstanding this duty, and in breach thereof, [Dogfish Head's] agents, servants and employees negligently furnished alcohol to Michael Eaton, a clearly intoxicated individual who was also known as a habitual drunkard. [Dogfish Head] is vicariously liable for negligence of its agents, servants, and employees and [the Warrs'] resulting injuries and damages.

12. As a direct and proximate result of this breach of duty by [Dogfish Head], and its agents, servants and employees, Mr. Eaton operated his vehicle under the influence of alcohol. During the operation of his vehicle, Michael Eaton struck the rear of the Warr vehicle, causing Jazimen L. Warr to suffer fatal bodily injuries, to experience conscious pain and suffering and to suffer other damages. The Estate of Jazimen L. Warr also incurred medical expenses and burial and funeral expenses.

Dogfish Head filed a motion to dismiss, under Maryland Rule 2-322(b)(2),^[8] for failure to state grounds upon which relief could have been granted, in which it asserted that dram shop liability was not recognized in Maryland. Judge Johnson denied the motion, stating that, although in our decisions in Hatfield and Felder, as well at the Court of Special Appeals' decision in Wright v. Sue & Charles, Inc., 131 Md. App. 466, 749 A.2d 241 (2000), did not recognize a cause of action against a provider of alcoholic beverages under a theory of dram shop liability, "[o]ral arguments convinced this Court that the factual underpinnings of this case make a change in Maryland's jurisprudence with respect to Dram Shop Liability ripe to the core." Judge Johnson concluded that dismissal was not warranted, stating that:

[t]he dram shop laws and the rationale in support of them should be as the Court said in Felder . . . `a vestige of the past no longer suitable for the circumstances of our people. . . .' Felder v. Butler, 292 Md. 174, 182-83. Maryland Courts have not hesitated to adopt a new cause of action by judicial decision when they have concluded that course was compelled by changing circumstances. For the reasons set for herein and reflected in the attached Order, Defendant's Motion to Dismiss is denied.

Dogfish Head, thereafter, filed a motion for summary judgment, asserting that Maryland did not recognize dram shop liability and that the facts did not warrant a change. Judge Johnson granted Dogfish Head's motion for summary judgment and issued an opinion that deviated from his earlier denial of Dogfish Head's motion to dismiss, based upon his view that the Circuit Court was not the appropriate judicial actor to make a "radical change" in the common law:

The facts of this case undoubtedly could serve as the impetus to adjusting Maryland jurisprudence on the topic of dram ship liability. This Court, however, is not the proper Court to make such a radical change in Maryland jurisprudence. The decision to overturn stare decisis is the province of the Maryland Court of Appeals. Consequently, this Court is bound by stare decisis and must grant the Defendant summary judgment. The Court is of the opinion that while the Maryland Legislature has not enacted dram shop liability legislation, it has not expressly prohibited it. The Court of Appeals, thus, is in a unique position where it can harmonize our jurisprudence with current societal conditions without being in conflict with the Maryland Legislature. The Maryland Court of Appeals has not hesitated to adopt a new cause of action by judicial decision when it had concluded that course was compelled by changing circumstances. This Court is of the opinion that the same holds true for dram shop liability. For the reasons set forth herein and reflected in the attached Order, Defendant's Motion for Summary Judgment is granted.

The Warrs appealed this decision, but, before any consideration in our intermediate appellate court, we granted their petition for certiorari to consider, once again, whether we should adopt dram shop liability. We shall decline to impose dram shop liability on Dogfish Head in the absence of any duty owed by the tavern to the Warrs.

In considering the question, we do not write on a blank slate.^[9] We first considered whether to adopt dram shop liability in State v. Hatfield, 197 Md. 249, 78 A.2d 754 (1951), in which the widow of James Joyce sought damages for her husband's death in a car accident, caused by a minor who had been served alcohol by Hatfield and then assumed the wheel of a car. The trial court sustained Hatfield's demurrer^[10] on the ground that providing alcohol was not a proximate cause of the accident. We affirmed but limited our analysis, however, to the issue of proximate cause:

[a]part from statute, the common law knows no right of action against a seller of intoxicating liquors, as such, for `causing' intoxication of the person whose negligent of wilful wrong has caused injury. Human beings, drunk or sober, are responsible for their own torts. The law (apart from statute) recognizes no relation of proximate cause between a sale of liquor and a tort committed by a buyer who has drunk the liquor.

Hatfield, 197 Md. at 254, 78 A.2d at 756. We declined to adopt dram shop liability, noting that it was for the legislative branch, not the judiciary, to consider:

In the course of the law hundred years there probably has seldom, if ever, (except during prohibition) been a regular session of the General Assembly at which no liquor laws were passed. On few subjects are legislators kept better informed of legislation in other states. In the face of the flood of civil damage laws enacted, amended and repealed in other states and the Volstead Act — and the total absence of authority for such liability, apart from statute — the fact that there is now no such law in Maryland expresses the legislative intent as clearly and compellingly as affirmative legislation would.

Id. at 256, 78 A.2d at 757.

Three decades after our decision in Hatfield, we again were asked to adopt dram shop liability in Felder v. Butler, 292 Md. 174, 438 A.2d 494 (1981). In that case, Kenneth Felder sued Spearman Butler for injuries relating to a car accident involving Madeline Hawkins who, Felder alleged, was intoxicated as a result of Butler's sale of alcohol. The Circuit Court for Charles County sustained Butler's demurrer on the ground that Hatfield settled the matter.

In seeking a reversal of Hatfield, Felder argued before us that the legal landscape had changed significantly in the intervening thirty years and that many jurisdictions had adopted dram shop liability in the interim. We noted, however, that our Legislature had attached only criminal penalties to the sale of liquor to obviously intoxicated persons, Section 118(a) of Article 2B of the Annotated Code of Maryland (1957, 1976 Repl. Vol.),^[11] and that states that had enacted criminal, but not civil, statutes regulating the sale of alcohol adhered to the common law rule of non-liability. Felder, 292 Md. at 181-82, 438 A.2d at 498.

Felder also argued that societal changes in attitudes regarding alcohol consumption as well as the sharp increase in the number of states recognizing dram shop liability should have influenced our consideration of dram shop liability. In declining the invitation to change the common law, we acknowledged that the Legislature regulates the dispensing and consumption of alcoholic beverages and recognized that the failure to enact dram shop liability reflected that its imposition was disfavored as a matter of public policy:

Whether Maryland should abandon the rule in Hatfield and align itself with the new trend of cases which impose civil liability upon vendors of alcoholic beverages for the torts of their inebriated patrons depends ultimately upon which line of authorities, all things considered, best serves the societal interest and need. That determination clearly impacts on the development of the law relating to the dispensing and consumption of alcoholic beverages, a subject long pervasively regulated by the legislature.

* * *

In determining the public policy of the State, courts consider, as a primary source, statutory or constitutional provisions. Therefore, since the legislature has not yet created dram shop liability by statute, we decline, for now, to join the new trend of cases. . . .

Id. at 183-84, 438 A.2d at 499.

In the instant case, the Warrs adopt many of Felder's arguments and emphasize that societal shifts have been even more intense since Felder, because knowledge regarding the risks and consequences of drunk driving has increased substantially. They also argue that our analysis regarding proximate cause has shifted since Felder. Finally, they argue that nearly every other State recognizes, statutorily or at common law, some form of civil liability for vendors of alcohol who sell intoxicants to obviously intoxicated patrons. With respect to duty, the Warrs essentially argue that the Dogfish Head had a duty to protect them from injury from the acts of an evidently inebriated patron by refusing to serve that individual alcohol once he had become visibly intoxicated.

Dogfish Head responds that in Hatfield and Felder we appropriately stated that it was the role of the Legislature, not the courts, to adopt dram shop liability, in part because alcohol consumption is such a heavily regulated field. Dogfish Head also asserts that our jurisprudence does not recognize a duty imposed upon a tavern to protect the general public from the actions of a patron, absent a special relationship that does not exist here. Finally, the tavern asserts that our jurisprudence regarding proximate cause has not expanded so far as to impose liability in the present case, because Mr. Eaton himself made the decision to drink the alcohol and to drive home.

Any theory of liability sounding in negligence is predicated on the existence of the following elements: "(1) that the defendant was under a duty to protect the plaintiff from injury, (2) that the defendant breached that duty, (3) that the plaintiff suffered actual injury or loss, and (4) that the loss or injury proximately resulted from the defendant's breach of the duty." Valentine v. On Target, Inc., 353 Md. 544, 549, 727 A.2d 947, 949 (1999) (internal quotation marks omitted). Vital to sustaining a cause of action in negligence is the existence of a legally recognized duty owed by the defendant to the particular plaintiff. Id. at 549, 727 A.2d at 949. Duty, in this regard, is "an obligation, to which the law will give recognition and effect, to conform to a particular standard of conduct toward another." Patton v. USA Rugby Football, 381 Md. 627, 636-37, 851 A.2d 566, 571 (2004) (internal quotations omitted).

The Warrs proffer multifaceted arguments regarding the existence of a duty sufficient to support a cause of action against Dogfish Head. They assert that this Court, in Hatfield, assumed that there is a duty on the part of a tavern owner to refrain from providing alcohol to an intoxicated patron when we stated, "[w]e may assume, without deciding, that on such facts the defendant would be `guilty of an actionable wrong independently of any statute', not, however, for making the driver drunk by selling him liquor, but for placing him bodily, in a state of unconsciousness, in the sleigh and starting the horses." Hatfield, 197 Md. at 252, 78 A.2d at 755.

This argument, however, does not bear weight under careful scrutiny, because we were emphasizing that a tavern owner who placed an unconscious patron in a sleigh would have undertaken a duty to the injured third party by actually placing the patron in the transport and starting it home, were that to have occurred. We began our discussion by reviewing an Indiana case, Dunlap v. Wagner, 85 Ind. 529, 530 (1882), in which a tavern owner had placed an unconscious patron into a sleigh and started the horses homeward. Because the patron in that case was unconscious, however, the horses ran off-route and one of them, owned by the plaintiff, was killed. We then opined that the tavern could have been liable under Maryland law, were its agent to actually have set events in motion by starting the horses home. In so doing we were not recognizing, implicitly or otherwise, the existence of a duty owed to a third party by the tavern owner to refuse to serve an intoxicated patron.

The Warrs next assert that Dogfish Head owed them a duty to prevent the harm caused by Mr. Eaton based on general principles of negligence law. Duty, however, is not assumed, but is generally determined by examining a number of factors, to include:

the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered the 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.

Ashburn v. Anne Arundel County, 306 Md. 617, 627, 510 A.2d 1078, 1083 (1986), quoting Tarasoff v. Regents of University of California, 551 P.2d 334, 342 (Cal. 1976). Our analysis, unlike what the Warrs assert and the dissent embraces, supports the conclusion that Dogfish Head did not owe a duty to the Warrs because of its provision of alcohol to Mr. Eaton.

With respect to foreseeabililty, the Warrs assert that the provision of alcohol to an intoxicated person will cause death to a third party, but this causal relationship is anything but assured. The first limitation is the inherent assumption that the third party, to whom alcohol was served, such as Mr. Eaton, will drive, which is obviously not an absolute. Indeed, in this case, Dogfish Head attempted to contact a taxi service for Mr. Eaton, but he refused. It is simply not a given that imbibing alcohol and driving are coextensive.

Even more of an obstacle is the assumption that Dogfish Head, or any entity or person who serves alcohol to another, has control over the actions of that party. Forseeability in the context of controlling ones's own behavior is readily derived. If a person fires a gun randomly, it is a natural and foreseeable result that someone else may be harmed by the bullet, and thus the individual is under a duty to exercise reasonable care in discharging his or her weapon.

When the harm is caused by a third party, rather than the first person, as is the case here, our inquiry is not whether the harm was foreseeable, but, rather, whether the person or entity sued had control over the conduct of the third party who caused the harm by virtue of some special relationship:

"[t]he fact that a result may be foreseeable does not itself impose a duty in negligence terms. This principle is apparent in the acceptance by most jurisdictions and by this Court of the general rule that there is no duty to control a third person's conduct so as to prevent personal harm to another, unless a `special relationship' exists either between the actor and the third person or between the actor and the person injured."

Remsburg v. Montgomery, 376 Md. 568, 583, 831 A.2d 18, 26-27 (2003), quoting Ashburn, 306 Md. at 628, 510 A.2d at 1083. A tavern owner who provides alcohol to an intoxicated patron does not exercise control over the conduct of the patron, in driving or walking, for example. In the absence of control, our jurisprudence is replete with holdings that, regardless of any foreseeability, a duty does not exist to the general public, with respect to harm caused by a third party, absent the existence of a special relationship between the person sued and the injured party or the person sued and the third party.

Our most recent pronouncement in which we did not define a duty to the general public with respect to harm caused by a third party was Barclay v. Briscoe, 427 Md. 270, 47 A.3d 560 (2012). In Barclay, we were asked to consider whether an employer was liable to an injured motorist when an employee, who had been working for 22 hours, was involved in a car accident on his way home. The duty to the public that was asserted before us was premised on the employer being liable for "failing to prevent the risk a fatigued employee posed to the motoring public." Id. at 292, 47 A.3d at 573. We noted that "there is no duty to control a third person's conduct so as to prevent personal harm to another, unless a `special relationship' exists either between the actor and the third person or between the actor and the person injured." Id. at 294, 47 A.3d at 574-75, quoting Ashburn, 306 Md. at 628, 510 A.2d at 1297. We expressly stated that, "`[t]he fact that the actor realizes or should realize that action on his part is necessary for another's aid or protection does not itself impose upon him a duty to take such action.'" Id. at 295, 47 A.3d at 575, quoting Lamb v. Hopkins, 303 Md. 236, 242, 492 A.2d 1297, 1300 (1985). We were explicit that there was no duty:

"[i]n the absence of either one of the kinds of special relations described in [Section 315 of the Restatement (Second) of Torts], the actor is not subject to liability if he fails, either intentionally or through inadvertence, to exercise his ability so to control the actions of third persons as to protect another from even the most serious harm. This is true although the actor realizes that he has the ability to control the conduct of a third person, and could do so with only the most trivial of efforts and without any inconvenience to himself."

Barclay, 427 Md. at 295, 47 A.3d at 575, quoting Lamb, 303 Md. at 242 n.4, 492 A.2d at 1300 n.4.

The Warrs and the dissent attempt to sidestep our jurisprudence by arguing that it is the conduct of the tavern, i.e. that a risk of injury was increased, that is at issue, rather than the conduct of the third party driver who actually causes the injuries. In so doing, they assert that the tavern is liable for increasing the risk that Mr. Eaton would drive while intoxicated, a concern about which we gave short shrift in Barclay.

In Barclay, the employer increased the risk that the employee would be fatigued by scheduling him for 22 hours of consecutive work, yet we held there was no duty because the employer could not control the employee's conduct after his shift and there was no relationship between the employer and the injured person. Barclay, premised on decades of our jurisprudence, is indistinguishable from the instant case and recognizes that risk assessment is not the nomenclature of duty to third parties; "special relationship" is. In Barclay, a unanimous opinion of this Court within the last year, we explicitly rejected that which the dissent embraces: "[A]ccording to Oregon case law, including its recognition of dram shop liability, the employer would still be `subject to the general duty to avoid conduct that unreasonably creates foreseeable risk of harm' to a third party. . . . As explained, supra, this is not the law in Maryland." Barclay, 427 Md. at 300, 47 A.3d at 578 (emphasis added) (citations omitted).^[12]

The foundation of our jurisprudence,^[13]Ashburn v. Anne Arundel County, 306 Md. 617, 510 A.2d 1078 (1986), involved a police officer who encountered an intoxicated driver in a parking lot. The driver was behind the wheel of his car with the engine running, but the car was parked. The officer directed the driver to park his car in the lot and not to drive home. After the officer left, however, the driver attempted to drive home and collided with a pedestrian, who suffered serious injuries. The pedestrian sued the officer, the police department, and Anne Arundel County, alleging that the officer was negligent in failing to detain the driver. The Circuit Court granted the defendants' motion to dismiss on the issue of public official immunity, which we affirmed. We went on to state, however, that even if immunity were not applicable, liability could not attach because the officer did not owe the plaintiff a duty:

This principle is apparent in the acceptance by most jurisdictions and by this Court of the general rule that there is no duty to control a third person's conduct so as to prevent personal harm to another, unless a "special relationship" exists either between the actor and the third person or between the actor and the person injured or between the actor and the person injured. Thus, we recognize the general rule, as do most courts, that absent a "special relationship" between police and victim, liability for failure to protect an individual citizen against injury caused by another citizen does not lie against police officers."

Id. at 628, 510 A.2d at 1083 (citations omitted).^[14]

We reaffirmed the principle that a special relationship must exist to support liability for harm caused by a third party, in the context of 911 operators, in Muthukumarana v. Montgomery County, 370 Md. 447, 805 A.2d 372 (2002). In Muthukumarana, we resolved two cases involving the issue of whether emergency dispatchers owed a duty to individuals who suffered harm after contact with 911. In the first case, a young woman was left, unconscious, in the woods by a group of her "friends," after they had been drinking. Fearing the consequences of being caught drinking underage, a member of the group called 911 to anonymously report the young woman's location. The dispatcher, however, relayed the incorrect information to patrol officers, who went to the wrong location, did not find the young woman, who died at the location provided to the dispatcher. In the companion case, a woman who had been assaulted by her husband called 911 to report the domestic violence. While she was on the phone with the operator, her husband returned to the room in which she and her children were and killed himself and the children.

In both cases, the plaintiffs alleged that the dispatch operators owed a duty to the injured third parties. We, however, disagreed, relying on Ashburn for the principle that, absent a special relationship, the dispatchers did not owe a duty to the members of the general public who call for emergency assistance. Muthukumarana, 370 Md. at 487-88, 805 A.2d at 396 ("`[a] proper plaintiff . . . is not without recourse. If he alleges sufficient facts to show that the defendant policeman created a `special relationship' with him upon which he relied, he may maintain his action in negligence.'"(quoting Ashburn, 306 Md. at 630-31, 510 A.2d at 1085)).

We also addressed the issue of duty to a third party in the context of a hunting party, in Remsburg v. Montgomery, 376 Md. 568, 831 A.2d 18 (2003). In Remsburg, the senior Mr. Remsburg organized a deer hunting party that included his son, James Remsburg, Jr., near property owned by the Montgomerys. The junior Remsburg, while waiting for the hunting season to officially begin in a few minutes time, heard trees rustling and fired his shotgun in the direction of the sound, without determining whether it was a deer. The slug from his weapon stuck Brian and Charles Montgomery, who had been part of another hunting party and were shielded from sight by trees, and caused severe injury. The Montgomerys sued the senior Remsburg, alleging that he, as the leader of the hunting party, owed Mr. Montgomery a duty to prevent harm caused by third parties. We, however relied on the general rule, articulated in Ashburn, that absent a special relationship, no duty is owed to members of the general public.

We also declined to impose a duty for harm caused by a third party in the context of product liability and "failure to warn" claims in Gourdine v. Crews, 405 Md. 722, 955 A.2d 769 (2008). In Gourdine, we considered whether a manufacturer of insulin medications should have been under a duty to warn the injured party, who was not taking the medication, of the risk that a patient who was taking the medication could suffer side effects and cause injury. We held that the manufacturer had no duty to the specific plaintiff, who had not alleged any special relationship, to warn her of the potential harm caused by a patient on its medication. We declined to adopt a policy that there was a duty to the general public regarding the harm caused by a third party, because such a concept would encompass an indeterminate number of individuals:

In the case sub judice, there was no direct connection between [the manufacturer]'s warnings, or the alleged lack thereof, and Mr. Gourdine's injury. In fact, there was no contact between [the manufacturer] and Mr. Gourdine whatsoever. To impose the requested duty from [the manufacturer] to Mr. Gourdine would expand traditional tort concepts beyond manageable bounds, because such duty could apply to all individuals who could have been affected by [the patient] after her ingestion of the drugs. Essentially, [the manufacturer] would owe a duty to the world, an indeterminate class of people, for which we have resisted the establishment of duties of care.

Id. at 750, 955 A.2d at 786 (internal quotations omitted). See also Patton v. USA Rugby Football, 381 Md. 627, 638-44, 851 A.2d 566, 570-76 (2004) (using the special relationship test to determine whether the rugby association could be liable for a referee's alleged negligence in failing to cancel a game, at which two players were struck by lightning).

The concept of special relationships, then, between the party sued and the injured party is the gravamen of our determinations of liability in third party duty cases. We have consistently recognized that, in the absence of control or a special relationship, there can be no duty to an injured person for harm caused by a third party. Our jurisprudence in this regard comports with the general understanding of duty as articulated in Dan B. Dobbs's The Law of Torts 474 (2000). He expressly noted that there is no "blanket duty" with respect to a tavern owner controlling the conduct of its intoxicated patrons:

Courts have said in many contemporary cases that in the absence of a special relationship, the defendant simply owes no duty to take affirmative action to protect the plaintiff from a third person. . . . Thus, if a duty of care is owed, taverns providing the alcohol that fuels criminal automobile driving, institutions releasing dangerous persons into the community, landlords leaving locks in disrepair, schools failing to protect students from attackers, and many others are now potentially subject to liability for harmful criminal behavior. But there is no blanket duty any more than there is blanket immunity.

In this case, the Warrs do not assert any relationship existed between themselves and Dogfish Head, and, therefore, there cannot be a duty owed to them by the tavern with respect to the harm caused by a third person.^[15] Simply put, we just do not recognize a duty; instead we adhere to the principle that "[h]uman beings, drunk or sober, are responsible for their own torts." State v. Hatfield, 197 Md. 249, 254, 78 A.2d 754, 756 (1951); see also Valentine, 353 Md. at 553, 727 A.2d at 951.

The Warrs also argue that various provisions of the Restatements (Second) and (Third) of Torts provide a foundation for dram shop liability. They primarily rely upon Section 283 of the Restatement (Second) of Torts,^[16] which states that, "[u]nless the actor is a child, the standard of conduct to which he must conform to avoid being negligent is that of a reasonable man under like circumstances," to support a duty owed to the general public. Section 283, however, refers to the standard of care, rather than the existence of a duty of care; the standard of care is one measure of liability once a duty of care has been established. In and of itself, the standard of care does not create a duty of care. See William L. Prosser, Law of Torts 205-07 (4th ed. 1971) (explaining that the existence of a duty is a separate question from the appropriate standard of care).

The Warrs next point to comment c of Section 302 of the Restatement (Second) of Torts, which we referenced in Reed v. Campagnolo, 332 Md. 226, 630 A.2d 1145 (1993), as illustrative of the duty owed by Dogfish Head to refuse to serve drunken patrons. Comment c provides, in relevant part according to the Warrs, that an actor "may be negligent in setting in motion a force the continuous operation of which, without the intervention of other forces or causes, results in harm to another." The Warrs' claim that this comment is evidence that there exists a duty at common law, however, is without merit, as comment c goes on to state that "[s]uch continuous operation of a force set in motion by the actor, or of a force which he fails to control, is commonly called `direct causation' by the courts, and very often the question is considered as if it were one of the mechanism of the causal sequence." Thus, the very citation used to support the Warr's argument eviscerates it, as Section 302 applies to causality, not duty. See Reed, 332 Md. at 240, 630 A.2d at 1152 (utilizing Section 302 to analyze causality, not duty of care).^[17]

Section 315 of the Restatement (Second) of Torts, however, relating to controlling the conduct of third parties, has been employed by numerous courts adopting dram shop liability:

There is no duty so to control the conduct of a third person as to prevent him from causing physical harm to another unless

(a) a special relation exists 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 exists between the actor and the other which gives to the other a right to protection.

Section 315 of the Restatement (Second) of Torts.^[18] In Ontiveros v. Borak, 667 P.2d 200 (Ariz. 1983) (en banc), for instance, the Supreme Court of Arizona reviewed duty in the context of dram shop liability, stating:

We believe that changing social conditions require recognition of a duty which extends to innocent third parties and which is based on the relation of the licensed supplier of liquor and his patron. We acknowledge that we deal here with defendant's obligation to help control the conduct of his patron in order to prevent that patron from injuring someone else.

Id. at 208. Relying on a Pennsylvania case, Jardine v. Upper Darby Lodge No. 1973, Inc., 198 A.2d 550 (Pa. 1964), and invoking Section 315 of the Restatement (Second) of Torts, the court likened providing alcohol to an already intoxicated patron to giving a gun to a "demented individual," and held that "those who furnish liquor have an obligation or `duty' to exercise care for the protection of others." Ontiveros, 667 P.2d at 511.

The Supreme Court of Texas also referenced Section 315 when it adopted dram shop liability in El Chico Corp. v. Poole, 732 S.W.2d 306 (Tex. 1987), modified by statute, Texas Alcoholic Beverage Code (Supp. 1993), Section 2.03, as recognized by Graft v. Beard, 858 S.W.2d 918, 919 (Tex. 1993). In that case, the Texas Supreme Court considered whether it should alter its common law to recognize a cause of action sounding in dram shop liability. The court concluded that public attitudes toward drinking and driving as well as the information surrounding intoxication had changed sufficiently to warrant adoption, judicially, of dram shop liability. With respect to duty, the court opined that the employees of a tavern were under "the general duty to exercise reasonable care to avoid foreseeable injury to others," id. at 311, and that the tavern employees had a duty to control the conduct — drinking — of patrons to protect the general public. Id. at 312. The court noted that it had held over a century before that a tavern that allowed a patron to drink himself to death was liable to the patron's estate and cited Section 315 of the Restatement (Second) of Torts as reflective of the common law duty to "take affirmative action to control or avoid increasing the danger from another's conduct which the actor has at least partially created" as a natural extension of the previously recognized liability. Id.

We, though, have rejected extending the rationale of Section 315 to the general public in Valentine v. On Target, Inc., 353 Md. 544, 553, 727 A.2d 947, 951 (1999), when we stated "[o]ne cannot be expected to owe a duty to the world at large to protect it against the actions of third parties, which is why the common law distinguishes different types of relationships when determining if a duty exists. The class of persons to whom a duty would be owed under these bare facts would encompass an indeterminate class of people, known or unknown." We recently reaffirmed rejection of expansive liability under Section 315 in Barclay v. Briscoe, 427 Md. 270, 47 A.3d 560 (2012). In Barclay, we were asked to consider whether an employer was liable to an injured third party when an employee, who had been working 22 straight hours, was involved in a car accident on his way home. We held that he could not and noted, with respect to the issue of duty, that

[i]n the absence of either one of the kinds of special relations described in [Section 315 of the Restatement (Second) of Torts], the actor is not subject to liability if he fails, either intentionally or through inadvertence, to exercise his ability so to control the actions of third persons as to protect another from even the most serious harm. This is true although the actor realizes that he has the ability to control the conduct of a third person, and could do so with only the most trivial of efforts and without any inconvenience to himself.

Id. at 295, 47 A.3d at 575, quoting Lamb v. Hopkins, 303 Md. 236, 242 n.4, 492 A.2d 1297, 1300 n.4 (1985). In reaching the conclusion that there was no duty, we relied, in part, on the reasoning of our brethren on the Court of Special Appeals in Kuykendall v. Top Notch Laminates, Inc., 70 Md. App. 244, 520 A.2d 1115 (1987), a case involving facts very similar to those now before us.

In Kuykendall, Evelyn Hargis was killed in a motor vehicle accident involving a drunk driver. Two employees of Top Notch Laminates were driving separate cars and were swerving back on forth on the roadway in "horse play." One of the employees swerved across the center line and struck the car driven by Ms. Hargis. The employees had been drinking at a company function for five-and-a-half hours before the accident and were highly intoxicated. Ms. Hargis's husband filed suit against Top Notch Laminates, alleging that the employees were obviously drunk and Top Notch Laminates was liable for negligently providing them alcohol. The Circuit Court granted Top Notch Laminates's motion to dismiss, and the Court of Special Appeals affirmed, stating, with respect to duty, "[t]he Court of Appeals has adopted the principle that there is no liability to a third person absent a `special relationship' with a clear right to control." Id. at 249, 520 A.2d at 1117. The Warrs do not allege a special relationship between themselves and the owners of the Dogfish Head in their complaint, although special relationships have informed much of our recent jurisprudence regarding duty. See Barclay v. Briscoe, 427 Md. 380, 47 A.3d 560 (2012), Gourdine v. Crews, 405 Md. 722, 955 A.2d 759 (2008), Remsburg v. Montgomery, 376 Md. 568, 831 A.2d 18 (2003).^[19] While other courts have embraced the concept of duty to control the conduct of its patrons under Section 315 of the Restatement (Second) of Torts, the Warrs disavow this rationale in favor of imposing a duty that Dogfish Head owed to the general public to refuse to serve intoxicated patrons.

The Warrs finally assert that the tavern owners owed a duty to refuse to serve an intoxicated patron, because there is a criminal statute prohibiting the sale of alcohol to visibly intoxicated persons. Section 12-108(a)(1) of Article 2B of the Maryland Annotated Code (1957, 2011 Repl. Vol.) states that a licensed vendor of alcohol may not sell alcohol:

(i) To a person under 21 years of age for the underage person's own use or for the use of any other person; or

(ii) To any person who, at the time of the sale, or delivery, is visibly under the influence of any alcoholic beverage.

In so doing, the Warrs rely on jurisprudence from sister courts that have extrapolated civil liability from criminal statutes.

The New Jersey Supreme Court, the first to judicially adopt dram shop liability, in. Rappaport v. Nichols, 156 A.2d 1 (N.J. 1959), for instance, addressed a situation in which a tavern had sold alcohol to a minor, and was sued because the minor had driven home from the bar, colliding with a car driven by Arthur Rappaport, who was killed. After summary judgment was granted in favor of the tavern, noting that the common law rule was that taverns were not liable for injuries caused to third parties by intoxicated patrons, id. at 4, the patron appealed. In reversing, the court briefly discussed the duty owed by the tavern operators to not sell alcohol to intoxicated patrons, imposed because tavern owners were statutorily prohibited from selling alcohol to minors and those "actually or apparently intoxicated," "for the protection of members of the general public" as part of the licensing requirements to sell alcohol. Id. at 8.

The Maine Supreme Judicial Court, having been called upon to decide whether the Maine Dram Shop Act provided an exclusive remedy or whether the plaintiffs could maintain a traditional negligence action in Klingerman v. Sol Corporation of Maine, 505 A.2d 474 (Me. 1986), acknowledged that there was a "safety" statute that imposed fines upon establishments that served visibly intoxicated persons. Based on this statute, the court evoked a duty: "[t]he statute achieves that objective by imposing a duty upon liquor licensees not to serve alcoholic beverages to visibly intoxicated patrons." Id. at 478.

In Massachusetts, its supreme court, in Adamian v. Three Sons, Inc., 233 N.E.2d 18 (Mass. 1968), also adopted dram shop liability based, in part, upon statutory enactments. In that case, the tavern owner operated a bar on a highway that had a large parking lot. A patron of the tavern consumed a large amount of alcohol and, after leaving, was involved in a car accident. In reviewing whether the plaintiff's complaint against the tavern should have been demurred, the court noted that the statute providing liability for tavern owners was repealed at the end of the Prohibition Era, but that "[t]he legislative policy, being clear, is not to be rendered futile of practical accomplishment because of the repeal at the end of the prohibition era of the Dram Shop Act which gave an express right of action to persons suffering damage due to a violation of the act." Id. at 19. The court then held that tavern owners could be held liable under common law negligence for the sale of liquor to "already intoxicated individuals," id. at 20. Although most of the court's analysis was focused on the issue of proximate cause, the court stated, with respect to duty, that the tavern owner had a "duty to members of the general public using the public highways," id. at 19, that was imposed by virtue of a 1933 criminal statute that stated,"[n]o alcoholic beverage shall be sold or delivered on any premises licensed under this chapter to an intoxicated person." Id.

In Wyoming, the Supreme Court of Wyoming was even more explicit in its recognition of a duty to the entire public when adopting dram shop liability, in McClellan v. Tottenhoff, 666 P.2d 408 (Wyo. 1983), modified by statute, 1985 Wyo. Sess. Laws ch 205, Section 1, as stated in Daniels v. Carpenter, 62 P.3d 355 (Wyo. 2003). Wyoming had earlier decided that there was no liability on the part of taverns for injuries caused by a drunken patron, Parsons v. Jow, 480 P.2d 396 (Wyo. 1971), noting that the basis for such a holding was that "[t]here may be sales without intoxication, but no intoxication without drinking." McClellan, 666 P.2d at 409 (internal quotation omitted). In overturning its decision in Parsons, the Supreme Court of Wyoming noted that there was a statute that provided for civil liability if a tavern served alcohol to either a minor or a habitual drunkard, but only if the tavern had been given written notice of such. McClellan, 666 P.2d at 410. The court then explicitly noted that it was importing a duty from a statute that made it illegal to sell or furnish alcohol "to a minor or intoxicated person in the area," Section 12-5-301 of Wyoming Statutes Annotated (1977), designed to prohibit intoxicated persons from being served. Id. at 413.

This Court historically, however, has not extrapolated civil liability from criminal statutes regulating the sale of alcohol, unlike some of our sister states. Indeed, an earlier version of Section 12-108, the current prohibition on selling alcohol to intoxicated persons, was in effect at the time Felder was decided. In that case, we explicitly rejected the notion that the existence of a criminal statute was sufficient to establish civil liability, because the Legislature had not enacted laws to impose civil liability:

At that time the public policy of the State, declared by the legislature in what is now § 118 (a) of Article 2B, imposed only criminal sanctions upon a licensed vendor of alcoholic beverages who sold or furnished intoxicants to minors or persons visibly under the influence of alcohol. The absence of any statute in Maryland creating a civil cause of action in such circumstances prompted the Court in Hatfield to conclude that the legislature did not intend to impose civil liability upon alcoholic beverage vendors for the tortious acts of their intoxicated customers. The state of the statutory law has remained unchanged since Hatfield was decided thirty years ago.

Felder, 292 Md. at 183-84, 438 A.2d at 499.^[20]

Where we have imposed civil liability on the basis of a criminal statute, we have required a party to show: "(a) the violation of a statute or ordinance designed to protect a specific class of persons which includes the plaintiff, and (b) that the violation proximately caused the injury complained of." Brook v. Lewin Realty III, Inc., 378 Md. 70, 79, 835 A.2d 616, 621 (2003); see also Wietzke v. Chesapeake Conference Association, 421 Md. 355, 388, 26 A.3d 931, 951 (2011); Remsburg v. Montgomery, 376 Md. 568, 584, 831 A.2d 18, 37 (2003). The statutes regulating the sale of alcohol and prohibiting its provision to those visibly intoxicated were enacted "for the protection, health, welfare and safety of the people of this State." Maryland Code (1957, 2011 Repl. Vol.), Article 2B, Section 1-101(a)(3). Our jurisprudence establishes that this general class of individuals is not sufficient to create a tort duty because, "we have always required the statute or ordinance allegedly violated to set forth mandatory acts that are clearly for the protection of a particular class of persons and not merely for the public as a whole." Wietzke, 421 Md. at 388, 26 A.3d at 951 (internal quotations omitted) (emphasis in original); see also Ashburn v. Anne Arundel County, 306 Md. 617, 635, 510 A.2d 1078, 1087 (1986) ("In order to impose a special relationship between police and victim, and thereby to create a duty in tort, however, a statute must `set forth mandatory acts clearly for the protection of a particular class of persons rather than the public as a whole.'"(emphasis in original) (citations omitted)). Thus, the existence of criminal statutes prohibiting the sale of alcohol to intoxicated individuals is not sufficient to support liability in the instant case, because the statute does not identify a particular class of protectees.

As a result, in holding that Dogfish Head did not owe a duty to the Warrs, as members of the general public, we also value the words of our colleagues on the Supreme Court of Delaware who, in Shea v. Matassa, 918 A.2d 1090, 1094 (Del. 2007), quoting McCall v. Villa Pizza, Inc., 636 A.2d 912, 913 (Del. 1994), stated: "The essential rationale underlying this line of cases is that the determination of whether to impose liability on tavern owners for injuries caused by intoxicated patrons involves significant public policy considerations and is best left to the General Assembly." The Legislature, as the Delaware court noted, "is in a far better position that this Court to gather the empirical data and to make the fact finding necessary to determine what the public policy should be. . . ." Id., quoting Wright v. Moffitt, 437 A.2d 554 (1981). We agree.

JUDGMENT OF THE CIRCUIT COURT FOR M ONTGOM ERY COUNTY AFFIRMED. COSTS TO BE PAID BY PETITIONERS.

ADKINS, J., dissenting.

On August 21, 2008, Michael Eaton entered JMGM's bar where, over a six-hour period, he was served at least twenty-one alcoholic drinks, to the point of becoming violent and aggressive. Eaton then left the bar, got in his car, drove down the road at eighty-eight to ninety-eight miles per hour, collided with another car, and killed an innocent ten-year-old child.

Unfortunately, the facts of this case are not unusual or extreme. In Maryland, over 24,000 people are arrested every year for driving under the influence of alcohol. See Task Force to Combat Driving Under the Influence of Drugs and Alcohol, Findings and Recommendations 1-2 (2008). These drunk drivers come largely from bars and commercial vendors—just like the establishment owned by JMGM. See Nat'l Highway Traffic Safety Admin., Preventing Over-consumption of Alcohol — Sales to the Intoxicated and "Happy Hour" (Drink Special) Laws 2 (2005); A. James McKnight & Fredrick M. Streff, The Effect of Enforcement Upon Service of Alcohol to Intoxicated Patrons of Bars and Restaurants, 26 Accid. Anal. & Prev. 79, 79 (1994). They then cause an average of 4,899 accidents every year in Maryland. See Task Force at 1-2. And sadly, the result is often no different than what happened in this case: "an average of 220 people died annually as a result of impaired-driving-related crashes on Maryland roads. . . . This equates to 18 deaths a month or a death every 40 hours. . . ." Id. (emphasis added).

Against the backdrop of this crisis, this case presented the opportunity to impose dram shop liability on commercial vendors of alcohol^[21] that continue to serve patrons after they are "visibly under the influence." Scientific studies have consistently found strong evidence showing that dram shop liability "reduce[s] motor vehicle crash deaths in general and alcohol-related crash deaths in particular." Veda Rammohan, et al., Effects of Dram Shop Liability and Enhanced Overservice Law Enforcement Initiatives on Excessive Alcohol Consumption and Related Harms, 41 Am. J. Prev. Med. 334, 340 (2011).^[22] The National Highway Traffic Safety Administration agrees with this conclusion, explaining that "[s]tudies indicate that enforcement and prosecution of dram shop laws (and resulting case decisions) are associated with a substantial reduction in alcohol-related harm." Nat'l Highway Traffic Safety Admin., at 5. Specifically, several studies "that assessed the effects of dram shop liability on alcohol-related motor vehicle fatalities found a median reduction of 6.4% (range of values 3.7% to 11.3% reduction)." Rammohan, at 339. With 220 deaths caused by alcohol-related crashes each year in Maryland, a 6.4% reduction would save 14 lives every year.

In 1981, the last time this Court took up the issue of dram shop liability, we stated that "for now" we would wait and permit the legislature to address this problem area. See Felder v. Butler, 292 Md. 174, 184, 438 A.2d 494, 499 (1981). After thirty-two years of inaction by the General Assembly, I urge that we no longer sit idly by, and refuse to help, as people continue to die at such a rate. See, e.g., Shannon v. Wilson, 947 S.W.2d 349, 352 (Ark. 1997) ("Despite this Court's preference for legislative action, there has been no action directly addressing this troublesome question [of dram shop liability]; so, we will address this issue now."); McClellan v. Tottenhoff, 666 P.2d 408, 415 (Wyo. 1983) ("We do not choose to stand by and wring our hands at the unfairness which we ourselves have created."). I submit that we can save lives by recognizing dram shop liability and do so based on the well-established principles of our common law.

The Majority, in holding that JMGM does not owe a duty to the Warrs, is quick to state that it "do[es] not write on a blank slate." Maj. Slip Op. at 6. Yet, the Majority immediately abandons the reasoning of this Court's precedent, which was based on proximate cause, and instead, creates its own duty-of-care analysis. As I will explain, not only does the Majority disregard our precedent, but its new analysis is inconsistent with our established duty-of-care jurisprudence.

Common Law Rule Regarding Dram Shop Liability

The concept of "dram shop liability" is a legal term of art used to refer to the "[c]ivil liability of a commercial seller of alcoholic beverages for personal injury caused by an intoxicated customer." Black's Law Dictionary 568 (Bryan A. Garner et al. eds., 9th ed. 2009). Dram shop liability did not exist under the traditional common law rule. This was because the rule "was predicated on the theory that the drinking rather than the serving of alcohol was the proximate cause of intoxication." Frank A. Sloan, et al., Drinkers, Drivers, And Bartenders: Balancing Private Choices and Public Accountability 118 (2000). Under this rationale, "even if a vendor breached a duty to those injured by an intoxicated person, the vendor was not legally liable because he was not considered the proximate cause of the injuries." Id. Accordingly, the sole rationale supporting the traditional common law rule was that "the chain of legal causation between the negligent serving of an alcoholic beverage and the injury was severed by the customer's voluntary act in drinking the alcohol." Id.; see also Ronald S. Beitman, Practitioner's Guide to Liquor Liability Litigation 3 (1987).

This traditional common law rule was recognized in Maryland in the case of State v. Hatfield, 197 Md. 249, 78 A.2d 754 (1951). In that case, a bar served alcohol to a minor and did so even after he had become intoxicated. Id. at 251, 78 A.2d at 755. The minor then got back into his car and drove away from the bar, colliding with another car and killing the other driver. Id. In holding that the bar was not liable, the Court explained that "the common law knows no right of action against a seller of intoxicating liquors, as such, for `causing' intoxication of the person whose negligent or wilful wrong has caused injury." Id. at 254, 78 A.2d at 756 (emphasis added). Explaining further, the Court stated: "[t]he law (apart from statute) recognizes no relation of proximate cause between a sale of liquor and a tort committed by a buyer who has drunk the liquor." Id. (emphasis added).

What is clear, then, is that when this Court refused to recognize dram shop liability for the first time, it did so based on the traditional common law understanding that the selling of alcohol was not a proximate cause of the injury suffered by the third person. Indeed, in the entire Hatfield opinion, the word "duty" never once appears. Hatfield, then, provides no support for the Majority's "no duty" holding.

Following Hatfield, this Court has addressed dram shop liability on only one other occasion—in Felder v. Butler, 292 Md. 174, 438 A.2d 494 (1981)—but broke no new ground and followed, in lockstep, the decision in Hatfield. While the Felder Court recognized a "new trend of cases" that found a duty on the part of the bar as to an injured third person, it did not discuss duty of care. Id. at 178, 438 A.2d at 496. Instead, the Court, with some apparent reluctance, followed Hatfield and based its holding on older proximate cause decisions:

Therefore, since the legislature has not yet created dram shop liability by statute, we decline, for now, to join the new trend of cases [in this area]. Nevertheless, the legislature may wish to consider reexamining the Hatfield rule to determine if the public policy of the State continues to favor a rule which, in any and all circumstances, precludes consideration of whether the sale of intoxicating liquor to an inebriated tavern patron may be a proximate cause of subsequent injury caused to others by the intoxicated customer. (Emphasis added).

Id. at 184, 438 A.2d at 499. These two, our only cases on dram shop liability, demonstrate that this Court's refusal to recognize dram shop liability has been based solely on the old common law rule that the selling of alcohol was not a proximate cause of injuries resulting from the subsequent torts of an intoxicated customer. Therefore, the Majority's opinion, resting on the absence of any duty of care to a third person injured by an intoxicated customer, is not based on Maryland precedent; it is an alternative approach that has never been taken by this Court before.

I apply our well-established principles of common law negligence to this case and explain how the Majority leads our duty-of-care jurisprudence astray.

Duty of Care

This Court has adopted the often quoted passage from Prosser and Keeton's definition of the term "duty" as "an obligation, to which the law will give recognition and effect, to conform to a particular standard of conduct toward another." See, e.g., Remsburg v. Montgomery, 376 Md. 568, 582, 831 A.2d 18, 26 (2003) (quotation marks omitted) (quoting W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 53, at 356 (5th ed. 1984)). Under this definition, however, "[i]n the determination of the existence of a duty, there runs through much of the law a distinction between action and inaction." Keeton, § 56, at 373. As Prosser and Keeton explain: "there arose very early a difference, still deeply rooted in the law of negligence, between `misfeasance' and `nonfeasance'—that is to say, between active misconduct working positive injury to others and passive inaction or a failure to take steps to protect them from harm." Id. In explaining this distinction, Prosser and Keeton state: "by `misfeasance' the defendant has created a new risk of harm to the plaintiff, while by `nonfeasance' he has at least made his situation no worse, and has merely failed to benefit him by interfering in his affairs." Id.

As a result, the existence of a duty depends on whether the case involves active risk creation or passive failure to act:

Liability for `misfeasance,' then, may extend to any person to whom harm may reasonably be anticipated as a result of the defendant's conduct, or perhaps even beyond; while for `nonfeasance' it is necessary to find some definite relation between the parties, of such a character that social policy justifies the imposition of a duty to act. (Footnotes omitted).

Id. § 56, at 374.

Under this definition that Maryland adopted from Prosser and Keeton, there are two overarching duty rules. First, when a person chooses to act, he owes a duty to exercise reasonable care so as not to expose others to unreasonable risks of harm. See, e.g., B.N. v. K.K., 312 Md. 135, 141, 538 A.2d 1175, 1178 (1988) ("The notion of duty is founded on the responsibility each of us bears to exercise due care to avoid unreasonable risks of harm to others."(citations and quotation marks omitted)); Moran v. Faberge, Inc., 273 Md. 538, 543, 332 A.2d 11, 15 (1975) ("To begin with we note that a manufacturer's duty to produce a safe product, with appropriate warnings and instructions when necessary, is no different from the responsibility each of us bears to exercise due care to avoid unreasonable risks of harm to others."). Second, when a person is merely a passive observant, he ordinarily does not owe a duty to affirmatively aid or rescue another to prevent them from suffering harm, absent the creation of a special relationship that would justify imposing a duty to take affirmative action for the benefit of another. See, e.g., Barclay v. Briscoe, 427 Md. 270, 294, 47 A.3d 560, 574-75 (2012) ("[T]here is no duty to control a third person's conduct so as to prevent personal harm to another, unless a special relationship exists." (citation and quotation marks omitted)). Or, as Prosser and Keeton explained: "If there is no duty to go to the assistance of a person in difficulty or peril, there is at least a duty to avoid any affirmative acts which make his situation worse." Keeton, § 56, at 378 (emphasis added).

Bar's Conduct Affirmatively Created Risk of Harm

Before we decide whether the bar could owe a duty to the Warrs, we must determine which of these duty rules will govern this case. To do this, we examine whether the bar's conduct was active or passive. See Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 37 cmt c. (2012) ("[T]he factfinder would have to determine whether an actor's conduct created a risk of harm as a predicate for determining whether a duty exists under [the exercise of reasonable care] or whether a duty, if any, must be found in [an exception to the no-duty rule]."). If the bar's conduct was merely passive, then the bar will not be subject to any duty to the Warrs, unless the Warrs can prove that a special relationship or other affirmative duty was created. If the bar's conduct actively created a risk of harm, then the duty potentially imposed on the bar will be the ordinary duty to exercise reasonable care. In that case, the rule excluding one from a duty to control a third person's conduct does not apply. Thus, the bar's liability "may extend to any person to whom harm may reasonably be anticipated as a result of the defendant's conduct." Keeton, § 56, at 374.

I use the familiar terms "active" and "passive" conduct at the risk of being overly simplistic. More precisely, the inquiry is not whether the defendant performed an act or failed to perform an act.^[23] Rather, the inquiry is whether the defendant's conduct created a risk of harm.^[24]See Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 37 cmt. c. (2012) ("The proper question is not whether an actor's failure to exercise reasonable care entails the commission or omission of a specific act. Instead, it is whether the actor's entire conduct created a risk of harm.").^[25] The defendant's conduct will be found to create a risk of harm "when the actor's conduct or course of conduct results in greater risk to another than the other would have faced absent the conduct." Id. § 7 cmt. o. This "greater risk" includes "risk by exposing another to the improper conduct of third parties." Id.

In this case, Eaton entered JMGM's bar at approximately 5 P.M. on August 21, 2008. For the next six hours, the bar allegedly served him at least twenty-one alcoholic beverages to the point of Eaton becoming violent and aggressive. The bar, thus, took a non-dangerous Eaton and, by serving him drink after drink after drink, helped to transform him into a dangerous Eaton. Based on these facts, the jury could reasonably conclude that the bar's conduct, in over-serving Eaton, actively created a risk of harm to the Warrs and others, by exposing the Warrs to a greater risk than they would have faced absent the bar's conduct.

Because the bar's alleged conduct may have created a greater risk of harm, it falls into the category of active conduct and constitutes misfeasance, not nonfeasance. As a result, the bar cannot avoid liability "to any person to whom harm may reasonably be anticipated as a result of the [the bar's] conduct." Keeton, § 56, at 374. As this Court has often explained:

The notion of duty is founded on the responsibility each of us bears to exercise due care to avoid unreasonable risks of harm to others. When a reasonable person knows or should have known that certain types of conduct constitute an unreasonable risk of harm to another, he or she has the duty to refrain from that conduct. (Emphasis added).

B.N., 312 Md. at 141, 538 A.2d at 1178 (emphasis added) (citations and quotation marks omitted); see also Balt. Gas & Elec. Co. v. Flippo, 348 Md. 680, 700, 705 A.2d 1144, 1154 (1998); Faya v. Almaraz, 329 Md. 435, 448, 620 A.2d 327, 333 (1993); Moran, 273 Md. at 543, 332 A.2d at 15; McCance v. Lindau, 63 Md. App. 504, 514, 492 A.2d 1352, 1358 (1985); Ghassemieh v. Schafer, 52 Md. App. 31, 40, 447 A.2d 84, 88-89 (1982).

Majority Applies Wrong Standard

The Majority ignores this ordinary duty "to exercise due care to avoid unreasonable risks of harm to others," by relying on precedent which states: "the general rule followed in most jurisdictions, including Maryland, is that `there is no duty to control a third person's conduct so as to prevent personal harm to another, unless a special relationship exists either between the actor and the third person or between the actor and the person injured.'" Barclay, 427 Md. at 294, 47 A.3d at 574-75 (footnote omitted) (quoting Ashburn v. Anne Arundel Cnty., 306 Md. 617, 628, 510 A.2d 1078, 1083 (1986)); see Maj. Slip Op. at 12-20.

By applying this rule in the context of dram shop liability, the Majority shows a fundamental misunderstanding of the concept of duty of care, and consequently, applies the wrong standard in this case. As I explained, this "special relationship" standard comes into play only when the actor's conduct is passive. The Majority fails to recognize this point, and as a result, erroneously requires the "special relationship" even when the conduct actively creates a risk of harm to a third party.

Active vs. Passive Distinction in the Restatement

Maryland has adopted the rule, on which the Majority relies, that—absent a special relationship—an individual has no duty to prevent a third person from causing harm to another, directly from Section 315 of the Second Restatement of Torts. Section 315 provides:

There is no duty so to control the conduct of a third person as to prevent him from causing physical harm to another unless

(a) a special relation exists 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 exists between the actor and the other which gives to the other a right to protection.

Restatement (Second) of Torts § 315 (1965); see Barclay, 427 Md. at 294-97, 47 A.3d at 574-76.

Section 315 is found within the "Duties of Affirmative Action" topic of the Second Restatement. As this Court has repeatedly recognized, Section 315 "is a special application of the general rule set forth in § 314," which governs more broadly the duty to take affirmative action for the protection of others.^[26]See, e.g., Lamb v. Hopkins, 303 Md. 236, 242, 492 A.2d 1297, 1300 (1985). These sections discuss an individual's affirmative duties and provide the general starting point that an individual ordinarily owes no duty to protect another or to control the conduct of a third person unless certain exceptions are met. These sections may fairly be characterized as the "no duty to aid or rescue" provisions of the Restatement.

As the commentary to the Second Restatement makes clear, these rules apply only when an individual passively fails to aid or rescue another and do not apply when the individual actively places another in peril:

The rule stated in this Section applies only where the peril in which the actor knows that the other is placed is not due to any active force which is under the actor's control. If a force is within the actor's control, his failure to control it is treated as though he were actively directing it and not as a breach of duty to take affirmative steps to prevent its continuance (see § 302, Comments a and c). (Emphasis added).

Restatement (Second) of Torts § 314 cmt. d (1965). To demonstrate this distinction between the control of active force and mere passive observance, the Second Restatement provides us with the following illustration:

A, a trespasser in the freight yard of the B Railroad Company, falls in the path of a slowly moving train. The conductor of the train sees A, and by signaling the engineer could readily stop the train in time to prevent its running over A, but does not do so. While a bystander would not be liable to A for refusing to give such a signal, the B Railroad is subject to liability for permitting the train to continue in motion with knowledge of A's peril.

Id. § 314 cmt. d, illus. 3. In other words, the rules in Section 314 and 315 would protect the bystander, so that the bystander does not owe a duty of care to A, because the bystander was merely passive and did not actively perform an act of force contributing to the harm suffered by A. The rules in Section 314 and 315 would not, however, apply to the B Railroad because the Railroad engaged in an act of force by driving the train, had control over that force, had knowledge of A's peril, but failed to control that force by not stopping the train. Thus, the Railroad would owe the ordinary duty of care to A.

To further demonstrate the distinction between the situations when Sections 314 and 315 apply and when they do not, the Second Restatement directs our attention to the commentary following Section 302.^[27] That commentary explains that the ordinary duty of care will apply when an individual engages in active risk creation, as opposed to passive failure to act:

In general, anyone who does an affirmative act is under a duty to others to exercise the care of a reasonable man to protect them against an unreasonable risk of harm to them arising out of the act. The duties of one who merely omits to act are more restricted, and in general are confined to situations where there is a special relation between the actor and the other which gives rise to the duty.

Id. § 302 cmt. a. The commentary then continues:

The actor may be negligent in setting in motion a force the continuous operation of which, without the intervention of other forces or causes, results in harm to the other. He may likewise be negligent in failing to control a force already in operation from other causes, or to prevent harm to another resulting from it.

Id. § 302 cmt. c.

What is clear then—after reading Sections 314 and 315, the accompanying commentary and illustrations, and contrasting it to Section 302—is that the "special relationship" rule in Section 315, which we adopted as Maryland's common law, simply does not apply in this case. Instead, the Restatement clearly contemplates that a defendant (the bar), who creates a risk of harm is under the ordinary duty to exercise reasonable care and may be negligent if it (the bar) actively creates an unreasonable risk that a third person (Eaton) will do harm to another (the Warrs). Thus, Section 315 of the Second Restatement, on which the Majority bases its holding, does not actually support the Majority's opinion.

Further undermining the Majority's opinion is the Restatement (Third) of Torts: Liability for Physical and Emotional Harm, which confirms my understanding of the rules found in Section 314 and 315, and leaves no doubt that these sections do not apply in this case. Sections 314 through 320 of the Second Restatement, which we adopted as part of Maryland's common law, are now found at Sections 37 through 44 of the Third Restatement.^[28] Section 37, which takes the place of both Section 314 and 315, explains that the rule applies only in the context of a passive failure to act and does not protect an individual who engages in active risk creation:

An actor whose conduct has not created a risk of physical or emotional harm to another has no duty of care to the other unless a court determines that one of the affirmative duties provided in §§ 38-44 is applicable. (Emphasis added).

Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 37 (2012). In explaining the history of Section 37, the commentary to the Third Restatement explicitly confirms my reading of Section 314 and 315 above:

a. History. Section 314 of the Restatement Second of Torts provided that knowledge that another was at risk and the ability to prevent or ameliorate the risk are insufficient to impose a duty. However, the distinction between active risk creation and passive failure to act in the face of a danger that was not the doing of the actor was relegated to commentary. Section 315 of the Second Restatement stated a more specific rule, subsumed within § 314, that an actor owed no duty to control third parties, subject to stated exceptions. Section 315, however, neglected to clarify that its no-duty rule was conditioned on the actor having played no role in facilitating the third party's conduct, such as by providing a dangerous weapon to an insane individual. See Comment d. This Section replaces both § 314 and § 315 of the Second Restatement. (Emphasis added).

Id. § 37 cmt. a.

Directly refuting the Majority, the Third Restatement explicitly warns against the holding which the Majority now imposes:

Section 315 of the Restatement Second of Torts contributed to frequent judicial pronouncements, contrary to the explanation above, that absent a special relationship an actor owes no duty to control third parties. Section 315, however, must be understood to address only an affirmative duty to control third parties. It did not address the ordinary duty of reasonable care with regard to conduct that might provide an occasion for a third party to cause harm. The Restatement Second of Torts § 302B, Comment e, provides for a duty of care when "the actor's own affirmative act has created or exposed the other to a recognizable high degree of risk of harm through such [third-party] misconduct." Section 449 of the Second Restatement also contemplated liability, without regard to any special relationship, for acts that are negligent because of the risk of the third party's conduct. (Emphasis added).

Id. § 37 cmt. d.

The Third Restatement establishes that an individual who engages in active risk creation is subject to the ordinary duty of reasonable care:

§ 7. Duty

(a) An actor ordinarily has a duty to exercise reasonable care when the actor's conduct creates a risk of physical harm.

Id. § 7. Under this duty rule, "[w]hen an actor's conduct creates a risk of harm, this Section requires that the actor exercise reasonable care in connection with that conduct." Id. § 7 cmt. k. To determine when an actor's conduct creates a risk of harm, the Third Restatement explains:

o. Conduct creating risk. An actor's conduct creates a risk when the actor's conduct or course of conduct results in greater risk to another than the other would have faced absent the conduct. Conduct may create risk by exposing another to natural hazards, as, for example, when a pilot of an airplane flies the plane into an area of thunderstorms. Conduct may also create risk by exposing another to the improper conduct of third parties.

Id. § 7 cmt. o. The commentary also explains how the duty rule of Section 7 relates to the rule contained in Section 37:

l. Relationship with affirmative duties to act. The general duty rule contained in this Section is conditioned on the actor's having engaged in conduct that creates a risk of physical harm. Section 37 states the obverse of this rule: In the absence of conduct creating a risk of harm to others, an actor ordinarily has no duty of care to another. Section 37 is contained in Chapter 7, which addresses the no-duty-to-rescue rule, along with its exceptions.

Id. § 7 cmt. l.

Further showing this distinction, the Third Restatement provides that conduct can be negligent based on the prospect of improper conduct by a third party: "The conduct of a defendant can lack reasonable care insofar as it foreseeably combines with or permits the improper conduct of the plaintiff or a third party." Id. § 19. In this context, the Restatement explains the distinction between active risk creation and passive failure to act by stating:

These cases, in which the defendant's conduct creates or increases the possibility of harm caused by third-party misconduct, can be contrasted to cases in which the defendant merely takes no action to protect the plaintiff against the possibility of third-party misconduct. Because, as a general rule, the law does not impose an obligation to protect or rescue, defendants are liable in such cases only if they are subject to some affirmative duty providing an exception to the general rule.

Id. § 19 cmt. e. As way of illustration, the Restatement provides:

a bystander owes no duty of care to an individual being assaulted on a public street. On the other hand, an actor's conduct may increase the natural or third-party risk—such as by inciting a swimmer to swim despite a dangerous riptide or by providing a weapon or alcohol to an assaulter. . . . In these cases, the actor's conduct creates risks of its own and, therefore, is governed by the ordinary duty of reasonable care contained in § 7. Section 19 specifically addresses the duty of reasonable care when an actor's conduct increases the risk of third-party conduct that causes harm. (Emphasis added).

Id. § 37 cmt. d.

The Restatements, both the Second and the Third, clearly envision that the rule of Section 315, on which the Majority relies, applies only when the defendant's conduct constitutes a passive failure to aid or recuse another. And, it has no applicability when the defendant's own conduct creates a risk of harm to another.

Active vs. Passive Distinction in Maryland Case Law

Until the Majority's opinion today, our case law had been perfectly in line with this explanation. Until today, this Court had applied the "special relationship" rule of Section 315 only to cases in which the defendant was passive and did not contribute to the harm suffered by the plaintiff.^[29]

The first case to discuss Section 315 was Scott v. Watson, 278 Md. 160, 359 A.2d 548 (1976). At issue in Scott was whether a landlord owes a duty of care to his tenants to protect them from the criminal acts of a third party that occur in the common areas under the landlord's control. Id. at 161-62, 359 A.2d at 550. We declined to apply Section 315 to this case even though it involved the conduct of a third person. Instead, we held that "[t]he duty of a landlord is to exercise reasonable care for the tenant's safety, and traditional principles of negligence . . . will determine whether the landlord is liable for an injury resulting from a breach of this duty, including an injury caused by criminal acts of third parties." Id. at 167, 359 A.2d at 553. As a result, "[i]f the landlord knows, or should know, of criminal activity against persons or property in common areas, he then has a duty to take reasonable measures, in view of the existing circumstances, to eliminate the conditions contributing to the criminal activity." Id. at 169, 359 A.2d at 554.

The next case to consider Section 315 was Lamb v. Hopkins, in which we were asked to decide "whether a probation officer who fails to report a probationer's violation to the sentencing court owes any duty to an individual injured by the negligence of the probationer." 303 Md. 236, 238, 492 A.2d 1297, 1298 (1985). The Court adopted Section 315 as the general rule, under which "absent a special relation between the actor and third person, the actor has no duty to control the conduct of a third person and therefore no liability attaches for the failure to control that person."^[30]Id. at 242, 245, 492 A.2d at 1300, 1302. The Court then applied Section 315 and held that no special relationship was formed. Id. at 248-49, 492 A.2d at 1301, 1304. Thus, the probation officer did not owe a duty to the third person because, at all times, he was passive—i.e. he merely failed to report the probationer's violations—and did not actively contribute to the harm suffered by the plaintiff. In such a situation, the rule of Section 315 properly applies.

The Court addressed Section 315 again in Valentine v. On Target, Inc., 353 Md. 544, 727 A.2d 947 (1999). In that case, we considered "what, if any, tort duty a gun store owner owes to third parties to exercise reasonable care in the display and sale of handguns to prevent the theft and the illegal use of the handguns by others against third parties." Id. at 546, 727 A.2d at 948. The Court recognized that the rule of Section 315 applies only "with respect to a duty to aid" type case. Id. at 552, 727 A.2d at 951 (citation and quotation marks omitted). Conversely, the Court also recognized that the ordinary duty to exercise reasonable care applies when the defendant actively creates the risk or opportunity for harm. Id. at 552-53, 727 A.2d at 951. Because the store owner's conduct was merely passive,^[31] we explained that Section 315—and not the ordinary duty of reasonable care—applied in that case.^[32]Id. at 556, 727 A.2d at 952-53.

Most recently, just last year, the Court addressed Section 315 in Barclay v. Briscoe, 427 Md. 270, 47 A.3d 560 (2012).^[33] The issue in Barclay was whether "employers owe a duty to the motoring public to ensure that an employee not drive home when an extended work schedule caused sleep deprivation." Id. at 279, 47 A.3d at 565. In that case, under a collective bargaining agreement, "a longshoreman could accept or decline a shift, and those who accepted could stay on for as many consecutive shifts as desired." Id. at 275, 47 A.3d at 562-63. A longshoreman accepted a work shift and chose to work for twenty-two hours. Id. at 274-75, 47 A.3d at 562-63. After he left work that day, he fell asleep at the wheel and caused an accident, killing himself and severely injuring another motorist. Id.

The Court applied the rule from Section 315, and held that there was no special relationship between the employer and the injured party. Id. at 295, 47 A.3d at 575. This holding reflected the Court's awareness of the distinction between active and passive risk creation:

Thus, we conclude, in light of Maryland precedent, as augmented by persuasive authority, that an affirmative act of control by the employer following and prompted by the employee's incapacity must be present in order for a duty to arise, and we decline "to create a duty where an employer's only affirmative act of control preceded the employee's shift and incapacity and amounted only to establishing work conditions that may have caused or contributed to the accident." (Emphasis in bold added) (citation omitted).

Id. at 306, 47 A.2d at 582. Indeed, the Court explained this holding by looking to a similar Texas case: "Rather, the [Texas Supreme Court] said that, `simply knowing that an employee is intoxicated or incapacitated is not enough for a duty to arise. Rather, the employer must affirmatively exercise control of the incapacitated employee.'" Id. at 305, 47 A.3d at 581 (emphasis in original) (quoting Nabors Drilling, U.S.A., Inc. v. Escoto, 288 S.W.3d 401, 407 (Tex. 2009)).

With this, I agree. No duty will lie if an employer simply knows that an employee is tired, or if a bar simply knows that a patron is drunk. The alleged duty does not attach until the bar serves an alcoholic drink following the visible intoxication. In this case, the Warrs did not allege that the bar was negligent for simply knowing that Eaton was drunk and letting him leave. The Warrs alleged that the bar was negligent because—after facilitating Eaton to become visibly intoxicated—it continued to serve him alcohol nonetheless. Thus, unlike the employer in Barclay, the bar affirmatively acted following the incapacity. This differs from Barclay in which the employer "did nothing to affirmatively control whether [the employee] drove home in a fatigued state."^[34]Id. at 306, 47 A.3d at 582.

The Court in Barclay also recognized that its holding reflected the absence of any public policy on the issue of fatigued employees in Maryland and declined to "use this case to fashion some type of judicially-imposed maximum working hours standard across all industries." Id. at 307, 47 A.3d at 582. Unlike the serving of alcohol to visibly intoxicated persons, Maryland has no law or regulation forbidding an employer from allowing an employee to work multiple shifts. As I discuss later, however, criminal statutes forbid a bar from serving alcohol to a visibly intoxicated individual and forbid an intoxicated individual from driving.

What can be summarized from the case law discussing Section 315 is that, until the Majority's opinion today, Maryland's precedent had been consistent with the explanation of Section 315 of the Second Restatement set out above. That is, the rule of Section 315, which requires a special relationship, applies only when the defendant's conduct is passive, i.e. he fails to act. Before today, this Court has never applied Section 315 to relieve a defendant from liability when the defendant's own affirmative acts increased the risk of foreseeable harm to another.

Active vs. Passive Distinction in the Major Tort Treatises

As I have demonstrated, contrary to the assertion of the Majority, Section 315, as it was contemplated by the Restatement and implemented by this Court, does not apply to cases in which the defendant's (the bar's) own affirmative conduct creates a risk of harm to another (the Warrs).^[35] Moreover, not only do the Restatement and this Court's case law fail to support the Majority's opinion, but the Majority gains no succor in any of the major treatises on this topic. As I have already explained, Prosser and Keeton clearly envision that the ordinary duty of care applies to individuals who actively create a risk of harm to others, and the rule of Section 315 applies to individuals who are merely passive observants, playing no role in the harm suffered by the plaintiff. This distinction between the active creation of risk and mere passive observance is also recognized by the major tort treatises.

Dobbs, for example, in his treatise The Law of Torts,^[36] begins his section on Duty—entitled "The general rules of duty"—by setting forth the fundamental principles on which I rely:

Where the defendant does not create or continue a risk of harm, the general rule, subject to certain qualifications, is that he does not owe an affirmative duty to protect, aid, or rescue the plaintiff.

On the other hand, where the defendant by some action on his part, creates, maintains, or continues a risk of physical harm, the general standard or duty is the duty of reasonable care, that is, the duty to avoid negligent conduct. Thus a duty of care is ordinarily owed to avoid conduct that creates risks of harms to others. This is the approach of the cases and the understanding of major commentators and the Restatement Third of Torts. (Footnotes omitted).

2 Dan B. Dobbs, et al., The Law of Torts § 251, at 2-4 (2d ed. 2011). Dobbs then elaborates on the ordinary duty of care, explaining that, "The general duty of reasonable care arises when the harm complained of is physical harm to person or property and the parties are strangers, that is, when the parties are not in a special relationship that calls for a different duty standard." Id. at § 254, at 12. To the contrary, "When the . . . parties are in a special relationship . . ., courts may prescribe or recognize different obligations." Id.

Driving home the point that Section 315 does not apply in cases of active risk creation, Dobbs states that, "the rule of non-liability for failure to control third persons does not shield the defendant from liability for his negligence [when] Courts perceive the defendant's conduct as actively creating an unreasonable risk of injury from such third persons." Id. at § 413, at 699-700. As Dobbs explains, the reason why the ordinary duty of care, and not the rule of Section 315, applies to individuals who actively create a risk of harm is because, "The defendant in these cases is not being required to control others or even to protect them from attacks. On the contrary, he is being required only to take no active steps in creating risks of danger from third persons. In such cases, the no-duty-to-control rule does not protect the defendant." Id. at § 414, at 702-03 (emphasis added).

Likewise, this view is also shared by Oscar Gray in his treatise Harper, James and Gray on Torts. As Gray explains, at one end of the duty spectrum are cases in which individuals actively create a risk of harm. Explaining the duty applicable in these cases, Gray states that, "people owe a duty to use care in connection with their affirmative conduct, and they owe it to all who may foreseeably be injured if that conduct is negligently carried out." 3 Oscar S. Gray, Harper, James & Gray on Torts § 18.6, at 862 (3d ed. 2007). Gray continues: "At the other end of the spectrum are cases where the peril to the plaintiff has come from a source in no way connected with the defendant's conduct or enterprises or undertakings, past or present, but where the defendant has it in his power by taking some reasonable precaution to remove the peril." Id. at § 18.6, at 874. In these cases, the rule of Section 315 would apply, and as Gray phrases it, "the law has traditionally been said to find no duty." Id. But Gray clearly recognizes that the rule of Section 315 does not mean that liability for third party conduct is always foreclosed. He explains that, "[t]he distinction between affirmative conduct and the mere omission to act comes into play in deciding whether an actor has the duty to control the conduct of others." Id. at § 18.7, at 899.

Thus, the major legal commentators on the law of torts—including the Restatement Second; the Restatement Third; Prosser and Keeton; Dobbs; and Harper, James and Gray—all support my understanding that the ordinary duty of care governs individuals who actively create a risk of harm to others, and the rule of Section 315 governs individuals who are merely passive observants, playing no role in the harm suffered by the plaintiff.

This Court Has Applied the Ordinary Duty of Care to Conduct of Third Persons

Indeed, further contradicting the Majority's use of the special relationship test in this case, this Court has applied the ordinary duty of reasonable care, in several different instances, to hold a defendant liable, for negligence, to members of the general public based on harm caused by a third person. The tort of negligent entrustment is a particularly apt illustration.^[37]

The most common example of negligent entrustment occurs when the owner of an automobile loans a car to a third person who the owner knows, or should know, was likely to use the car in a manner involving an unreasonable risk of physical harm to others. See Restatement (Second) of Torts § 390 (1965).^[38] The third person then causes an accident, injuring some member of the general public. In such cases, we routinely hold the owner liable to the injured member of the public for the harm caused by the third person based on the owner's primary negligence in entrusting the car to the third person. This is because the owner of a car has a duty to exercise due care to avoid unreasonable risks of harm to others. And, because the owner knew or should have know that the third person was likely to use the car in a manner involving an unreasonable risk of physical harm to others, the owner has failed to exercise the necessary due care. The owner, therefore, is held liable to a member of the general public for the harm of a third person based "upon [the owner's] primary negligence . . . in permitting [the third person] . . . to be in possession of and operate the [car], Rounds v. Phillips, 166 Md. 151, 160, 170 A.2d 532, 535 (1934), because the owner had the "power to permit and prohibit the use of the entrusted [car]." Broadwater v. Dorsey, 344 Md. 548, 559, 688 A.2d 436, 441 (1997).

Likewise, in the tort of negligent hiring we also hold defendants liable for negligence to members of the general public for harm caused by a third person. This is because an employer owes a duty of reasonable care to select fit employees who will not cause an unreasonable risk of harm to others. Explaining this duty, this Court has specifically stated: "The class of persons intended to be protected by the imposition of this duty necessarily includes those members of the public who would reasonably be expected to come into contact with [the employee]. That such persons could not be identified in advance does not mean that they are not included in the class." Henley v. Prince George's Cnty., 305 Md. 320, 336, 503 A.2d 1333, 1341 (1986) (emphasis added); see also Evans v. Morsell, 284 Md. 160, 164, 395 A.2d 480, 483 (1978) ("Long ago this Court recognized, . . . that in hiring and retaining someone, an employer owes a duty to his other employees and to the general public to use reasonable care.").

In Henley v. Prince George's County, for example, a building contractor hired a former convict as a carpenter instructor, but subsequently entrusted the former convict to perform security and caretaking functions as well. 305 Md. at 324-25, 503 A.2d at 1335-36. The contractor knew that the convict had been convicted of second degree murder and had made comments that, if he caught the person vandalizing the property, he would rape and kill him. Id. Still, the contractor kept the former convict in his security position. Id. at 327, 503 A.2d at 1336. The former convict then did just what he promised to do: he raped and killed a suspected vandal. Id. The Court stated that the building contractor could owe a duty to the suspected vandal because "[t]he class of persons intended to be protected by the imposition of this duty necessarily includes those members of the public who would reasonably be expected to come into contact with [the former convict] in his performance of security duties." Id. at 336, 503 A.2d at 1341. In this regard, "[i]t is at least a permissible conclusion that a suspected vandal would be within the class of persons subjected to an increased risk of harm by the negligent assignment of security duties to [the former convict], and thus the test of foreseeability may be met. . . ." Id. at 337, 503 A.2d at 1342. Thus, an employer can be liable to a member of the general public for harm caused by a third person.

The Role of Foreseeability In Limiting the Ordinary Duty of Care

As these examples clearly illustrate, contrary to the Majority opinion, this Court has imposed the ordinary duty of reasonable care on a defendant, as to members of the public who are harmed by the conduct of a third person, without requiring the plaintiff to prove a special relationship under Section 315.^[39] In so doing, this Court has recognized the problems with potentially unlimited liability to any member of the public, and therefore, has fashioned its case law around limiting the ordinary duty to avoid unreasonable risk of harm to others, not rejecting it wholesale: "We have also recognized that the concept of duty as owing to all persons the exercise of reasonable care to protect them from harm has to be limited if liability for unreasonably remote consequences are to be avoided." Hartford Ins. Co. v. Mayor Inn of Bethesda, Inc., 335 Md. 135, 148, 642 A.2d 219, 226 (1994). In this regard, "[o]ne of the mechanisms that has been utilized to accomplish that limitation is, and has been, application of the variable, foreseeability, to the determination of whether a duty exists." Id. at 148-49, 642 A.2d at 226. In other words, we have limited the duty so that an individual does not owe a duty of care to every member of the general public who is harmed by a third person, but only to those who could be foreseeably harmed by his conduct. See, e.g., Henley, 305 Md. at 336, 503 A.2d at 1341 ("The class of persons intended to be protected by the imposition of this duty necessarily includes those members of the public who would reasonably be expected to come into contact with Wantland in his performance of security duties." (emphasis added)).

The use of foreseeability to limit the ordinary duty to exercise reasonable care contradicts the Majority's interpretation that the ordinary duty of care only applies in cases where the plaintiff and defendant have a direct one-on-one relationship. Certainly there are at least some situations in which it is foreseeable that a defendant's affirmative conduct will cause a third person to harm the plaintiff. See Gourdine v. Crews, 405 Md. 722, 754, 955 A.2d 759, 789 (2008) ("Therefore, although there may be circumstances where foreseeability alone may give rise to liability to a third party because of policy reasons, this is not the case." (emphasis added)). And, when these situations do arise, the ordinary duty to exercise reasonable care may be imposed on the defendant based on the defendant's own active creation of risk.

Ordinary Duty of Care Imposed on Dram Shop's Active Risk Creation

To determine in which cases the ordinary duty will lie, this Court is required to examine several factors. In this group, foreseeability has often been described as the most important factor, but it is not the only one, and the factors we consider in determining the existence of a duty ordinarily include:

the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered the 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.

Remsburg v. Montgomery, 376 Md. 568, 583, 831 A.2d 18, 26 (2003) (citation omitted). The Majority, although it cites these factors, fails to provide any in-depth analysis of them. I endeavor to examine each of the necessary factors in the context of this case.

Foreseeability

To determine whether a common law duty should be imposed on the bar, I begin with the factor that is often considered the most important in the duty calculus: "the foreseeability of harm to the plaintiff." In determining when the harm must have been foreseeable, this Court has explained: "Forseeability as a factor in the determination of the existence of a duty involves a prospective consideration of the facts existing at the time of the negligent conduct." Henley, 305 Md. at 336, 503 A.2d at 1341. In this case, then, the question is whether it was foreseeable by the tavern, at the time of continuing to serve alcohol to Eaton after he was already "visibly under the influence," that Eaton might get behind the wheel of a car, cause an accident, and kill or seriously injure someone.

Most people know that the "[o]ver-consumption of alcohol is linked to serious alcohol-related problems, including traffic crashes and fatalities. . . ." Nat'l Highway Traffic Safety Admin, at 11. In Maryland alone, over 24,000 people are arrested every year for driving under the influence of alcohol. See Task Force, Findings and Recommendations, at 1-2. Drunk drivers account for approximately forty percent of all traffic related accidents in this State. Id. On average, this accounts for 4,899 accidents every year. Id. Sadly, these accidents often result in the predictable outcome—death: "In Maryland, an average of 220 people died annually as a result of impaired-driving-related crashes on Maryland roads between 2004 and 2007. This equates to 18 deaths a month or a death every 40 hours. . . ." Id. (emphasis added).

This unfathomable number of deaths is in no small part related to commercial vendors of alcohol. As the United States Department of Transportation explained: "Studies . . . show that up to 50 percent of people driving under the influence had their last drinks at licensed establishments. . . ." Nat'l Highway Traffic Safety Admin., at 2. As another study put it: "Roadside surveys disclosed that the leading source of intoxicated drivers . . . has been licensed on-sale establishments, such as bars and restaurants." McKnight, at 79.

In the face of these statistics, and based on common knowledge, it was clearly foreseeable by the bar, that if it continued to serve a patron who was already "visibly under the influence" of alcohol, the patron may drink and drive, violate the rules of the road, and cause an accident. To say that the bar could not reasonably foresee the possibility of Eaton driving a car would be misguided.^[40]

Policy of Preventing Future Harm

In addition to the foreseeability analysis, this Court also considers whether imposing a duty would create a "policy of preventing future harm." Discussing this factor, this Court has looked to the following explanation offered by Prosser and Keeton:

The "prophylactic" factor of preventing future harm has been quite important in the field of torts. The courts are concerned not only with the compensation of the victim, but with admonition of the wrongdoer. When the decisions of the courts become known, and defendants realize that they may be held liable, there is of course a strong incentive to prevent the occurrence of the harm. Not infrequently one reason for imposing liability is the deliberate purpose of providing that incentive. . . . While the idea of prevention is seldom controlling, it very often has weight as a reason for holding the defendant responsible.

Keeton, § 5, at 25-26; see also Matthews v. Amberwood Assocs. Ltd. P'ship, 351 Md. 544, 570, 719 A.2d 119, 132 (1998), modified, Tracey v. Solesky, 427 Md. 627, 50 A.3d 1075 (2012).

Regarding the danger created by people like Eaton, the General Assembly has sought to prevent both over-intoxication and drunk driving. The Legislature has committed an entire Article of the Code to the regulation of alcoholic beverages, stating: "It is the policy of the State of Maryland that it is necessary to regulate and control the manufacture, sale, distribution, transportation and storage of alcoholic beverages within this State . . . to obtain respect and obedience to law and to foster and promote temperance." Md. Code (1957, 2011 Repl. Vol.), Article 2B, § 1-101(a)(1). In so doing, the Legislature further declared that "[t]he restrictions, regulations, provisions and penalties contained in this article are for the protection, health, welfare and safety of the people of this State." Id. § 1-101(a)(3).

To this end, the General Assembly has envisioned that commercial vendors of alcohol will play a role in protecting the public from over-intoxication and drunk driving. The Legislature made it a criminal offense for a bar "licensed under this article, or any employee of the [bar to] sell or furnish any alcoholic beverages at any time . . . [t]o any person who, at the time of the sale, or delivery, is visibly under the influence of any alcoholic beverage." Id. § 12-108(a)(1)(ii) (emphasis added). The Legislature then required these commercial vendors to attend and be trained by alcohol awareness programs. Id. § 13-101. Specifically, this mandatory training provided to the bar (1) "includes instruction on how alcohol affects a person's . . . [b]ody; and . . . [b]ehavior;" (2) "provides education on the dangers of drinking and driving; and" (3) teaches "effective methods for . . . [s]erving customers to minimize the chance of intoxication; . . . [c]easing service before the customer becomes intoxicated; and . . . [d]etermining if a customer is under the drinking age." Id. § 13-101(a)(2)-(4).^[41]

The General Assembly has also sought other ways to rid this State of its drunk drivers. As this Court has previously explained, "[t]he General Assembly's goal in enacting the drunk driving laws . . . is to meet the considerable challenge created by this problem by enacting a series of measures to rid our highways of the drunk driver menace." Motor Vehicle Admin. v. Richards, 356 Md. 356, 372-73, 739 A.2d 58, 67-68 (1999) (alterations in original) (citation and quotation marks omitted). These "statutory provisions were enacted for the protection of the public and not primarily for the protection of the accused." Id. at 373, 739 A.2d at 68 (citation and quotation marks omitted). Yet, as the statistics illustrate, the Legislature's efforts have not been successful.

Under these circumstances, it is appropriate, and, I submit, wise, to invoke a common law remedy to help in solving the problem. A main goal of tort law is to deter future negligent conduct, which is accomplished by providing tortfeasors with proper incentives that will create a policy of preventing future harm.^[42] Imposing civil dram shop liability would do just that: it would create stronger incentives for the bar owners to abide by the existing requirement that they avoid serving patrons that are already "visibly under the influence" of alcohol. See Art. 2B, § 12-108(a)(1)(ii) (making it a criminal offense for a bar to "sell or furnish any alcoholic beverages at any time . . . [t]o any person who, at the time of the sale, or delivery, is visibly under the influence of any alcoholic beverage"). This "can foster an environment that encourages responsible server behavior, and thus encourages investment in server training and other primary prevention strategies [and] can also help to create a retail environment that makes responsible beverage service the norm." Rammohan, at 340.

Indeed, scientific "studies of dram shop liability [have] consistently found that this intervention reduced motor vehicle crash deaths in general and alcohol-related crash deaths in particular. Strong evidence indicated that dram shop liability is an effective intervention for reducing alcohol-related harms, as indicated by reduced motor vehicle crashes." Id.

The current statutory scheme jumps from the regulation and licensing of bars straight to criminal responsibility. Imposing a common law duty on commercial vendors not to serve alcohol to a patron, who is already "visibly under the influence," creates effective incentives, which would enhance the statutory scheme already in place to deter misconduct by the tavern and prevent future harm.^[43]See Eisel v. Bd. of Educ. of Montgomery Cnty., 324 Md. 376, 389, 597 A.2d 447, 454 (1991) ("[H]olding [school] counselors to a common law duty of reasonable care to prevent suicides when they have evidence of a suicidal intent comports with the policy underlying this Act.").

Closeness of the Parties

The next factor to consider, in determining whether there is a duty, is the closeness of the parties. Similar to the foreseeability analysis, this factor takes into account "the closeness of the connection between the defendant's conduct and the injury suffered." In this regard, this Court has stated:

an inverse correlation exists between the nature of the risk on one hand, and the relationship of the parties on the other. As the magnitude of the risk increases, the requirement of privity is relaxed—thus justifying the imposition of a duty in favor of a large class of persons where the risk is of death or personal injury.

Jacques v. First Nat'l Bank of Md., 307 Md. 527, 537, 515 A.2d 756, 761 (1986). Thus, this standard involves a spectrum by which courts should determine whether to impose a duty of care. The more severe the injury, the more remote the parties may be.

Here, the harm is as severe as possible. It very often involves death or permanent serious injury. In this case, a ten-year old girl was killed, and her thirteen-year old sister and both grandparents suffered serious injuries. Furthermore, not only is the type of harm severe, but it is frequent. See Task Force, Findings and Recommendations, at 1-2. Thus, the magnitude of the harm moves this case across the spectrum and justifies imposition of a duty in favor of a large class of individuals, including the Warrs in this case.

Moral Blame

In determining the existence of a duty, this Court also looks at "the moral blame attached to the defendant's conduct." Under this factor, an intent to cause harm is not necessary. Eisel, 324 Md. at 390-91, 597 A.2d at 455. Rather, "the reaction of persons in general to the circumstances" is important. The question is whether it is "the sense of the community that an obligation exists under the circumstances." Id. In this case, I would answer yes. The majority of the general public would be outraged at a commercial vendor who, for the sake of profit, continues to serve an already drunk person well past the line of being "visibly under the influence," to the point of becoming aggressive and violent, and then sends him on his way, where he gets behind the wheel of a vehicle and kills a ten-year-old girl. By the standards of our community, this is morally blameworthy. See Art. 2B, § 12-108(a)(1)(ii) (making the conduct of the bar punishable by criminal penalties); see also Nat'l Highway Traffic Safety Admin., at 7 ("Criminal liability suggests moral approbation. . . .").

Burden on Commercial Vendors of Alcohol

Before this Court will impose a duty, however, we also examine "the extent of the burden to the defendant." In this case, establishing a common law duty not to serve alcohol to a person who is "visibly under the influence" does not impose any new or additional burden on the bar owners. This burden already exists, and was imposed on the tavern by the General Assembly—violation of which exposes the tavern to criminal prosecution. See Art. 2B, § 12-108(a)(1)(ii). And, if a bar is already complying with the burden established under the criminal law, then this declaration of a parallel common law duty is not unduly burdensome.

Moreover, when the death of a Maryland citizen every forty hours is compared against ensuring that a person "visibly under the influence" of alcohol is not served further alcoholic drinks, the scales tip overwhelmingly in favor of imposing a duty on the bar establishments. See Task Force, Finding and Recommendations, at 1-2.

Conclusion: A Duty Exists

Examining the sum of all the factors, I would hold that the common law of Maryland imposes an ordinary duty of reasonable care on a commercial vendor of alcohol not to continue to serve alcohol to any person "visibly under the influence" of alcohol. It is reasonably foreseeable that a patron visibly under the influence of alcohol may drink and drive and cause a serious accident due to the effects of alcohol. Recognizing a duty augments the current legislative scheme and provides greater incentives for tavern owners to adopt procedures designed to prevent future harm. The nexus between the parties here is sufficiently close given the enormous magnitude of the harm caused by the over-intoxication of Eaton. The conduct of a tavern in selling to visibly intoxicated persons is morally blameworthy and imposing this duty simply invokes a common-law remedy to increase compliance with existing obligations of the tavern.

Let me stress the limits of the duty which I would impose: it involves only the service of alcohol by a commercial vendor after a patron is "visibly under the influence" of alcohol. There would be no breach of duty in serving the customer before visible intoxication, and none in serving the drink that pushes a patron over the line from not visibly intoxicated to visibly intoxicated. As a Texas court explained this limitation, "the duty to discontinue serving alcohol arises once, through the observation of a patron's demeanor, conduct or appearance, [the bar] knows or should know the patron is intoxicated." El Chico Corp. v. Poole, 732 S.W.2d 306, 313 (Tex. 1987). A West Virginia court offered more detailed guidance, explaining that

the seller or its agents must be capable of knowing that the buyer is drunk. The standard is that the buyer exhibited some physical sign of drunkenness, such that reasonably prudent serving personnel could have known that the buyer was drunk. The most obvious case is physical staggering. Slurring of words, loud or inappropriate speech, bleary eyes, shaky hands, and general slovenliness are other signs a server should look for. The sheer amount of alcohol a patron has been served may make it apparent to the server that the drinker has had too much. Thus, there would be no liability for serving one drink to a drunk person who displays no signs of drunkenness. . . .

Bailey v. Black, 394 S.E.2d 58, 60 (W. Va. 1990). Thus, in order to prevail, a plaintiff (the Warrs) would bear the burden of proving, by a preponderance of the evidence, that the intoxicated patron (Eaton) was served by a commercial vendor (JMGM) after the vendor knew or should have known that the patron was "visibly under the influence" of alcohol.^[44]

Proximate Cause

After duty, comes proximate cause. I would also hold that the serving of alcohol by the bar (JMGM) can be the proximate cause of injuries suffered by a third person (the Warrs) based on the tortious acts of an intoxicated customer (Eaton). The doctrine of stare decisis does not counsel otherwise.

Stare Decisis Does Not Prevent Changing the Rule

Unlike the duty of care issue, this Court does have precedent regarding the proximate cause issue—Hatfield and Felder. Under such circumstances, we generally adhere to principles of stare decisis, which "promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process." Livesay v. Balt. Cnty., 384 Md. 1, 14, 862 A.2d 33, 40-41 (2004) (citation and quotation marks omitted). Yet, this Court will alter its common law precedent when the prior decision was "clearly wrong and contrary to established principles," or "when there is a showing that the precedent has been superseded by significant changes in the law or facts." DRD Pool Serv., Inc. v. Freed, 416 Md. 46, 64, 5 A.3d 45, 55-56 (2010) (citations and quotation marks omitted). Such changes may occur when, for example, "we find, in light of changed conditions or increased knowledge, that the rule has become unsound in the circumstances of modern life, a vestige of the past, no longer suitable to our people."^[45]Harrison v. Montgomery Cnty. Bd. of Educ., 295 Md. 442, 459, 456 A.2d 894, 903 (1983). I believe such is the case here.

Change in the Facts

Hatfield drew upon a long-standing rule, created in the 1800s, that there is "no right of action against a seller of intoxicating liquors, as such, for `causing' intoxication of the person whose negligent or wilful wrong has caused injury."^[46] 197 Md. at 254, 78 A.2d 756. At that time, the law did not recognize a "relation of proximate cause between a sale of liquor and a tort committed by a buyer who has drunk the liquor." Id.

In the 1800s, however, most people would either walk or ride in horse-drawn carriages. At the time the common law rule was developed, the modern automobile had not even been invented, and therefore, the selling of alcohol to a visibly intoxicated person would not have created an unreasonable risk of harm to others through the operation of a motor vehicle. Today, however, people rely substantially on an automobile when they travel outside their immediate neighborhoods. Indeed, many bars provide its patrons with a parking lot or accessible parking nearby.^[47]

The significance of this change in our society is obvious and profound. Automobile accidents are one of the leading causes of death in our country, and the addition of alcohol only makes the situation more dire.^[48]See Shannon, 947 S.W.2d at 352 ("Today, motor-vehicle crashes are the single greatest health hazard to people under the age of 45."). In 2011, nationwide, a person was killed in an alcohol-related accident every fifty-three minutes. See Nat'l Highway Traffic Safety Admin., Traffic Safety Facts 2011 Data: Alcohol-Impaired Driving 1 (2012). It should go without saying that this carnage created by automobiles and drunk drivers did not exist in the horse-and-buggy days.^[49]

Likewise, our societal perceptions of drunk driving have changed greatly since our Hatfield decision in 1951, and even our Felder decision in 1981. The peak of the temperance movement in America was clearly Prohibition. But, after Prohibition ended in 1933, "the pendulum would swing far in the other direction, strongly discouraging governmental intervention in the world of liquor." Barron H. Lerner, One for the Road: Drunk Driving Since 1900 4 (2011). As Lerner put it, the end of Prohibition "ushered in the acceptance of drinking, it also signified Americans' willingness to tolerate and even celebrate drunk driving, though this position was never quite stated as such." Id. at 14. Illustrating the prevalence of this societal acceptance at the time Hatfield was decided, some have argued that it would be "reasonable to call the 1950s and early 1960s the `golden age of drunk driving.'" Id. at 38. With the prosperous economy following the end of World War II, Americans began to buy a large number of cars with just over 40 million vehicles on the road in 1950, the Eisenhower administration greatly expanded the country's interstate system, and baby-boom families began moving to the suburbs and taking more vacations. Id. at 44.

Unfortunately, in 1951, we did not have an understanding of how dangerous the roads were becoming with this increased automobile travel and Americans' continued desire to drink alcohol. The first attempt to study drinking and driving was not done until 1959, the first truly comprehensive study of drinking and driving was not done until 1968, the legal limit for a person's blood alcohol content ("BAC") to drive in 1951 was still 0.15%, and the breathalyzer was not invented until 1954. Id. at 49, 51, 54, 56, 61. Combining our renewed ability to drink alcohol following the end of Prohibition, with our embrace of the automobile following World War II, and our lack of understanding of how dangerous drinking and driving could be, the "societal acceptance of drunk driving persisted for nearly five decades, until . . . the late 1970s." Id. at 14.

This social acceptance began to change in 1980 when Mothers Against Drunk Drivers was initially created. Id. at 65. At the time we issued our Felder decision in 1981, however, the movement against drinking and driving had not yet fully taken off. It was not until 1982 when President Reagan condemned the "slaughter" caused by drunk drivers and appointed a presidential commission to study the subject. Id. It was also after Felder that the drinking age was raised to 21 years old, the legal BAC limit to drive was lowered from 0.15% to 0.08%, portable breathalyzer testing began to be implemented, random sobriety checkpoints began to be used, and the concept of the designated driver and slogans such as "friends don't let friends drive drunk" became popularized. See generally id.

In sum, our society and the acceptance of drinking and driving has changed drastically since the 1800s when the common law rule was created, since 1951 when we first recognized the common law rule in Maryland, and since 1981 the last time we addressed the issue.

Change in the Law

Tort law generally has dramatically evolved from the nineteenth century to the present. Although concepts of fault have long existed, "negligence took shape as a separate tort only during the earlier part of the nineteenth century." Keeton, § 28, at 160. In its beginning, the tort was restricted to "the liability of those who professed to be competent in certain `public' callings. A carrier, an innkeeper, a blacksmith, or a surgeon, was regarded as holding oneself out to the public as one in whom confidence might be reposed, and hence. . . he might be liable."^[50]Id. at 161. Negligence has evolved profoundly from this nineteenth century origin. For example, when the traditional common law rule was created, it was unheard of to hold a vendor liable for damages suffered by a subsequent consumer who lacked privity of contract. See Keeton, § 96, at 681 ("[T]he nineteenth century had firmly established the general rule that the original seller of goods was not liable for damages caused by their defects to anyone except his immediate buyer, or one in privity with him.") Yet, today, it is well accepted that vendors can be held liable to third parties^[51]—so much so that proof of negligence is not even required in strict products liability cases. See, e.g., Phipps v. Gen. Motors Corp., 278 Md. 337, 340-41, 344, 363 A.2d 955, 957, 958 (1976).^[52]

The most telling change of all, though, is the across-the-board retreat by state courts from the traditional common law rule, under which the serving of alcohol could not be the proximate cause of injuries suffered by a third person as a result of the tortious conduct of an intoxicated patron. Specifically, courts in thirty-four states have abandoned this common law rule and held that, as a matter of state common law, the serving of alcohol can be the proximate cause of such injuries. See Buchanan v. Merger Enters., Inc., 463 So. 2d 121, 126 (Ala. 1984); Nazareno v. Urie, 638 P.2d 671, 673-74 (Alaska 1981); Ontiveros v. Borak, 667 P.2d 200, 205-07 (Ariz. 1983); Shannon v. Wilson, 947 S.W.2d 349, 356 (Ark. 1997); Vesely v. Sager, 486 P.2d 151, 158-59 (Cal. 1971); Largo Corp. v. Crespin, 727 P.2d 1098, 1103-04 (Colo. 1986); Craig v. Driscoll, 813 A.2d 1003, 1017 (Conn. 2003); Sutter v. Hutchings, 327 S.E.2d 716, 719 (Ga. 1985); Ono v. Applegate, 612 P.2d 533, 537-38, 540-41 (Haw. 1980); Alegria v. Payonk, 619 P.2d 135, 139 (Idaho 1980); Elder v. Fisher, 217 N.E.2d 847, 852-53 (Ind. 1966); Lewis v. State, 256 N.W.2d 181, 191-92 (Iowa 1977); Grayson Fraternal Order of Eagles v. Claywell, 736 S.W.2d 328, 332-34 (Ky. 1987); Klingerman v. SOL Corp. of Maine, 505 A.2d 474, 477-78 (Me. 1986); Adamian v. Three Sons, Inc., 233 N.E.2d 18, 20 (Mass. 1968); Trail v. Christian, 213 N.W.2d 618, 623-24 (Minn. 1973); Munford, Inc. v. Peterson, 368 So. 2d 213, 218 (Miss. 1979); Nehring v. LaCounte, 712 P.2d 1329, 1335 (Mont. 1985); Rappaport v. Nichols, 156 A.2d 1, 9 (N.J. 1959); Lopez v. Maez, 651 P.2d 1269, 1275-76 (N.M. 1982); Berkeley v. Park, 262 N.Y.S.2d 290, 293 (N.Y. Sup. Ct. 1965); Hutchens v. Hankins, 303 S.E.2d 584, 591 (N.C. Ct. App. 1983); Mason v. Roberts, 294 N.E.2d 884, 887-88 (Ohio 1973); Brigance v. Velvet Dove Restaurant, Inc., 725 P.2d 300, 304 (Okla. 1986); Campbell v. Carpenter, 566 P.2d 893, 897 (Or. 1977); Jardine v. Upper Darby Lodge, 198 A.2d 550, 553 (Pa. 1964); Harrison v. Berkley, 32 S.C.L. (1 Strob.) 525, 550-51 (S.C. 1847); Mitchell v. Ketner, 393 S.W.2d 755, 759 (Tenn. Ct. App. 1964); El Chico Corp. v. Poole, 732 S.W.2d 306, 313-14 (Tex. 1987); Mackay v. 7-Eleven Sales Corp., 995 P.2d 1233, 1236 (Utah 2000); Estate of Kelley v. Moguls, Inc., 632 A.2d 360, 363 (Vt. 1993); Sorensen v. Jarvis, 350 N.W.2d 108, 118 (Wis. 1984); McClellan v. Tottenhoff, 666 P.2d 408, 414-15 (Wyo. 1983).^[53]

Such a broad and resounding rejection of the old common law rule should not be ignored. In 1981, in Felder, we recognized that there was a "new trend of cases" which had done away with the old rule and recognized dram shop liability. 292 Md. at 178, 177 A.2d at 496. At that point, the Court urged the legislature to reconsider the issue, but chose, "for now," not to act on its own. Id. at 185, 177 A.2d at 500. With thirty-four state courts now agreeing, the cases are well past a "trend"—revealing a consensus that the old rule is no longer suitable for modern life. See, e.g., Claywell, 736 S.W.2d at 332 ("Thus, when we review the cases around the country deciding the issue of common law dram shop liability, the legal battle is largely over.").

Serving of Alcohol Can Be A Proximate Cause

Changes in society and the law call for reevaluation of the old rule. To do this, we need not do anything extraordinary; we should simply apply our well-established principles of common law negligence and proximate causation.

It is a basic tenet of Maryland law that "[n]egligence is not actionable unless it is a proximate cause of the harm alleged." Stone v. Chicago Title Ins. Co., 330 Md. 329, 337, 624 A.2d 496, 500 (1993). "To be a proximate cause for an injury, `the negligence must be 1) a cause in fact, and 2) a legally cognizable cause.'" Pittway Corp. v. Collins, 409 Md. 218, 243, 973 A.2d 771, 786 (2009) (quoting Hartford Ins. Co., 335 Md. at 156-57, 642 A.2d at 230). I will take each in turn, but before I do, I want to stress the importance of the well-settled rule that "proximate cause—both cause-in-fact and legal cause—analysis is reserved for the trier of fact." Id. at 253, 973 A.2d at 792. In this action, the circuit court granted a motion for summary judgment. This is a question of law for the courts only when the facts are "susceptible of but one inference" and "where reasoning minds cannot differ." Id.

Cause-in-Fact

The first step in proximate cause analysis is to determine whether the bar's negligence could have been a cause-in-fact of the Warrs' injuries. Cause-in-fact is the legal title given to "the threshold inquiry of whether defendant's conduct actually produced an injury." Id. at 244, 973 A.2d at 786 (citation and quotation marks omitted). To answer this question, two different tests have developed within Maryland law—the "but for" test and the "substantial factor" test. "The `but for' test applies in cases where only one negligent act is at issue." Id. The "substantial factor" test applies in cases where "two or more independent negligent acts bring about an injury." Id., 973 A.2d at 787. As this case involves two negligent acts—that of the bar and that of Eaton—the substantial factor test applies.

In Eagle-Picher Industries, Inc. v. Balbos, 326 Md. 179, 208-09, 604 A.2d 445, 459 (1992), we adopted the substantial factor test from the Second Restatement of Torts, which provides:

The actor's negligent conduct is a legal cause of harm to another if

(a) his conduct is a substantial factor in bringing about the harm, and

(b) there is no rule of law relieving the actor from liability because of the manner in which his negligence has resulted in the harm.

Restatement (Second) of Torts § 431 (1965). To aid in determining what conduct will satisfy this substantial factor test, the Restatement further states:

The following considerations are in themselves or in combination with one another important in determining whether the actor's conduct is a substantial factor in bringing about harm to another:

(a) the number of other factors which contribute in producing the harm and the extent of the effect which they have in producing it;

(b) whether the actor's conduct has created a force or series of forces which are in continuous and active operation up to the time of the harm, or has created a situation harmless unless acted upon by other forces for which the actor is not responsible;

© lapse of time.

Restatement (Second) of Torts § 433 (1965); see also Pittway, 409 Md. at 244-45, 973 A.2d at 787.

The facts alleged in the Warrs' complaint and those relied on by the Circuit Court in granting the Defendant's Motion for Summary Judgement showed that Eaton became visibly intoxicated by the bar's conduct of over-serving him, including service after Eaton was visibly intoxicated and had become violent and aggressive. Assuming these facts, a jury could reasonably determine that the bar's conduct, in continuing to serve Eaton beyond the point of visible intoxication, created a dangerous force that was in continuous operation from the point at which the bar over-served Eaton to the point at which Eaton injured the Warrs. See Restatement (Second) of Torts § 433. If a jury found these facts, it could reasonably conclude that "it is `more likely than not' that the [bar's] conduct was a substantial factor in producing the [Warrs'] injuries." Pittway, 409 Md. at 244, 973 A.2d at 787. With these allegations, it was improper to grant the motion for summary judgment, and thus remove this question from the province of the jury. Therefore, I would hold that the bar's service of alcohol to Eaton after he was "visibly under the influence" can be a cause-in-fact of the Warrs' injuries.

Legal Cause and Intervening Acts

Once cause-in-fact is established, the proximate cause analysis turns to the question of whether the bar's negligence was a legally cognizable cause of the Warrs' injury. See Pittway, 409 Md. at 245, 973 A.2d at 787. The concept of legal cause "is a policy-oriented doctrine designed to be a method for limiting liability after cause-in-fact has been established." Id. (footnote omitted). Here, we "consider whether the actual harm to [the Warrs] falls within a general field of danger that the [bar] should have anticipated or expected." Id. In other words, "whether the injuries were a foreseeable result of the negligent conduct." Id. at 246, 973 A.2d at 788. Legal causation does not lie where the court in retrospect believes that the injuries suffered by the plaintiff were "highly extraordinary and unforeseeable." Id. at 247, 973 A.2d at 788.

When there are consecutive or concurrent negligent acts that are causes-in-fact of the plaintiff's injuries, the foreseeability analysis must go one step further and consider intervening and superseding causes. "An intervening cause is one which comes into active operation in producing the result after the negligence of the defendant. `Intervening' is used in a time sense; it refers to later events." Keeton, § 44, at 301. Though a subsequent act may be an intervening cause, "[l]iability is avoided only if the intervening negligent act or omission at issue is considered a superseding cause of the harm to the plaintiffs." Pittway, 409 Md. at 248, 973 A.2d at 789.

In determining whether an intervening cause rises to the level of a superseding cause, this Court has explained that "a superseding cause arises primarily when `unusual' and `extraordinary' independent intervening negligent acts occur that could not have been anticipated by the original tortfeasor." Id. at 249, 973 A.2d at 789. In other words, "[a]n intervening force is a superseding cause if the intervening force was not foreseeable at the time of the primary negligence." Sindler v. Litman, 166 Md. App. 90, 115, 887 A.2d 97, 111 (2005).

In this regard, we have long held that "the defendant is liable where the intervening causes, acts, or conditions were set in motion by his earlier negligence, or naturally induced by such wrongful act." Penn. Steel Co. v. Wilkinson, 107 Md. 574, 581, 69 A. 412, 414 (1908) (citation and quotation marks omitted). In other words, "if the situation wrongfully created by the defendant increased the risk of damage through the operation of another reasonably foreseeable force, the defendant is liable for the ensuing loss." Little v. Woodall, 244 Md. 620, 626, 224 A.2d 852, 855 (1966).

To be sure, Eaton's drunken driving could be considered an intervening cause of the Warrs' injures as it came after the negligence of the bar, but it was not a superseding cause. As I explained under the duty-of-care analysis, it is clearly foreseeable by the bar, after continuing to serve a patron who is already "visibly under the influence" of alcohol, that the patron may drink and drive, violate the rules of the road, and cause an accident. And, with commercial vendors being the single largest facilitators of drunk drivers, there is nothing about the facts of this case that, in retrospect, appear to be "highly extraordinary" or "unusual." The intervening negligent acts of Eaton could be found to be clearly foreseeable by the bar.^[54]

Furthermore, the intervening acts of Eaton were set in motion by the earlier negligent conduct of the bar. According to the Complaint, the bar served Eaton for six hours, well past the point of visible intoxication. These alleged facts, if accepted by the jury, allow the reasonable conclusion that the bar increased the risk of damage to the Warrs through the foreseeable acts of Eaton. This question belongs to the province of the jury.

Conclusion: Proximate Cause Exists

Applying our well-established common law principles of negligence, I would hold that the bar's alleged service of alcohol to Eaton after he was "visibly under the influence" can be a proximate cause of the Warrs' injuries. The continued service of alcohol after the point of visible intoxication can be a substantial factor in producing the foreseeable injuries suffered by the Warrs. Certainly, this Court cannot say, as a matter of law, that there can never be a causal relationship between the continued service of alcohol to a patron already "visibly under the influence" and the subsequent accident which that patron causes upon leaving the bar. See Ontiveros, 667 P.2d at 205. As one of our sister courts put it, "if courts cling steadfastly to the myth that the continued selling of alcohol to a visibly intoxicated patron cannot be the proximate cause of a third person's injuries, they are wearing blinders when it comes to observing the ordinary course of events." Buchanan, 463 So. 2d at 126.

I would overrule our prior decision in Hatfield, which followed outdated cases from the late 1800s, and its progeny, Felder. In doing so, I would enter the door that Felder left open, when it clearly recognized both this Court's authority to change our outdated dram shop rule, and the benefits of doing so.^[55] Chief Judge Robert Murphy wrote for the Court,

Of course, the common law is not static. Its life and heart is its dynamism-its ability to keep pace with the world while constantly searching for just and fair solutions to pressing societal problems like that presented by the senseless carnage occurring on our highways, due in no small measure to the drinking driver. The common law is, therefore, subject to modification by judicial decision in light of changing conditions or increased knowledge where this Court finds that it is a vestige of the past, no longer suitable to the circumstances of our people.

Felder, 292 Md. at 182, 438 A.2d at 499. To be sure, when Chief Judge Murphy made that statement thirty-two years ago, we did not exercise our authority to change the law, electing—"for now"—to defer the issue of dram shop liability to the legislature. In doing so, however, we recommended that the legislature reexamine the Hatfield rule. See id. at 184, 438 A.2d at 499.

Our contemplation at that time that the Legislature would act affirmatively on the problem has apparently been misplaced. Since our invitation to the Legislature in 1981, no bill reached the floor of either house of the General Assembly. Four bills were introduced, but none came out of committee. See H.B. 1000 (2012); H.B. 1120 (2011); S.B. 739 (2002); S.B. 527 (1987). The two most recent bills, for example, were never voted on by the House Judiciary Committee.

Such legislative inaction, as this Court has held on numerous occasions, is not evidence of this State's public policy or legislative intent. See, e.g., City of Balt. Dev. Corp. v. Carmel Realty Assocs., 395 Md. 299, 329, 910 A.2d 406, 424 (2006) (rejection of a bill may not be evidence of intent "because the General Assembly may well have concluded that the rejected amendment `warrant[ed] further investigation' before acting on it or decided not to enact the amendment for a myriad of other reasons" (alteration in original) (citation omitted)).^[56] I suggest that this is especially true when, as here, a bill is kept in committee, as opposed to being voted against on the floor.^[57]

CONCLUSION

I aver that, with no legislative action on the issue in the thirty-two years since Felder, and an even larger trend of jurisdictions supporting liability, that the Felder Court's declining change "for now" should be amended to: now is the time for change. I strongly urge this Court to recognize that Hatfield and the nineteenth century cases it relied on wrongly "encumber the law of proximate causation with an artificial limitation that precludes jury consideration of the causal relationship between the sale of intoxicating beverages and consequent harm."^[58]Klingerman v. SOL Corp., 505 A.2d 474, 478 (Me. 1986); see also Crespin, 727 P.2d at 1104. It is not our place to continue to preserve special protections for tavern owners, when applying our well-established common law principles of negligence would hold them liable.

Yet, the Majority, in reaching its outcome, has done violence to the tort of negligence which will have far ranging consequences, well beyond the issue of dram shop liability. Our opinions must, first and foremost, be guided by sound legal reasoning, because seeking to obtain a particular result in one bad case can quickly make a lifetime's worth of bad law. I fear that, in reaching its desired holding today, the Majority's legal reasoning does just that. Respectfully, I dissent.

Judges Harrell and McDonald authorize me to state that they agree with the views set forth herein.

[1] Bell, C.J., participated in the hearing of the case, in the conference in regard to its decision and in the adoption of the opinion, but he had retired from the Court prior to the filing of the opinion.

[2] The term "dram shop liability" refers to "[c]ivil liability of a commercial seller of alcoholic beverages for personal injury caused by an intoxicated customer." Black's Law Dictionary 568 (9th ed. 2009). "Dram shop" is an archaic term for a bar or tavern. Black's Law Dictionary 567. The term "dram" is an antiquated unit of fluid measurement, equivalent to one eighth of a liquid ounce, used by apothecaries; its use in the phrase "dram shop" was a result of the fact that taverns often sold hard alcohol by the dram.

[3] The acronym JMGM is undefined in the record.

[4] Mr. Eaton is not a party to this suit.

[5] In considering the issues in this case, we express no opinion regarding any effect of sales of alcohol by tavern owners on premises liability.

[6] The hearing judge's opinion is unclear as to the exact type of hard alcohol consumed by Mr. Eaton.

[7] Mr. Eaton allegedly also consumed a "lemon drop shot," which is a drink consisting of vodka, lemon juice, and sugar, at some point during the evening; the hearing judge's opinion does not reflect whether it was during Mr. Eaton's first or second time at the Dogfish Head.

[8] Rule 2-322 states, in pertinent part:

(b) Permissive. The following defenses may be made by motion to dismiss filed before the answer, if an answer is required . . . (2) failure to state a claim upon which relief can be granted.

[9] The phrase "blank slate" is a translation of the Latin phrase tablua rasa, a term popularized by John Locke in An Essay Concerning Human Understanding (1690), to refer the natural state of the human mind as being blank and capable of being imprinted upon, or learning, based on experience.

[10] Although no longer a commonly used term, demurrer referred to "[a] pleading stating that although the facts alleged in the complaint may be true, they are insufficient for the plaintiff to state a claim for relief and for the defendant to frame an answer." Black's Law Dictionary 498 (9th ed. 2009). Functionally, motions under Rule 2-322(b)(2) have replaced demurrers.

[11] Section 118(a) of Article 2B of the Annotated Code of Maryland, (1957, 1976 Repl. Vol.) stated, in pertinent part:

No licensee under the provisions of this article, or any of his employees, shall sell or furnish any alcoholic beverages at any time to a minor under twenty-one years of age, except that the age shall be eighteen years for beer and light wine, either for his own use or for the use of any other person or to any person who, at the time of such sale, or delivery, is visibly under the influence of any alcoholic beverage. . . . Any person violating any of the provisions of this subsection shall be guilty of a misdemeanor and upon conviction thereof, shall suffer the penalties provided by § 200 of this article. . . .

[12] The dissent attempts to distinguish Barclay by asserting that Dogfish Head "actively" created the risk that Mr. Eaton would drive home by serving him while he was "visibly intoxicated," while the employer in Barclay was only "passive" by permitting the employee, who worked 22 straight hours, to become exhausted and then drive home. This distinction, however, is without a difference, because in both cases no one controlled the behavior of the employee or Mr. Eaton — both chose whether to exhaust himself or drink and drive. Indeed, we expressly noted in Barclay that we were relying on Kuykendall v. Top Notch Laminates, Inc., 70 Md. App. 244, 520 A.2d 1115 (1987), in addition to other cases including Felder and Hatfield, that, because there was no affirmative act of control over whether the employee operated the motor vehicle, there was no duty. Barclay v. Briscoe, 427 Md. 270, 306, 47 A.3d 560, 582 (2012) ("`Top Notch, took no affirmative act with respect to [the employee] operating a motor vehicle.'" (quoting Kuykendall, 70 Md. App. at 251, 520 A.2d at 1118) (emphasis added)).

[13] Lamb v. Hopkins, 303 Md. 236, 492 A.2d 1297 (1985), involving whether a probation officer who failed to report a probationer's violations owed a duty to an individual who was injured by the probationer's conduct, decided a year before Ashburn, was our first opinion on the issue of duty in the context of harm to a third party, but Ashburn has become the focus of the development of our jurisprudence.

[14] In Williams v. Mayor and City Council of Baltimore, 359 Md. 101, 753 A.2d 41 (2000), in considering whether a duty of care existed from a police officer to the victim of a domestic violence incident, we determined that once the officer gave explicit direction to the victim to remain in the home and that he would protect her, that a special relationship may have been created, "further creating a duty to either remain or to inform them that he was leaving." Id. at 150-51, 753 A.2d at 68.

[15] The theory of liability advanced by the Warrs and embraced by the dissent would not be limited to commercial vendors of alcohol. A social host who provides alcohol to his or her guests engages in exactly the same conduct as a commercial vendor, and would, presumably, be exposed to the same liability. See Kuykendall v. Top Notch Laminates, Inc., 70 Md. App. 244, 520 A.2d 1115 (1987) (refusing to impose liability on a social provider of alcohol because, absent a special relationship, there is no duty to control the conduct of a third party). Any provider of alcohol, such as social hosts, church groups, charitable organizations would be subject to liability. In essence, all providers of alcohol would be responsible for the conduct of all the persons to whom they dispense alcohol; however, we have constantly adhered to the principle that declaration of public policy is a legislative function. Felder v. Butler, 292 Md. 174, 183, 438 A.2d 494, 499 (1981) ("[T]he Court has always recognized that declaration of public policy is normally the function of the legislative branch of government.").

[16] The Warrs also point to Section 449 of the Restatement (Second) of Torts, which states, "[i]f the likelihood that a person may act in a particular manner is the hazard or one of the hazards which makes the actor negligent, such an act whether innocent, negligent, intentionally tortious, or criminal does not prevent the actor from being liable for the harm caused thereby." Section 449 does not establish a duty, but assumes that were a duty to be owed, intervening acts, as was exemplified in Horridge v. St. Mary's Co. Dept. of Social Services, 382 Md. 170, 194-95, 854 A.2d 1232, 1246 (2004), may not necessarily break the chain of causation.

[17] The Warrs also point to Sections 302A and 302B of the Restatement (Second) of Torts as potential sources of the duty owed by Dogfish Head to prevent the harm caused by Mr. Eaton. Section 302A states, "[a]n act or an omission may be negligent if the actor realizes or should realize that it involves an unreasonable risk of harm to another through the negligent or reckless conduct of the other or a third person." Section 302B provides, "[a]n act or omission may be negligent if the actor realizes or should realize that it involves an unreasonable risk of harm to another through the conduct of the other or a third person which is intended to cause harm, even though such conduct is criminal." The Warrs did not identify, nor can we find, any cases in which this Court has relied upon Section 302A or 302B; these Sections address foreseeablilty of harm and as applied in the present case, would mean foreseeability to the general public. As the Court stated in Valentine v. On Target, Inc., 353 Md. 544, 553, 727 A.2d 947, 951 (1999), "[o]ne cannot be expected to owe a duty to the world at large to protect it against the actions of third parties, which is why the common law distinguishes different types of relationships when determining if a duty exists."

[18] Section 37 of the Restatement (Third) of Torts: Liability for Emotional and Physical Harm, which replaced Sections 314 and 315 of the Restatement (Second) of Torts, is the final Section of the Restatement upon which the Warrs rely for the existence of a duty from Dogfish Head to them. Section 37 states "[a]n actor whose conduct has not created a risk of physical or emotional harm to another has no duty of care to the other unless a court determines that one of the affirmative duties provided in §§ 38-44 is applicable." The Warrs invoke Comments a and d of this Section to assert that the "no duty" rule espoused in Section 37, and formerly in Section 315, is not applicable in the instant case because, "Section 315, however, must be understood to address only an affirmative duty to control third parties. It did not address the ordinary duty of reasonable care with regard to conduct that might provide an occasion for a third party to cause harm." Section 37 of the Restatement (Third) of Torts, Liability for Emotional and Physical Harm, cmt. d. We address the Warrs' arguments regarding a duty owed to the general public infra.

[19] The Warrs also argue that Section 19 of the Restatement (Third) of Torts, which states, "[t]he conduct of a defendant can lack reasonable care insofar as it foreseeably combines with or permits the improper conduct of the plaintiff or a third party," is a source of Dogfish Head's duty to refuse to sell alcohol to an intoxicated patron. We have not heretofore adopted Section 19, but more importantly, Section 19 assumes the existence of a duty of care which is breached when a defendant acts in concert with another.

[20] The Hatfield Court also noted that there was a statute in effect at the time that made it illegal to sell alcohol to a minor, State v. Hatfield, 197 Md. 249, 251, 78 A.2d 754, 755 (1951), but did not discuss the statute.

[21] I use the term "commercial vendors of alcohol" to refer to any entity authorized by the Alcohol Beverages laws of Maryland to offer and serve alcohol for on-site sale and consumption. Throughout this opinion I also use the terms "bar" and "tavern" in place of "commercial vendors of alcohol." This is done for the sake of brevity, and all three terms are used in this opinion to represent the same class of establishments as defined above.

[22] This study is the product of the Task Force on Community Preventive Services, which was created by the United States Department of Health and Human Services (DHHS) in 1996 to develop guidance on which community-based health promotion and disease prevention interventions work and which do not work, based on available scientific evidence. The review team included "systematic review methodologists and subject matter experts from a range of agencies, organizations, and academic institutions." Id. at 336. It consisted of nine authors from institutions such as the Community Guide Branch of the Epidemiology and Analysis Program Office, the National Center for Chronic Disease Prevention and Health Promotion, the Los Angeles County Department of Health Services, the Division of Epidemiology and Community Health at the University of Minnesota School of Public Health, and the Section of General Internal Medicine from the Boston Medical Center.

The team collected all of the available scientific evidence on the topic, screening out those studies that did not satisfy their criteria for inclusion in the systematic review. In order to qualify for this review, a study had to "[e]valuate the effectiveness of dram shop liability or initiatives for enhanced enforcement of overservice regulations that could and did apply legal or administrative sanctions," "[b]e conducted in a country with a high-income economy, be primary research . . ., and be published in English," and it had to "[c]ompare attributes of participants before and after the implementation of the intervention or compare a group receiving the intervention with a group not receiving it." Id. at 337. The review then discussed the effectiveness of dram shop liability as shown by the results of the studies; the potential harms, additional benefits, and barriers to implementation of dram shop liability; the applicability of the results to different segments of the population; the costs and benefits of imposing dram shop liability; any weaknesses or gaps in the research of the underlying studies; and explained the conclusions of the review team.

[23] Illustrating how a focus on finding an act or omission can mislead the inquiry, Prosser and Keeton explain:

It is clear that it is not always a matter of action or inaction as to the particular act or omission which has caused the plaintiff's damage. Failure to blow a whistle or to shut off stream, although in itself inaction, is readily treated as negligent operation of a train, which is affirmative misconduct; an omission to repair a gas pipe is regarded as negligent distribution of gas; and failure to supply heat for a building can easily become mismanagement of a boiler. On the other hand, discharge of an employee, which is certainly an affirmative act, may be considered to be no more than non-performance of an agreement to continue employment, and a similar conclusion has been reached as to revocation of a theater ticket and expulsion of a patron. (Footnotes omitted).

W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 56, at 374-75 (5th ed. 1984).

[24] Put another way, Prosser and Keeton frame the inquiry as:

The question appears to be essentially one of whether the defendant has gone so far in what he has actually done, and has got himself into such a relation with the plaintiff, that he has begun to affect the interests of the plaintiff adversely, as distinguished from merely failing to confer a benefit upon him.

Keeton, § 56, at 375.

[25] Illustrating the difference, the Restatement states:

For example, a failure to employ an automobile's brakes or a failure to warn about a latent danger in one's product is not a case of nonfeasance . . . because in these cases the entirety of the actor's conduct (driving an automobile or selling a product) created a risk of harm. This is so even though the specific conduct alleged to be a breach of the duty of reasonable care was itself an omission.

Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 37 cmt. c. (2012).

[26] Section 314 provides:

§ 314. Duty To Act For Protection Of Others

The fact that the actor realizes or should realize that action on his part is necessary for another's aid or protection does not of itself impose upon him a duty to take such action.

Restatement (Second) of Torts § 314 (1965).

[27] Section 302 sets forth the duty of ordinary care when the risk of direct or indirect harm is created:

A negligent act or omission may be one which involves an unreasonable risk of harm to another through either

(a) the continuous operation of a force started or continued by the act or omission, or

(b) the foreseeable action of the other, a third person, an animal, or a force of nature.

Id. § 302.

[28] It should be noted that this Court has not yet had the opportunity to evaluate Sections 37 through 44 of the Third Restatement of Torts, and therefore, have not adopted them as part of Maryland law. Nevertheless, upon reviewing Section 37, and comparing it to Sections 314 and 315 of the Second Restatement of Torts—which we have expressly adopted as Maryland law—I can find no substantive distinction between the two that would justify our departure from these rules. Therefore, I advocate that this Court expressly adopt Section 37 of the Restatement (Third) of Torts: Liability for Physical and Emotional Harm. For examples of courts which previously followed Section 315 of the Second Restatement, but now apply Section 37 of the Third Restatement, see Iseberg v. Gross, 879 N.E.2d 278, 290-91 (Ill. 2007); Coombes v. Florio, 877 N.E.2d 567, 575 n.7 (Mass. 2007); Ginapp v. City of Bellevue, 809 N.W.2d 487, 492-93 (Neb. 2012); Satterfield v. Breeding Insulation Co., 266 S.W.3d 347, 359-60, 362-63 (Tenn. 2008).

[29] Indeed, the Restatement Third actually cites our case law—including Valentine v. On Target, Inc., 353 Md. 544, 551-52, 727 A.2d 947, 950 (1999) and Pulliam v. Motor Vehicle Administration, 181 Md. App. 144, 155, 955 A.2d 843, 850 (2008)—as examples of decisions properly applying Section 315, but then adds: "To be accurate, these statements about the lack of a duty to control third parties need qualification: an actor owes a duty of reasonable care when the actor's conduct contributes to the risk of a third party harming another." Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 37, reporters' notes cmt. d (2012). I believe it is time for us to make this qualification clear.

[30] In adopting Section 315, it appears that this Court appreciated that the rule of Section 315 applies only to cases where the defendant passively failed to act. To illustrate the application of Section 315, this Court quoted the Restatement's commentary which provides the following scenario as an illustration of Section 315:

if the actor is riding in a third person's car merely as a guest, he is not subject to liability to another run over by the car even though he knows of the other's danger and knows that the driver is not aware of it, and knows that by a mere word, recalling the driver's attention to the road, he would give the driver an opportunity to stop the car before the other is run over.

Lamb v. Hopkins, 303 Md. 236, 242 n.4, 492 A.2d 1297, 1300 n.4 (1985) (quoting Restatement (Second) of Torts § 315 cmt. b (1965)).

[31] Illustrating the Court's awareness of the difference between active and passive risk creation in this context, the Court distinguished the facts in Valentine from a Texas case, which did find a duty of care because there "the guard's pursuit of the armed shoplifter increased the danger to plaintiff's decedent and others present in the store, thereby partially creating the danger to which they were exposed." Valentine v. On Target, Inc., 353 Md. 544, 554, 727 A.2d 947, 952 (1999) (citing Berly v. D & L Sec. Servs. & Investigations, Inc., 876 S.W.2d, 179 (Tex. Ct. App. 1994)).

[32] We stated:

Extending the general duty that an actor owes to exercise reasonable care to avoid causing injury to another and applying it to the facts of this case would require that this Court create a completely new cause of action. . . . We caution that the holding in this case does not mean that a gun store owner may never be held liable to another party for negligence in the display and sale of guns when that other party is injured as a result of the negligence but rather that under the specific facts alleged in this particular case no duty was owed to this petitioner's decedent. (Emphasis added).

Id. at 556, 727 A.2d at 952-53.

[33] The Court also considered Section 315 in Williams v. Mayor of Baltimore, 359 Md. 101, 753 A.2d 41 (2000). The issue in Williams was whether an officer's specific promises of protection could create a special relationship sufficient to impose a tort duty of protection on the part of the officer. Id. at 108, 753 A.2d at 44. Applying the rule of Section 315, the Court held that a special relationship may have been formed, stating: "While the officer may have had no duty to remain, if in fact he told Mrs. Williams that he would remain to protect them, he may have created a special relationship further creating a duty either to remain or to inform them that he was leaving." Id. at 150-51, 753 A.2d at 68.

Thus, in Williams the officer generally would not have owed a duty because, at all times, the officer was merely passive—i.e. his failure to protect the victims from harm—and did not actively contribute to the harm suffered by the plaintiff. But, under the facts of that case, the rule of Section 315 may still hold the officer liable because a special relationship could have been formed.

[34] For additional Maryland cases applying the rule of Section 315 to situations where the defendant passively failed to act, see Remsburg v. Montgomery, 376 Md. 568, 590, 599, 831 A.2d 18, 31, 36 (2003) (applying Section 315 to hold that no duty was imposed on the organizer of a hunting party for passively failing to prevent a member of the party from acting negligently); Muthukumarana v. Montgomery Cnty., 370 Md. 447, 486, 496, 805 A.2d 372, 395, 401 (2002) (applying Section 315 to hold that no duty was imposed on 911 operators for passively failing to prevent the harm suffered by the victim); Ashburn v. Anne Arundel County, 306 Md. 617, 630-31 & n.2, 510 A.2d 1078, 1085 & n.2 (1986) (applying Section 315 to hold that no duty was imposed on a police officer for passively failing to detain a drunk driver).

[35] Illustrating the Majority's carelessness, is the Majority's reliance on several Section 315 cases—such as Barclay, Ashburn, and Remsburg—as well as Gourdine v. Crews, 405 Md. 722, 955 A.2d 759 (2008). Gourdine is an ordinary duty of care case that did not address Section 315. Indeed, the Court in Gourdine specifically stated: "Special relationship, nevertheless, is not an issue in the present case." 405 Md. at 746 n.12, 955 A.2d at 784 n.12. Yet, the Majority suggests that our holding in Gourdine was based on the fact that the plaintiff "had not alleged any special relationship." Maj. Slip Op. at 18.

Such a mischaracterization misrepresents our holding in Gourdine and demonstrates the Majority's failure to recognize the differences between the ordinary duty of care and the rule of Section 315. Indeed, the Majority fails to provide any citation to Gourdine where this Court stated that a special relationship was required in order to find a duty. Indeed, it could not, because the Court never discussed special relationship. Instead, in Gourdine we held that there was no duty because the connection between the pharmaceutical company's specific failure to give a warning and the specific victim's injury was too attenuated. 405 Md. at 750, 955 A.2d at 786. This discussion of a connection between the parties was not a discussion of a special relationship. It was a discussion of "the closeness of the connection between the defendant's conduct and the injury suffered" which—as I will explain later—is a factor to be considered under the ordinary duty of care analysis. Here, the Majority confuses the "closeness of the parties" factor of ordinary duty of care with the "special relationship" determination of Section 315. Moreover, in Gourdine, the Court specifically acknowledged that "foreseeability alone may give rise to liability to a third party." Id. at 754, 955 A.2d at 789. This contradicts the Majority's approach today, which states that special relationship, not foreseeability, controls the determination of duty in cases involving conduct of third persons.

[36] Dobbs's treatise The Law of Torts, published for the first time in 2001, is the successor to Prosser and Keeton on the Law of Torts.

[37] "As numerous courts have pointed out, there is an obvious analogy between the negligent sale of alcohol to a visibly intoxicated person and the tort of negligent entrustment." Buchanan v. Merger Enterprises, Inc., 463 So. 2d 121, 126 (Ala. 1984).

[38] This Court has adopted the doctrine of negligent entrustment from Section 390 of the Second Restatement of Torts, which provides:

One who supplies directly or through a third person a chattel for the use of another whom the supplier knows or has reason to know to be likely because of his youth, inexperience, or otherwise, to use it in a manner involving unreasonable risk of physical harm to himself and others whom the supplier should expect to share in or be endangered by its use, is subject to liability for physical harm resulting to them.

Restatement (Second) of Torts § 390 (1965); see Broadwater v. Dorsey, 344 Md. 548, 554, 688 A.2d 436, 439 (1997) (and cases cited therein).

[39] Although these cases are distinguishable from the present one, I cite them to show the fundamental error in the Majority's holding that a defendant in a negligence action can only owe a duty of care to a member of the public who is harmed by a third person if a special relationship exists.

[40] The Majority claims that it was not foreseeable because it was "not an absolute" that Eaton would drive upon leaving the bar. See Maj. Slip Op. at 11-12. Certainly not every patron who leaves a bar will drive, but that does not make it any less foreseeable that there will be visibly intoxicated patrons who do drive. For the Majority to hold that it is not foreseeable that people will become intoxicated at a bar and then drive home is to ignore the truth of modern society.

As one court explained:

Any reasonable person would foresee that an intoxicated person will act with a lack of prudence, control, and self-restraint. With travel by automobile both commonplace and necessary in today's society, no one may justifiably claim ignorance of the danger posed by one whose abilities and judgment are impaired by alcohol. The harm is both likely and foreseeable, and the societal cost of alcohol-related injuries is enormous.

Largo Corp. v. Crespin, 727 P.2d 1098, 1102 (Colo. 1986).

[41] Commercial vendors in Montgomery County are required to be retrained by an alcohol awareness program every four years. Md. Code (1957, 2011 Repl. Vol.), Article 2B, § 13-01(c)(1)-(2).

[42] See 1 Dan B. Dobbs et al., The Law of Torts § 14, at 29 (2d ed. 2011) ("Courts and writers almost always recognize that another aim of tort law is to deter certain kinds of conduct by imposing liability when that conduct causes harm."); see also Jeffrey S. Quinn, Does Mass Product Tort Litigation Facilitate or Hinder Social Legislative Reform? A Comparative Study of Tobacco Regulation, 9 Rutgers J.L. & Pub. Pol'y 106, 169-70 (2012) ("The deterrent theory of tort law is rather simple: tort law threatens people with having to pay for the injuries they produce; therefore, people will alter their behavior by taking into account the interests of others in a socially desirable and less injury-producing way.").

[43] This discussion brings to mind the counter-argument that if the public policy sketched out by the Legislature so clearly calls for the imposition of dram shop liability, then why has the General Assembly itself not enacted dram shop liability. I address this argument later, and explain why legislative inaction in this case does not inhibit this Court's duty and responsibility to properly determine the common law of Maryland.

[44] The Majority claims that the duty of care I advocate for here cannot be limited to commercial vendors of alcohol and would necessarily be expanded to include all social hosts such as church groups and charitable organizations. This is not true. Yes, the argument can be made that it is just as foreseeable for an intoxicated person to leave a social host and drive as it is for an intoxicated person to leave a tavern and drive. Yet, I do not base this duty of care solely on foreseeability. As I have explained, I am willing to impose this duty of care on commercial vendors of alcohol based on the sum of all the relevant factors in the duty calculus. In this regard, there are differences in the other factors that could produce a different outcome regarding social host liability. The most obvious of these is the complete lack of any indication from the General Assembly that social hosts are to play a role in limiting this State's drinking and driving problem. The legislature has made it a criminal offence for a bar to serve a person who is "visibly under the influence" of alcohol. It is not a crime for a social host to do this. Commercial vendors of alcohol must go through specific training in serving alcohol and observing its affects on the drinker. Social hosts do not have to do this. In this State, then, there may not be a policy of preventing future harm caused by social hosts, the conduct of social hosts may not be considered morally blameworthy in the community, and imposing a new duty on social hosts may create to large of a burden. These are factors that would need to be evaluated in the specific context of social host liability—with which we are not concerned here.

Similarly, the duty I advocate for here should not be read to support a cause of action on behalf of the visibly intoxicated patron as against the tavern. I see this duty arising from the sum of all the factors in the duty calculus, and that sum is undoubtedly different when those factors are examined in the context of deciding whether a duty is owed to the visibly intoxicated patron. In part, my analysis of these factors has been informed by legislative enactments. The General Assembly has very clearly found that both commercial vendors of alcohol and drunk drivers are part of the problem currently facing this State. The legislature has passed a series of laws targeted at preventing bars from serving visibly intoxicated patrons and at stopping intoxicated patrons from driving. In this regard, both the General Assembly and this Court have been consistent in explaining that the purpose behind these laws is to protect the public, and they are not designed to protect the intoxicated driver. See, e.g., Md. Code (1957, 2011 Repl. Vol.), Article 2B, § 1-101(a)(3) ("The restrictions, regulations, provisions and penalties contained in this article are for the protection, health, welfare and safety of the people of this State."); Motor Vehicle Admin. v. Shrader, 324 Md. 454, 464, 597 A.2d 939, 943 (1991) (in rejecting driver's effort to invoke statute for his benefit, Court said: "We have consistently recognized that the statutory provisions enacted to enforce the State's fight against drunken driving . . . were enacted for the protection of the public and not primarily for the protection of the accused."). Thus, although there is a clear policy in this State to prevent future harm caused by drunk drivers, that policy was never designed to protect the intoxicated driver. Indeed, keeping in mind that a goal of tort theory is to create proper incentives to alter injurious behavior, Dobbs, § 14, at 29, it would be perverse to claim that we are preventing future harm caused by drunk drivers but simultaneously rewarding drunk drivers with a cause of action arising from their drunkenness. Our societal sense of personal responsibility forecloses any such result. In contrast, I urge that we impose a duty in this case because the bar's conduct, in comparison to the innocent third party victim, is morally blameworthy.

[45] For examples of cases where we changed the common law, see Tracey v. Solesky, 427 Md. 627, 50 A.3d 1075 (2012) (holding owners of pit bulls strictly liable for dog bites); Bozman v. Bozman, 376 Md. 461, 830 A.2d 450 (2003) (completely abrogating doctrine of interspousal immunity); Boblitz v. Boblitz, 296 Md. 242, 462 A.2d 506 (1983) (abrogating doctrine of interspousal immunity in negligence claims); Moxley v. Acker, 294 Md. 47, 447 A.2d 857 (1982) (permitting action of forcible detainer even when force is not present); Adler v. Am. Standard Corp., 291 Md. 31, 432 A.2d 464 (1981) (recognizing tort of abusive or wrongful discharge); Lusby v. Lusby, 283 Md. 334, 390 A.2d 77 (1978) (abrogating doctrine of interspousal immunity for intentional torts); Harris v. Jones, 281 Md. 560, 380 A.2d 611 (1977) (recognizing tort of intentional infliction of emotional distress).

[46] In reaching this conclusion, Hatfield relied upon an 1882 case Dunlap v. Wagner, 85 Ind. 529 (1882). Hatfield also cited several product liability cases from the 19th century and early 20th century, including Thomas v. Winchester, 6 N.Y. 397 (1852) and Flaccomio v. Sysink, 129 Md. 367, 100 A. 510 (1916), as well as, some English cases of the same vintage. Hatfield concluded that, "Under the common law it is not an actionable wrong either to sell or to give intoxicating liquors to an able-bodied man." Hatfield v. State, 197 Md. 249, 255, 78 A.2d 754, 757 (1951) (citation and quotation marks omitted).

[47] For examples of courts which also discussed these factual differences between life in the 1800s and modern society when recognizing a cause of action for dram shop liability, see Buchanan, 463 So. 2d at 125; Shannon v. Wilson, 947 S.W.2d 349, 352 (Ark. 1997); Grayson Fraternal Order of Eagles v. Claywell, 736 S.W.2d 328, 331 (Ky. 1987); Nehring v. LaCounte, 712 P.2d 1329, 1334 (Mont. 1986); Lopez v. Maez, 651 P.2d 1269, 1273 (N.M. 1982); Brigance v. Velvet Dove Restaurant, Inc., 725 P.2d 300, 304 (Okla. 1986); Walz v. Hudson, 327 N.W.2d 120, 124 (S.D. 1982) (Wollman, J., concurring).

[48] As one court explained the negative effects that alcohol can have on the ability to drive: "we know by common knowledge that alcohol distorts perception, slows reaction, and impairs motor skills, while operation of an automobile requires clear perception, quick reaction, and adept motor skills." El Chico Corp. v. Poole, 732 S.W.2d 306, 311 (Tex. 1987); see also Buchanan, 463 So. 2d at 126 ("Common experience dictates that when a person is imbibing alcoholic beverages that person reaches a level of toxicity after which continued imbibing will render him unable to operate an automobile safely.").

[49] As one Court who questioned the usage in modern society of an old common law rule designed for the "horse and buggy" days explained:

The automobile is a constant reminder of a changed and changing America. It has made a tremendous impact on every segment of society, including the field of jurisprudence. In the "horse and buggy" days the common law may not have been significantly affected by the sale of liquor to an intoxicated person. The common law of nonliability was satisfactory. With today's car of steel and speed it becomes a lethal weapon in the hands of a drunken imbiber. The frequency of accidents involving drunk drivers are commonplace. Its affliction of bodily injury to an unsuspecting public is also of common knowledge. Under such circumstances we are compelled to widen the scope of the common law.

Brigance, 725 P.2d at 304; see also Ontiveros v. Borak, 667 P.2d 200, 207 (Ariz. 1983) ("But the situation then and the problem in today's society of the imbiber going upon the public highways and operating a machine that requires quick response of mind and muscle and capable of producing mass death and destruction are vastly different.") (citation omitted); Lopez, 651 P.2d at 1273 ("A common law doctrine which developed in the horse and buggy days may be out of tune with today's society.").

[50] The expansion of negligence beyond these "`public' callings" "coincided in a marked degree with the Industrial Revolution; and it very probably was stimulated by the rapid increase in the number of accidents caused by industrial machinery, and in particular by the invention of railways." Keeton, § 28, at 161.

[51] Judge Cardozo's storied opinion in MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050 (1916) is largely given credit for expanding the reach of negligence to hold a manufacturer of a dangerous product liable to the ultimate user of the product. See Kenton, § 96, at 682-83. Maryland has recognized the importance of this opinion. See, e.g., Volkswagen of Am., Inc. v. Young, 272 Md. 201, 215, 321 A.2d 737, 744 (1974) ("Since the time of MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050 (1916), it has been generally held that an automobile manufacturer or supplier, like the manufacturer or supplier of other products, is liable in negligence to an ultimate user of the vehicle for a construction defect of which he was or reasonably should have been aware, which was not obvious to the user, and which causes a collision and resulting injuries.").

[52] For examples of cases that also discussed this legal development of negligence, from its beginnings in the 1800s to modern society, when recognizing a cause of action for dram shop liability, see Buchanan, 463 So. 2d at 125-26; Shannon, 947 S.W.2d at 352.

[53] Another seven states, though not expressly discussing and rejecting the old common law rule of proximate causation, have implicitly done so by their recognition of a cause of action for dram shop liability. See Rong Yao Zhou v. Jennifer Mall Restaurant, Inc., 534 A.2d 1268, 1276 (D.C. 1987); Davis v. Shiappacossee, 155 So. 2d 365, 367 (Fla. 1963); Thrasher v. Leggett, 373 So. 2d 494, 497 (La. 1979); Sampson v. W. F. Enters., Inc., 611 S.W.2d 333, 335-37 (Mo. Ct. App. 1980); Walz, 327 N.W.2d at 123); Callan v. O'Neil, 578 P.2d 890, 893 (Wash. Ct. App. 1978); Bailey v. Black, 394 S.E.2d 58, 60-61 (W. Va. 1990). This brings the total to forty-one states.

[54] "Common sense, common experience and authority all combine to produce the irrefutable conclusion that furnishing alcohol, consumption of alcohol and subsequent driving of a vehicle which is then involved in an accident are all foreseeable, ordinary links in the chain of causation leading from the sale to the injury." Ontiveros, 667 P.2d at 207; see also Nehring, 712 P.2d at 1335 ("[C]onsumption of the alcoholic beverages served, subsequent driving, and the likelihood of an injury-producing accident are foreseeable intervening acts which do not relieve the tavern operator of liability for negligence"); Vesely v. Sager, 486 P.2d 151, 159 (Cal. 1971) ("If such furnishing is a proximate cause, it is so because the consumption, resulting intoxication, and injury-producing conduct are foreseeable intervening causes. . . .").

[55] I share the views of Judge Rita Davidson, who dissented from the majority holding, saying that

In my view, it is common knowledge that the problems associated with drunk driving have presently reached massive proportions. Just and fair solutions additional to those presently existing are required if societal interests are to be protected and preserved. As the majority itself notes, in the 30 years since Hatfield, courts in a majority of other jurisdictions that have considered the problem "have departed from the early common law rule and have imposed civil liability, independent of statute, upon sellers of alcoholic beverages for damages caused by their intoxicated patrons." In light of changing conditions, I, like these other courts, am convinced that the common law rule has become unsound in the circumstances of modern life. I would hold that a cause of action exists against licensed vendors of intoxicating liquors for the tortious acts of minor or intoxicated patrons to whom they sell alcoholic beverages in violation of Maryland Code. . . .

Felder v. Butler, 292 Md. 174, 186, 438 A.2d 494, 500-01 (1981) (Davidson, J., dissenting).

[56] See also Goldstein v. State, 339 Md. 563, 570, 664 A.2d 375, 378 (1995) ("[T]he mere fact that the General Assembly has declined to adopt a particular proposal does not preclude this Court from incorporating the substance of that proposal into the common law or our interpretation of a statute."); Auto. Trade Ass'n of Md., Inc. v. Ins. Com'r, 292 Md. 15, 24, 437 A.2d 199, 203 (1981) ("[T]he fact that a bill on a specific subject fails of passage in the General Assembly is a rather weak reed upon which to lean in ascertaining legislative intent."); Cicoria v. State, 89 Md. App. 403, 411 n.9, 598 A.2d 771, 775 n.9 (1991), aff'd, 332 Md. 21, 629 A.2d 742 (1993) ("Trying to determine what the legislature intended (or did not intend) by rejecting those bills is no easy assignment . . . [and] `the failure of a committee [of the legislature] to act favorably on a proposed bill should not be relied upon, in the absence of an indication as to the reason for the failure, to ascertain legislative intent.'" (alteration in original) (citation omitted)); Suessmann v. Lamone, 383 Md. 697, 748, 862 A.2d 1, 31 (2004) (Bell, C.J. dissenting) ("Maryland law is clear, legislative silence on a particular subject is not evidence, one way or the other, of legislative intent as to that subject.").

[57] In a committee, the power of a few—in combination with the concentrated lobbying of interest groups—has the power to kill a bill for any myriad of reasons. As the Arizona Supreme Court explained in recognizing dram shop liability after two bills had failed in a legislative committee:

There are many reasons why bills are not reported out of committee. For example: the bill may be opposed by a particular committee member or by the chairperson; efforts of special interest groups and lobbyists may be successful at the committee level; or a lack of time for consideration of the bill may prevent passage by the committee.

Ontiveros, 667 P.2d at 212. The failure of the bills in this case to make it out of committee—especially when the committee does not even vote on the bill—is not reflective of the will of the people as a declaration of our public policy.

[58] As one court explained, such reasoning is a "Neanderthal approach to causation." Nehring, 712 P.2d at 1335.

Page 39

        [56 Ill.2d 96]

Page 40

        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

Page 41

        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

Page 42

        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.

[133] COUNSEL

O'Dorisio, Wedell & Wade and Jeffrey P. Wade for Plaintiff and Appellant.

[134] Stutz, Rentto, Gallagher & Artiano, Robert E. Gallagher, Jr., Maureen L. Shellove, Post, Kirby, Noonan & Sweat, R. Bruce Wayne and Sandra L. Lackey for Defendants and Respondents.

OPINION

STANIFORTH, Acting P.J.

Plaintiff Richard Lee Cohen questions by this appeal the correctness of a summary judgment entered in favor of store owner Southland Corporation, its Linda Vista Road 7-Eleven store franchisee, James R. Simmons and its employee, Timothy G. Wolfe, all defendants in this personal injury action. The dispositive issues are (1) whether under the evidence offered in the motion, foreseeability remained a question of fact for a jury; and (2) whether defendants established as a matter of law they have fulfilled any duty of care owed. (Bigbee v. Pacific Tel & Tel. Co. (1983) 34 Cal.3d 49, 52 [192 Cal. Rptr. 857, 665 P.2d 947].)

FACTS

In the early morning hours of May 14, 1978, Cohen drove into the parking lot of the Linda Vista Road 7-Eleven store. He intended to buy a sandwich. While still in his car, Cohen was approached by a man displaying a revolver. He stated he intended to rob the store, take Cohen hostage and use Cohen's car as the getaway vehicle. The man proceeded into the store, with Cohen following. The clerk on duty that night was defendant Wolfe. Once inside, the robber approached Wolfe at the counter and displayed the gun. Cohen then seized the robber from behind. In the ensuing struggle the man shot Cohen in the stomach. Wolfe, observing the struggle, retreated to the back office, barricaded its door and did not emerge until the police arrived. The assailant escaped and remains at large.

TRIAL COURT PROCEEDINGS

Cohen filed a negligence action against Southland, Simmons and Wolfe. Southland's demurrer to Cohen's complaint was sustained with leave to amend. The amended complaint alleged defendants negligently failed to protect store patrons from assault or other threatening behavior of would-be robbers. The complaint also charged Wolfe negligently and carelessly failed to aid Cohen after Cohen was shot.

Defendants moved for summary judgment. In support of the motion, Southland offered the declaration of Edward Perkins, assistant director of 7-Eleven store security. Perkins asserted — based on his review of Southland's files of all criminal incidents in franchise stores — there was a single [135] criminal incident at the Linda Vista Road store between February 1, 1972, and May 14, 1978. This was a noninjury armed robbery which occurred December 3, 1976. Perkins also detailed Southland's policy of offering an extensive security program to franchisees, including continuing education in robbery prevention technique and methods for dealing with in-progress robberies. He suggested 7-Eleven stores regularly use security devices such as strong boxes for excess cash, warning labels on store windows advising of minimal cash on hand, and a balanced lighting system allowing store clerks to observe outside activities and persons outside to view activities within. Additionally, the stores customarily stack merchandise to a level of not more than four and one-half feet to allow unobstructed vision of the store's interior and parking lot.

Perkins mentioned Simmons had installed a video camera and recording device to monitor cash register sales; he did not suggest Simmons had participated in Southland's extensive security training program, nor did he state the Linda Vista Road 7-Eleven store used the customary security devices he detailed.

Declarations of defendants Simmons and Wolfe also were the basis for the motion. Simmons claimed from the date of his ownership of the Linda Vista Road store franchise, July 1976 to May 14, 1978, there had been a single noninjury criminal incident — "a situation where a man demanded and received the money from the cash register" — not involving a weapon. He stated at the time of the incident the interior of the store and the parking lot were equipped with lights, the store had a video-surveillance system and a window sign indicating a limited amount of cash was kept on hand at night. He also noted a police substation is located one-half mile from the store. During the late night hours the store is visited by police on an average of once an hour on an irregularly timed basis.

Wolfe stated the video-surveillance system was in operation the night of the incident and the interior of the store and the parking lot were illuminated. He also stated he did not notice the robber had a gun until the robber stepped to the store counter. At the same moment Cohen grabbed the robber from behind. Wolfe then related what happened next: "The plaintiff and the suspect struggled, knocking the cash register to the ground. At that point, I stepped back to get out of the way of the cash register and after taking two or three steps backward, I heard a shot. I did not see the gun go off. After hearing the shot, I ran to the back room of the store and locked the door. The back room had a television monitor that was linked to the camera device which was in the area of the cash register. On the television monitor, I could see the cash register area and a portion of the aisles of the store. I feared that the gunman was going to come into the back room so I barricaded [136] the door with a filing cabinet. After barricading the door, I looked back on the television monitor and I did not see the suspect. I did not know whether or not the suspect was still in the store because the camera did not view all of the interior of the store, but rather only the area around the cash register and front door. I therefore did not use the telephone that was in the back room for fear the suspect would hear me. I continued to look at the television monitor and saw the plaintiff get up, walk behind the counter, and then walk toward the front door. A car drove up and then drove away. I then observed another customer walk into the store, and walk behind the counter and use the telephone. Approximately three to five minutes after the shooting, I observed on the television monitor that the police arrived. I picked up the telephone extension in the back room and talked with the police dispatcher who then informed the investigating police officer that I was in the back room. At that point I opened up the door and talked with the police. During the entire incident, up to the point where I saw the police arrive, I did not know where the suspect was and I feared for my safety." According to Wolfe, throughout the incident the robber said nothing.

In opposition to defendants' summary judgment motion Cohen charged in his declaration the Linda Vista Road store was customarily "not very well lit" and "the only light there was on May 14, 1978 at night emanated from the inside of the store." Cohen recalled the inside lights lit only the walk in front of the store; the 7-Eleven sign on the store's roof and the 7-Eleven sign by the street were both turned off. Additionally, there were "no lights on the side of the building that were lit, nor was there any light coming from the Exxon station (which was closed) to the east or the Mexican Restaurant (which was closed) to the west." Cohen also said the store's manager had informed him prior to the shooting — during an interview for a graveyard shift opening for which Cohen had applied — the store was periodically robbed.

Cohen's counsel's investigator by declaration related in 1975 Southland experienced in excess of one robbery per store per year nationwide; in its Pacific Division (which includes San Diego), the number of robberies exceeded the corporate average. Clerk Wolfe's deposition admitted he received no training in robbery or violence prevention techniques upon being hired as the sole clerk for the 10:30 p.m. to 6:30 a.m. shift, beyond the admonition to give a robber anything he or she wanted. Jerry Lowery, Southland's head security officer, stated corporate store employees are required to participate in Southland's security training program but franchise store employees are not; Southland had no means of monitoring franchisee participation.

Finally, Cohen relied on a 1975 study funded in part by Southland which demonstrated 7-Eleven store robberies could be significantly reduced (a 30 [137] percent reduction was achieved under the study's controlled conditions) by prevention procedures such as the strategic placement of signs announcing a low amount of cash-on-hand in the store, improved lighting in the parking lot and the training of store owners, managers and clerks in a series of robbery prevention procedures and violence prevention techniques.

The trial court granted summary judgment for defendants. Cohen appeals.

DISCUSSION

I

(1) On a summary judgment motion, "[t]he moving party bears the burden of furnishing supporting documents that establish the claims of the adverse party are entirely without merit on any legal theory." (Lipson v. Superior Court (1982) 31 Cal.3d 362, 374 [182 Cal. Rptr. 629, 644 P.2d 822].) Summary judgment should be granted only where "there is no triable issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." (Code Civ. Proc., § 437c, subd. (c).) (2) "`The affidavits of the moving party are strictly construed and those of his [or her] opponent liberally construed, and doubts as to propriety of granting the motion should be resolved in favor of the party opposing the motion.' And, conflicts in affidavits are to be resolved in favor of the nonmoving party." (Albertini v. Schaefer (1979) 97 Cal. App.3d 822, 831 [159 Cal. Rptr. 98], citations omitted. See also Slobojan v. Western Travelers Life Ins. Co. (1969) 70 Cal.2d 432, 436-439 [74 Cal. Rptr. 895, 450 P.2d 271].) With these standards for granting a summary judgment in mind, we review the trial court's implicit determination in granting defendant's summary judgment motion that, under all the circumstances, there was no legal duty owed to Cohen to protect him from criminal activity on the 7-Eleven premises.

II

(3) It is settled law in California that an owner or occupier of land held open for business purposes has a duty to protect visitors from the wrongful acts of third persons which threaten the safety of visitors to the premises when he or she has reasonable cause to anticipate such acts and the probability [138] of resulting injury. (Taylor v. Centennial Bowl, Inc. (1966) 65 Cal.2d 114, 121 [52 Cal. Rptr. 561, 416 P.2d 793].)^[1]

A legal duty to use due care is an essential element of a negligence action. (Bigbee v. Pacific Tel. & Tel. Co., supra, 34 Cal.3d 49, 53, fn. 3.) (4) The existence of a legal duty of care is a question of law (Thompson v. County of Alameda (1980) 27 Cal.3d 741, 750 [167 Cal. Rptr. 70, 614 P.2d 728, 12 A.L.R.4th 701]), "to be determined by reference to the body of statutes, rules, principles and precedents which make up the law; and it must be determined only by the court." (Prosser, Torts (4th ed. 1971) p. 206, fn. omitted.)

Defendants contend it was not foreseeable Cohen would be injured as a result of third party criminal activity at the Linda Vista Road 7-Eleven store and therefore owed Cohen no duty of care. (5) Foreseeability of the harm is of primary importance in establishing the element of duty (Gomez v. Ticor (1983) 145 Cal. App.3d 622, 628 [193 Cal. Rptr. 600]; Musgrove v. Ambrose Properties (1978) 87 Cal. App.3d 44, 52 [150 Cal. Rptr. 722]). It is ordinarily a question of fact for the jury, and "decided as a question of law only if, `under the undisputed facts there is no room for a reasonable difference of opinion.'" (Bigbee v. Pacific Tel. & Tel. Co., supra, 34 Cal.3d at p. 56.)

(6) Foreseeability is not coterminous with duty. It is one of several factors to be balanced in determining whether a duty exists in a particular case. The other factors, articulated in Rowland v. Christian (1968) 69 Cal.2d 108, 113 [70 Cal. Rptr. 97, 443 P.2d 561, 32 A.L.R.3d 496], are: "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 [139] 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."

We examine these factors in IV infra.

The Restatement Second of Torts, section 344, comment (f) details the factual circumstances under which a duty of care arises: "Since the [owner or occupier of land] is not an insurer of the visitor's safety, he [or she] is ordinarily under no duty to exercise any care until he [or she] knows or has reason to know that the acts of the third person are occurring, or are about to occur. He [or she] may, however, know or have reason to know, from past experience, that there is a likelihood of conduct on the part of third persons in general which is likely to endanger the safety of the visitor even though he [or she] has no reason to expect it on the part of any particular individual. If the place or character of his [or her] business, or his [or her] past experience, is such that he [or she] should reasonably anticipate careless or criminal conduct on the part of third persons, either generally or at some particular time, he [or she] may be under a duty to take precautions against it. ..." (Italics added.)

III

(7a) It is Southland's position Cohen's injury was unforeseeable because no prior injury-producing armed robbery occurred at the Linda Vista Road store in the preceding six years. Cohen responds by pointing to the conflict in the facts as to the frequency of prior robberies at Simmons' store. Cohen swore Simmons told him the store was periodically robbed; Simmons reported only one previous unarmed, noninjury robbery; Perkins, assistant director of 7-Eleven store security, reported a single prior armed robbery occurred. Such conflicts must be resolved in favor of Cohen, the nonmoving party. We presume for the purpose of determining foreseeability that several prior robberies occurred.

Even if defendants established, without question, but a single prior robbery occurred, the fact of a prior incident at that particular store coupled with the uncontroverted statistic on 7-Eleven robberies generally made foreseeability of a robbery of Simmons' 7-Eleven store a triable issue of fact. It is unclear whether the one robbery or more per store per year statistic represents armed robberies. However, the robbery prevention study commissioned by Southland (relied on by Cohen) notes 80 percent of the 97 7-Eleven store robberies which were the subject of the study were armed robberies. An armed robbery of the 7-Eleven store therefore appears to have been statistically foreseeable. It may also have been foreseeable that a customer, [140] present in the store during an armed robbery, would be injured by the robber.^[2] (8) As the Supreme Court reminded in Bigbee v. Pacific Tel. & Tel. Co., supra, 34 Cal.3d 49, 57-58: "[W]hat is required to be foreseeable is the general character of the event or harm ... not its precise nature or manner of occurrence." (7b) The Cohen shooting fell within the scope of foreseeable harm, i.e., injury of a store customer present during a criminal act. (See Gomez v. Ticor, supra, 145 Cal. App.3d 622, 628, fn. 1.)

In Gomez v. Ticor, supra, the appeal court found a patron's injury by a third party on business premises arguably foreseeable by the premises owner. Gomez involved the fatal shooting of a patron of an office building's commercial parking structure. The decedent had entered the garage as an armed robbery was in progress and was shot by one of the robbers. On the basis of evidence of the general unsafe character of the neighborhood and of numerous thefts and other crimes which had occurred in the building (not in the garage) in the three years before the attack, the Gomez court ruled the plaintiff had raised a triable issue of fact as to foreseeability of the injury. Cohen has an even stronger argument for foreseeability than the Gomez plaintiff, because the self-same criminal activity at issue in the instant case which led to Cohen's injury had occurred before in the Linda Vista Road store.

The California Supreme Court in Bigbee v. Pacific Tel. & Tel. Co., supra, 34 Cal.3d 49, evidenced a reluctance to remove foreseeability questions from the jury. The Bigbee court reversed a grant of summary judgment, ruling a triable issue of fact existed as to the foreseeability of the risk an automobile might crash into a telephone booth and injure its occupant, where the defendant's evidence placed the booth in a parking lot 15 feet from the side of a major thoroughfare and near a driveway. (34 Cal.3d at p. 58.) The court concluded: "Considering the case law and the circumstances of this case, this court cannot conclude as a matter of law that injury to plaintiff, inflicted by negligent or reckless third party drivers, was unforeseeable. `[J]ust as we may not rely upon our private judgment on this [141] issue, so the trial court may not impose its private judgment upon a situation, such as this, in which reasonable minds may differ.'" (Id., at p. 59, citation omitted and italics added.)

Added to the allegation of previous robberies of Simmons' store and the statistic demonstrating the alarming frequency of robberies in 7-Eleven stores generally, and a general reluctance to remove foreseeability questions from the jury, is a further reason for finding a triable issue of fact as to the foreseeability of injury here. In the very operation of an allnight convenience store, defendants may be said to have created "an especial temptation and opportunity for criminal misconduct," thus increasing the foreseeability of injury resulting from third party misconduct in the early morning hours. (Prosser, Torts (4th ed. 1971) p. 174.)

Cohen makes an unsupported assertion a robbery is five times more likely to occur at night than in the daylight hours. However, common experience and reason support the conclusion more robberies occur at night; fewer people are around to interfere with or witness the crime. Darkness conceals the robber's getaway. A 24-hour convenience store makes an attractive target for night time criminal activity. Gomez v. Ticor, supra, 145 Cal. App.3d at page 629, held temptation to and opportunity for crime was created by operation of a parking structure thus increasing foreseeability of criminal attack within such structure.

Finally, as the Gomez court so aptly stated: "The California Supreme Court has recently reiterated that `"foreseeability is not to be measured by what is more probable than not, but includes whatever is likely enough in the setting of modern life that a reasonably thoughtful person would take account of it in guiding practical conduct."' [Citations.] Parking structures are relatively new fixtures in `the setting of modern life.' Accordingly, we are not bound by any specific precedent in determining whether attacks on patrons of these structures are foreseeable. Rather, this determination must come as the result of a realistic appraisal of the foreseeability of crime in any such structure; such an appraisal is the jury's task." (Ibid.) Convenience stores are also "relatively new fixtures `in the setting of modern life.'" (Ibid.) As in Gomez, a jury must in light of all the facts, realistically appraise whether customer injury during the course of a Linda Vista Road 7-Eleven store robbery was foreseeable.

IV

Defendants contend, assuming arguendo Cohen's injury was foreseeable, the other factors in the duty analysis weigh adversely to him and dictate a no duty finding. Defendants' summation of the relevant case law is correct. [142] (9) Whenever the duty sought to be imposed upon the defendant would place an extremely onerous burden on both the defendant and the community, and where the defendant is not morally culpable, and where the proposed duty and the measures to be applied in discharge of the duty defy exact delineation and suffer from inherent vagueness, courts have declined to impose a duty when prior similar events did not make the harm highly foreseeable. (See Gomez v. Ticor, supra, 145 Cal. App.3d at pp. 631-632; Totten v. More Oakland Residential Housing, Inc. (1976) 63 Cal. App.3d 538, 545 [134 Cal. Rptr. 29]; Rogers v. Jones (1976) 56 Cal. App.3d 346, 352 [128 Cal. Rptr. 404].)

This case, for the following reasons, does not fall within the factual boundaries of cases such as Rogers v. Jones, supra, and 7735 Hollywood Blvd. Venture v. Superior Court (1981) 116 Cal. App.3d 901 [172 Cal. Rptr. 528], which require repeated, prior similar incidents — i.e., harm that is highly forseeable — before a duty may be imposed. First, imposition of a duty to take reasonable precautions against early morning robberies of the Linda Vista Road store would not place an extremely onerous burden on both the defendant and the community, as defendants suggest. Defendants characterize Cohen's insistence on such a duty as tantamount to a requirement they hire full-time armed security guards in the hope of deterring nighttime crime. They argue imposing such a duty would result in 7-Eleven franchises' economic ruin, for "[i]t takes no elaborate economic analysis to conclude that small, independently-owned stores run on thin profit margins."

Defendants misapprehend the ramifications of a duty finding here. Imposition of a duty to make Simmons' store reasonably safe against criminal activity is not coincident with requiring the hiring of armed guards. Rather, a jury could determine the duty was more than adequately fulfilled by the less onerous, relatively inexpensive robbery and/or violence deterrence measures described in the Southland-commissioned study, e.g., making sure the store itself and its parking lot were well illuminated, and training store employees in methods for dealing with in-progress robberies. Such measures contributed to a 30 percent reduction in store robberies over the course of the Southland-commissioned study.

The community, in fact, would benefit by imposition of a duty here. As Cohen suggests, keeping a store open in the late evening and early morning hours invites criminal activity. (10) It is only fair and equitable the reasonable costs of protecting store patrons from criminal activity be borne by the owners, the operators and indirectly the patrons of convenience stores and not by the community at large. It is also not unfair that patrons pay a few cents more for items they purchase from such a store and gain the [143] assurance of reasonable protection against criminal activity while shopping there, rather than allow the emotional and physical burden of a criminal attack to fall on the store patron who inadvertently finds himself or herself in the middle of a robbery invited by the store's failure to employ minimal crime deterrence measures. (See Butler v. Acme Markets, Inc. (1982) 89 N.J. 270 [445 A.2d 1141].)

Second, implicit in the foregoing discussion is disagreement with defendants' position the measures to be applied in discharge of the proposed duty defy exact delineation and suffer from inherent vagueness. True, the duty may be fulfilled by various means, and the sufficiency of these means may often be decided by "a lay jury, after the fact." (7735 Hollywood Blvd. Venture v. Superior Court, supra, 116 Cal. App.3d at p. 905.) There is no reason, however, to doubt the capability of the jury to carry out instructions — if such defense is tendered — and limit its inquiry to deciding whether the requisite minimal duty has been satisfied. (Gomez v. Ticor, supra, 145 Cal. App.3d at p. 633.)

(11) Cohen does not contend the injury of a patron in the course of an armed robbery of the Linda Vista Road 7-Eleven was highly foreseeable. He has alleged — and we have taken as true for the purpose of this appeal — at least several prior robberies occurred at Simmons' store. Thus, the degree of foreseeability here is greater than was present in Gomez, where the plaintiff did not allege a single instance of prior assault on the premises. Gomez held the foreseeability there alleged, if confirmed by a jury, would support a minimal duty only to provide the "first line of defense" against a criminal attack, not vague and onerous duties directed at preventing an attack. In the case at bench, providing the "first line of defense" is all that is at issue. We therefore hold if Cohen proves, as he has alleged, his injury was foreseeable, defendants owed him a minimal duty of care.

Cohen has defined the duty he proposes and shown the effectiveness of means to discharge it. The Southland-commissioned study demonstrates if defendants take certain measures defendants will reduce the incidence of robberies and thereby afford store patrons reasonable protection.

V

(12) Defendants have not conclusively (as a matter of law) demonstrated they have fulfilled a minimal duty of care and are therefore entitled to a judgment as a matter of law. From the moving papers it appears Southland has instituted an extensive security training program and 7-Eleven stores regularly use security devices designed to deter robberies. Cohen introduced evidence, however, that Wolfe, the on-duty clerk the night of the incident, [144] received no security training. Additionally, defendants have not alleged the Linda Vista Road store implemented the customary 7-Eleven store security measures, such as a balanced lighting system allowing store clerks to observe outside activities and persons outside to view activities within. The Southland-commissioned study showed improved parking lot lighting contributed to a decline in 7-Eleven store robberies. Yet, there was directly conflicting evidence regarding store lighting on the night of the incident. Cohen recalled the store was "not very well lit" and on the night in question the parking lot was dark, the 7-Eleven roof and street signs were turned off, and the only light in the general vicinity emanated from inside the store. Wolfe insisted the parking lot was illuminated but did not detail the source(s) of the illumination.

The adequacy of defendants' measures to protect store patrons from assault or other threatening behavior of would-be robbers is therefore also a factual issue to be resolved by a jury.

VI

Lastly, Cohen contends defendants have not established, as a matter of law, Wolfe had no duty to rescue Cohen after the shooting. (13) The general rule declares a person who has not created a peril is not liable in tort merely for failure to take affirmative action to assist or protect another unless there is some relationship between them which gives rise to such a duty. (Rest.2d Torts, § 314, p. 116; 4 Witkin, Summary of Cal. Law (8th ed. 1974) Torts, § 554, p. 2821.) There was no claim of a special relationship between Wolfe and Cohen which gave rise to the duty to rescue. Wolfe stated in his declaration he feared for his life when the robber displayed the weapon and Cohen grabbed the robber from behind. After retreating to the rear office to avoid being shot, Wolfe continued to fear for his life. He thought the robber was still in the store. In light of Wolfe's patently reasonable fear for his own safety we decline to depart from the general no-duty rule. The trial court properly entered summary judgment on Cohen's fourth cause of action for Wolfe's charged negligent failure to rescue.

DISPOSITION

The summary judgment is reversed as to all but Cohen's fourth cause of action upon which the summary judgment is affirmed.

Wiener, J., and Work, J., concurred.

[1] Appellate decisions of federal and other state courts are virtually unanimous in holding possessors of business premises owe a duty of care to customers to take affirmative steps to control a third party's foreseeable wrongful conduct. (See, e.g., Kenny v. Southeastern Pennsylvania Transp. (3d Cir.1978) 581 F.2d 351, cert. den. 439 U.S. 1073 [59 L.Ed.2d 35, 99 S.Ct. 845]; Hart v. Pennsylvania Turnpike Com'n (W.D. Pa. 1977) 438 F. Supp. 573; Morgan v. Bucks Assoc. (E.D. Pa. 1977) 428 F. Supp. 546; Foster v. Winston-Salem Joint Venture (1981) 303 N.C. 636 [281 S.E.2d 36]; Nallan v. Helmsley-Spear, Inc. (1980) 50 N.J.2d 507 [407 N.E.2d 451]; Alonge v. Rodriquez (Wis. 1979) 279 N.W.2d 207; Whelchel v. Strangways (1976) 275 Ore. 297 [550 P.2d 1228]; Jones v. Oberg (1981) 52 Ore.App.601 [628 P.2d 773]; Murphy v. Penn Fruit Co. (1980) 274 Pa. Super. 427 [418 A.2d 480]; Walkoviak v. Hilton Hotels Corp. (Tex.Civ.App. 1979) 580 S.W.2d 623; Carswell v. Southeastern Pa. Transp. Authority (1978) 259 Pa.Super 167 [393 A.2d 770]; Parslow v. Pilgrim Parking, Inc. (1977) 5 Mass. App. 822 [362 N.E.2d 933]; Morris v. Barnette (Tex.Civ.App. 1977) 553 S.W.2d 648; Atamian v. Supermarkets General Corp. (1976) 146 N.J. Super. 149 [369 A.2d 38]; and Stalzer v. European American Bank (1982) 113 Misc.2d 77 [448 N.Y.S.2d 631].)

[2] Defendants are in error in arguing an armed robbery resulting in injury was necessarily unforeseeable because the prior robbery they admit occurred was a noninjury incident. To state this argument is to refute it. In making this point, defendants rely on cases which rule against foreseeability where prior criminal activity was wholly dissimilar to that which resulted in plaintiffs' injury. These cases actually support Cohen's position. Wingard v. Safeway Stores, Inc. (1981) 123 Cal. App.3d 37 [176 Cal. Rptr. 320], for example, involved a rape at defendant's warehouse. The court noted the dissimilarity of the crime of rape to the crime of theft; the only evidence of prior third party criminal acts relied upon was of prior thefts. The court specifically determined defendant owed no duty to protect against rape where there had been no previous assaults, and the existence of previous thefts did not give reasonable cause to anticipate an assault. Under the Wingard analysis, the defendants owed a duty to protect against an injury-producing armed robbery where there had been a previous armed robbery but not where there had only been previous acts of vandalism.

Young, O'Rourke, Bruno & Bunn (by James C. Bruno), for plaintiff.

Martin, Bohall, Joselyn, Halsey, Rowe & Jamieson, P.C. (by William G. Jamieson), for defendant Siegrist.

Decided April 1, 1976. Rehearing denied 397 Mich 958.

LEVIN, J.

There is ample evidence to support the jury determination that David Siegrist failed to exercise reasonable care after voluntarily coming to the aid of Richard Farwell and that his negligence was the proximate cause of Farwell's death. We are also of the opinion that Siegrist, who was with Farwell the evening he was fatally injured and, as the jury found, knew or should have known of his peril, had an affirmative duty to come to Farwell's aid.^[1]

285*285 I

On the evening of August 26, 1966, Siegrist and Farwell drove to a trailer rental lot to return an automobile which Siegrist had borrowed from a friend who worked there. While waiting for the friend to finish work, Siegrist and Farwell consumed some beer.

Two girls walked by the entrance to the lot. Siegrist and Farwell attempted to engage them in conversation; they left Farwell's car and followed the girls to a drive-in restaurant down the street.

The girls complained to their friends in the restaurant that they were being followed. Six boys chased Siegrist and Farwell back to the lot. Siegrist escaped unharmed, but Farwell was severely beaten. Siegrist found Farwell underneath his automobile in the lot. Ice was applied to Farwell's head. Siegrist then drove Farwell around for approximately two hours, stopping at a number of drive-in restaurants. Farwell went to sleep in the back seat of his car. Around midnight Siegrist drove the car to the home of Farwell's grandparents, parked it in the driveway, unsuccessfully attempted to rouse Farwell, and left. Farwell's grandparents discovered him in the car the next morning and took him to the hospital. He died three days later of an epidural hematoma.

At trial, plaintiff contended that had Siegrist taken Farwell to the hospital, or had he notified someone of Farwell's condition and whereabouts, Farwell would not have died. A neurosurgeon testified that if a person in Farwell's condition is taken to a doctor before, or within half an hour after, consciousness is lost, there is an 85 to 88 per cent chance of survival. Plaintiff testified that Siegrist told him that he knew Farwell was badly injured and that he should have done something.

286*286 The jury returned a verdict for plaintiff and awarded $15,000 in damages. The Court of Appeals reversed, finding that Siegrist had not assumed the duty of obtaining aid for Farwell and that he neither knew nor should have known of the need for medical treatment.

II

Two separate, but interrelated questions are presented:

A. Whether the existence of a duty in a particular case is always a matter of law to be determined solely by the Court?

B. Whether, on the facts of this case, the trial judge should have ruled, as a matter of law, that Siegrist owed no duty to Farwell?

A.

"A duty, in negligence cases, may be defined as an obligation, to which the law will give recognition and effect, to conform to a particular standard of conduct toward another." Prosser, Torts (4th ed), § 53, p 324.

The existence of a duty is ordinarily a question of law. However, there are factual circumstances which give rise to a duty. The existence of those facts must be determined by a jury.^[2] In Bonin v Gralewicz, 378 Mich 521, 526-527; 146 NW2d 647 (1966), this Court reversed a directed verdict of no cause of action where the trial court had determined 287*287 as a matter of law that the proofs were insufficient to establish a duty of care:

"Usually, in negligence cases, whether a duty is owed by the defendant to the plaintiff does not require resolution of fact issues. However, in some cases, as in this one, fact issues arise. When they do, they must be submitted to the jury, our traditional finders of fact, for ultimate resolution, and they must be accompanied by an appropriate conditional instruction regarding defendant's duty, conditioned upon the jury's resolution of the fact dispute."

This same rule was stated more recently in Davis v Thornton, 384 Mich 138, 142; 180 NW2d 11 (1970). "The trial judge in this case determined the defendant owed the plaintiff no duty. We believe this conclusion could properly be made only by a jury."

B.

Without regard to whether there is a general duty to aid a person in distress, there is a clearly recognized legal duty of every person to avoid any affirmative acts which may make a situation worse. "[I]f the defendant does attempt to aid him, and takes charge and control of the situation, he is regarded as entering voluntarily into a relation which is attended with responsibility. * * * Such a defendant will then be liable for a failure to use reasonable care for the protection of the plaintiff's interests." Prosser, supra, § 56, pp 343-344. "Where performance clearly has been begun, there is no doubt that there is a duty of care." Id 346.

In a case such as the one at bar, the jury must determine, after considering all the evidence, whether the defendant attempted to aid the victim. 288*288 If he did, a duty arose which required defendant to act as a reasonable person.

"Before any duty, or any standard of conduct may be set, there must first be proof of facts which give rise to it", Prosser, supra, § 37, p 205. Whether those facts have been proved is a question for the jury.

"Professor Green argues that it is impossible in the nature of things for the duty problem to be decided by the jury, for if the court sends the issue to the jury this `necessarily operates as a ruling that there is a duty or else he would never have submitted the case to the jury at all.' But that is not so. As in the case of any other issue, the judge will leave the question to the jury if it is a debatable one, but the jury may decide that (for example) plaintiff was beyond the apparent scope of danger from defendant's conduct, and so beyond the scope of the duty to perform it carefully, even where they are quite ready to find defendant's conduct clearly below the standard of reasonable care." 2 Harper & James, The Law of Torts, p 1060.

There was ample evidence to show that Siegrist breached a legal duty owed Farwell. Siegrist knew that Farwell had been in a fight, and he attempted to relieve Farwell's pain by applying an ice pack to his head. While Farwell and Siegrist were riding around, Farwell crawled into the back seat and laid down. The testimony showed that Siegrist attempted to rouse Farwell after driving him home but was unable to do so.

In addition, Farwell's father testified to admissions made to him by Siegrist:

"Q: Witness, just before the jury was excused, I asked whether you had any conversation with Mr. Siegrist after this event occurred. You answered, `Yes, the day 289*289 after in the living room of Mrs. Grenier's [the deceased's mother] home.' Then, the jury was excused, and we made a special record, and now I would like to ask you some questions that I asked and that you answered out of the presence of the jury.

"A: Yes.

"Q: What did Mr. Siegrist say, how did the conversation go?

"A: I asked him why he left Ricky [the deceased] in the driveway of his grandfather's home.

"Q: What did he say?

"A: He said, `Ricky was hurt bad, I was scared.' I said, `Why didn't you tell somebody, tell his grandparents?' He said, `I know I should have, I don't know.'" (Emphasis added.)

The question at trial came down to whether Siegrist acted reasonably under all the circumstances. "The law of negligence is that an actor is held to the standard of a reasonable man. The determination of the facts upon which the judgment of reasonableness is based is admittedly for the jury." Davis v Thornton, 384 Mich 138, 142-143; 180 NW2d 11 (1970).

The jury in this case found that Siegrist did not act reasonably, and that his negligence was the proximate cause of Farwell's death.

"`"In considering the question whether defendant was entitled to a directed verdict, the testimony must be construed as strongly as possible in favor of the plaintiff. * * * The specific inquiry is whether this Court can say, as a matter of law, giving to plaintiff's proofs the strongest probative force to which they are entitled, that the evidence was not sufficient to justify submitting to the jury the questions of defendant's negligence and its knowledge or notice of the situation."'" Clark v Dalman, 379 Mich 251, 263; 150 NW2d 755 (1967).

290*290 III

Siegrist contends that he is not liable for failure to obtain medical assistance for Farwell because he had no duty to do so.

Courts have been slow to recognize a duty to render aid to a person in peril.^[3] Where such a duty has been found, it has been predicated upon the existence of a special relationship between the parties;^[4] in such a case, if defendant knew or should have known of the other person's peril,^[5] he 291*291 is required to render reasonable care under all the circumstances.^[6]

In Depue v Flatau, 100 Minn 299; 111 NW 1 (1907), the Supreme Court of Minnesota reversed an order of the trial court dismissing the cause of action and said that if the defendants knew their dinner guest was ill, it was for the jury to decide whether they were negligent in refusing his request to spend the night and, propping him on his wagon with the reins thrown over his shoulder, sending him toward home.

The Sixth Circuit Court of Appeals, in Hutchinson v Dickie, 162 F2d 103, 106 (CA 6, 1947), said that a host had an affirmative duty to attempt to rescue a guest who had fallen off his yacht. The host controlled the only instrumentality of rescue. The Court declared that to ask of the host anything less than that he attempt to rescue his guest would be "so shocking to humanitarian considerations and the commonly accepted code of social conduct that the courts in similar situations have had no difficulty in pronouncing it to be a legal obligation".

Farwell and Siegrist were companions on a social venture. Implicit in such a common undertaking is the understanding that one will render assistance to the other when he is in peril if he can do so without endangering himself. Siegrist knew or should have known when he left Farwell, who was badly beaten and unconscious, in the back seat of his car that no one would find him before morning. Under these circumstances, to say that Siegrist had no duty to obtain medical assistance or at least to notify someone of Farwell's condition and whereabouts would be "shocking to humanitarian considerations" and fly in the face 292*292 of "the commonly accepted code of social conduct".^[7] "[C]ourts will find a duty where, in general, reasonable men would recognize it and agree that it exists."^[8]

Farwell and Siegrist were companions engaged in a common undertaking; there was a special relationship between the parties. Because Siegrist knew or should have known of the peril Farwell was in and could render assistance without endangering himself he had an affirmative duty to come to Farwell's aid.

The Court of Appeals is reversed and the verdict of the jury reinstated.

KAVANAGH, C.J., and WILLIAMS, J., concurred with LEVIN, J.

LINDEMER and RYAN, JJ., took no part in the decision of this case.

FITZGERALD, J.

The unfortunate death of Richard Farwell prompted this wrongful death action brought by his father against defendant, David Siegrist, a friend who had accompanied Farwell during the evening in which the decedent received injuries which ultimately caused his death three days later. The question before us is whether the defendant, considering his relationship with the decedent and the activity they jointly experienced on the evening of August 26-27, 1966, by his conduct voluntarily or otherwise assumed, or should have assumed, the duty of rendering medical or other assistance to the deceased. We find that defendant had no obligation to assume, nor did he assume, such a duty.

293*293 The facts of the case are accurately set forth in the Court of Appeals opinion.

"Factually, it appears that, on August 26, 1966, Richard Murray Farwell, deceased 18-year-old son of the plaintiff, visited the home of his friend, David Siegrist, a 16-year-old; that evening they drove to a trailer rental lot, where Siegrist was returning an automobile he had borrowed from a friend who was employed by the rental agency.

"Siegrist and Farwell planned to wait in the car until the friend had finished work and then `drive around,' stopping at various restaurants and drive-ins. While they were waiting, Siegrist estimated that they consumed `four or five' beers each.

"Shortly before nine o'clock p.m., two teenage girls walked past the car. After an unsuccessful attempt to engage them in conversation, Farwell left the car and followed the girls; Siegrist got out of the car and followed Farwell.

"When the girls reached a restaurant a short distance down the street, they apparently complained to those present that they were being followed. Defendants Ingland, Brock, Donald Keaton, Daniel Keaton, and at least two others in the restaurant began to chase Farwell and Siegrist, both of whom ran back to the trailer lot.

"Siegrist escaped by ducking into the trailer rental office, where he requested those inside to assist Farwell. They stepped out of the office and were confronted by the group which had been chasing Siegrist and Farwell. The two groups faced each other, but no violence ensued, and the two groups scattered.

"It was then discovered for the first time that Farwell had been caught and beaten by those who had been pursuing him and Siegrist; Farwell was found underneath his automobile in the lot.

"Farwell was taken to the trailer rental office, where Siegrist gave him a plastic bag full of ice for his injuries. Shortly thereafter, Farwell and Siegrist left the rental office and, between ten o'clock p.m. and midnight, they visited four different drive-in restaurants. 294*294 While enroute from the third to the fourth restaurant, Farwell stated that he wanted to lie down, climbed into the back seat, and went to sleep. Around midnight, Siegrist drove the car to the home of Farwell's grandparents, parked it in the driveway, and attempted to rouse Farwell. When the latter merely made a sound as if `in a deep sleep', Siegrist left with a friend who had followed him to the grandparents' house. The next morning, Farwell was found by his grandparents, apparently taken to a hospital, and died of an epidural hematoma.

"At the close of plaintiff's proofs, defendant Siegrist moved for a directed verdict on the grounds that he had no duty to obtain medical assistance for Farwell as a matter of law. In the alternative, the motion was based upon the proposition that plaintiff failed to establish that any conduct on the part of Siegrist proximately caused Farwell's death. The motion was denied." 51 Mich App 585, 587-588.

Following the jury verdict of $15,000 in favor of the plaintiff, defendant, arguing that the verdict was inconsistent with the weight of the evidence, moved for and was denied a judgment notwithstanding the verdict. The decision of the trial court was reversed by the Court of Appeals which found that the defendant never assumed, voluntarily or otherwise, the duty of obtaining medical assistance for the deceased. The Court stated that the facts in no way indicated that defendant knew, or should have known, that immediate medical attention was required. Consequently, as a matter of law the Court determined that defendant was under no duty to obtain medical treatment for the decedent.

Plaintiff argues that once having voluntarily undertaken the duty of caring for decedent, defendant could not discontinue such assistance if, in so doing, he left the decedent in a worse position than when such duty was assumed. Defendant's 295*295 knowledge of the seriousness of decedent's injury and the failure to advise decedent's grandparents, the close personal relationship that existed between defendant and the decedent, and the supposition that the decedent relied upon defendant for assistance leads plaintiff to conclude that defendant did not act "with the reasonable prudence and care of a reasonable man in the same or like circumstances". Defendant's position is that there was no volunteered assumption of duty to care for the safety of the decedent. He argues that the facts within his knowledge on the evening of August 26, 1966, and the evidence introduced at trial failed to establish that defendant should have seen that Richard Farwell had suffered a potentially fatal injury requiring immediate attention.

Defendant did not voluntarily assume the duty of caring for the decedent's safety. Nor did the circumstances which existed on the evening of August 26, 1966, impose such a duty. Testimony revealed that only a qualified physician would have reason to suspect that Farwell had suffered an injury which required immediate medical attention. The decedent never complained of pain and, in fact, had expressed a desire to retaliate against his attackers. Defendant's inability to arouse the decedent upon arriving at his grandparents' home does not permit us to infer, as does plaintiff, that defendant knew or should have known that the deceased was seriously injured.^[1]296*296 While it might have been more prudent for the defendant to insure that the decedent was safely in the house prior to leaving, we cannot say that defendant acted unreasonably in permitting Farwell to spend the night asleep^[2] in the back seat of his car.

The close relationship between defendant and the decedent is said to establish a legal duty upon defendant to obtain assistance for the decedent. No authority is cited for this proposition other than the public policy observation that the interest of society would be benefited if its members were required to assist one another. This is not the appropriate case to establish a standard of conduct requiring one to legally assume the duty of insuring the safety of another. Recognizing that legal commentaries have expressed moral outrage at those decisions^[3] which permit one to refuse aid to another whose life may be in peril, we cannot say that, considering the relationship between these two parties and the existing circumstances, defendant acted in an unreasonable manner.^[4]

297*297 Plaintiff believes that a legal duty to aid others should exist where such assistance greatly benefits society and only a reasonable burden is imposed upon those in a position to help. He contends further that the determination of the existence of a duty must rest with the jury where questions of foreseeability and the relationship of the parties are primary considerations.

It is clear that defendant's nonfeasance, or the "passive inaction or a failure to take steps to protect [the decedent] from harm"^[5] is urged as being the proximate cause of Farwell's death. We must reject plaintiff's proposition which elevates a moral obligation to the level of a legal duty where, as here, the facts within defendant's knowledge in no way indicated that immediate medical attention was necessary and the relationship between the parties imposes no affirmative duty to render assistance. See Steckman v Silver Moon, Inc, 77 SD 206; 90 NW2d 170; 64 ALR2d 1171 (1958). The posture of this case does not permit us to create a legal duty upon one to render assistance to another injured or imperiled party where the initial injury was not caused by the person upon whom the duty is sought to be imposed.

The relationship of the parties and the question of foreseeability does not require that the jury, rather than the court, determine whether a legal duty exists. We are in agreement with the general principle advanced by plaintiff that the question of negligence is one of law for the court only when the facts are such that all reasonable men must draw the same conclusion.^[6] However, this principle becomes operative only after the court establishes 298*298 that a legal duty is owed by one party to another. Prosser's analysis of the role of the court and jury on questions of legal duty bears repeating:

"The existence of a duty. In other words, whether, upon the facts in evidence, such a relation exists between the parties that the community will impose a legal obligation upon one for the benefit of the other — or, more simply, whether the interest of the plaintiff which has suffered invasion was entitled to legal protection at the hands of the defendant. This is entirely a question of law, to be determined by reference to the body of statutes, rules, principles and precedents which make up the law; and it must be determined only by the court. * * * A decision by the court that, upon any version of the facts, there is no duty, must necessarily result in judgment for the defendant." Prosser, Torts (4th ed), § 37, p 206.

Michigan recognizes that the question of duty is to be resolved by the court rather than the jury. Fisher v Johnson Milk Co, Inc, 383 Mich 158; 174 NW2d 752 (1970).

The Court of Appeals properly decided as a matter of law that defendant owed no duty to the deceased.

We would affirm.

COLEMAN, J., concurred with FITZGERALD, J.

[1] The trial judge instructed the jury to determine whether Siegrist had voluntarily undertaken to render aid and, if he had, whether he acted reasonably in discharging that duty. Whether Siegrist be charged with the duty of a voluntary rescuer or the duty of a companion, the standard of care — whether he acted reasonably under all the circumstances — is the same and the instruction given was adequate.

[2] Of course, merely labeling a question as one of "law" or "fact" does not solve the dilemma.

"No two terms of legal science have rendered better service than `law' and `fact'. * * * They readily accommodate themselves to any meaning we desire to give them. * * * What judge has not found refuge in them? The man who could succeed in defining them would be a public enemy." Green, Judge and Jury, p 270.

[3] "* * * [T]he law has persistently refused to recognize the moral obligation of common decency and common humanity, to come to the aid of another human being who is in danger * * *. The remedy in such cases is left to the `higher law' and the `voice of conscience,' which, in a wicked world, would seem to be singularly ineffective either to prevent the harm or to compensate the victim." Prosser, Torts (4th ed), § 56, pp 340-341.

"At the other end of the spectrum are cases where the peril to the plaintiff has come from a source in no way connected with defendant's conduct or enterprises or undertakings, past or present, but where the defendant has it in his power by taking some reasonable precaution to remove the peril. Here the law has traditionally found no duty, however reprehensible and unreasonable the defendant's failure to take the precaution may be. * * * There is no legal obligation to be a Good Samaritan." 2 Harper & James, The Law of Torts, § 18.6, p 1046.

[4] Carriers have a duty to aid passengers who are known to be in peril [Yu v New York, N H & H R Co, 145 Conn 451; 144 A2d 56 (1958)]; employers similarly are required to render aid to employees [Anderson v Atchison, T & S F R Co, 333 US 821; 68 S Ct 854; 92 L Ed 1108 (1948); Bessemer Land & Improvement Co v Campbell, 121 Ala 50; 25 So 793 (1898); Carey v Davis, 190 Iowa 720; 180 NW 889 (1921)]; innkeepers to their guests [West v Spratling, 204 Ala 478; 86 So 32 (1920)]; a jailer to his prisoner [Farmer v State, 224 Miss 96; 79 So 2d 528 (1955)].

Maritime law has imposed a duty upon masters to rescue crewmen who fall overboard. Harris v Pennsylvania R Co, 50 F2d 866 (CA 4, 1931).

See Prosser, Torts, supra; 2 Harper & James, supra, pp 1048-1049.

[5] In the following cases the court specifically mentions not only the defendant's knowledge of but also his apparent indifference toward the other person's peril: Southern R Co v Sewell, 18 Ga App 544; 90 SE 94 (1916); Adams v Chicago G W R Co, 156 Iowa 31; 135 NW 21 (1912); Cincinnati, N O & T P R Co v Marrs' Administratrix, 119 Ky 954; 85 SW 188 (1905); Fagg's Administrator v Louisville & N R Co, 111 Ky 30; 63 SW 580 (1901); Depue v Flatau, 100 Minn 299; 111 NW 1 (1907); Whitesides v Southern R Co, 128 NC 229; 38 SE 878 (1901).

[6] Prosser, supra, p 343.

[7] Hutchinson v Dickie, 162 F2d 103, 106 (CA 6, 1947).

[8] Prosser, supra, § 53, p 327.

[1] It is at this point — plaintiff's unsuccessful attempt to arouse the decedent in the driveway — that counsel, during oral argument, believes that defendant volunteered to aid the decedent. Yet no affirmative act by defendant indicated that he assumed the responsibility of rendering assistance to the decedent. Consequently, there could be no discontinuance of aid or protection which left decedent in a worse position than when the alleged "volunteering" occurred. This would make operative the concession of plaintiff that where no duty is owed, the refusal to act cannot form the basis for an action in negligence.

[2] Defendant had no way of knowing that it was the severity of the head injury suffered by the decedent which caused him to crawl in the back seat and apparently fall asleep. The altercation combined with the consumption of several beers could easily permit defendant to conclude that decedent was simply weary and desired to rest.

[3] The most notable of which include: Osterlind v Hill, 263 Mass 73; 160 NE 301; 56 ALR 1123 (1928); Yania v Bigan, 397 Pa 316; 155 A2d 343 (1959); and Handiboe v McCarthy, 114 Ga App 541; 151 SE2d 905 (1966).

[4] Were a special relationship to be the basis of imposing a legal duty upon one to insure the safety of another, it would most probably take the form of "co-adventurers" who embark upon a hazardous undertaking with the understanding that each is mutually dependent upon the other for his own safety. There is no evidence to support plaintiff's position that decedent relied upon defendant to provide any assistance whatsoever. A situation where two persons are involved in an altercation provoked by the party ultimately injured, the extent of which was unknown to the other, whose subsequent conduct included drinking beer and a desire to retaliate against his attackers would not fall within this category.

[5] Prosser, Torts (4th ed), § 56, pp 338-339.

[6] McCullough v Ward Trucking Co, 368 Mich 108; 117 NW2d 167 (1962); Barnebee v Spence Brothers, 367 Mich 46; 116 NW2d 49 (1962).

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

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

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

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

The opinion of the Court was delivered by

WILENTZ, C.J.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

GARIBALDI, J., dissenting.

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

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

I

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

II

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

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

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

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

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

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

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

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

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

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

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

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

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

III

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

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

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

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

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

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

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

IV

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

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

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

Opposed --Justice GARIBALDI--1.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

__________

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

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

Page 14

        [17 Cal.3d 429]

Page 19

        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

Page 20

        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

Page 21

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.

Page 22

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

Page 23

        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]

Page 24

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

Page 25

        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

Page 26

        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

Page 27

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

Page 28

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

Page 29

        [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]

Page 30

        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.

Page 31

        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,

Page 32

        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

Page 33

        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

Page 34

        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

Page 35

        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.

        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

Page 36

        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

Page 37

        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

Page 38

        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.

        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

Page 39

        Assurance of confidentiality is important for three reasons.

        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.

        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.)

        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

Page 40

        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.

        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

Page 41

        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

Page 42

        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.

15 Cal.Rptr. 821
56 Cal.2d 583, 364 P.2d 685

Robert LUCAS et al., Plaintiffs and Appellants,
v.
L. S. HAMM, Defendant and Respondent.

S. F. 20269.
Supreme Court of California, In Bank.
Sept. 5, 1961.
Rehearing Denied Oct. 4, 1961.

[15 Cal.Rptr. 822] [364 P.2d 686] [56 Cal.2d 586] Reginald G. Hearn, San Francisco, for plaintiffs and appellants.

Philip H. Angell, Scott Elder, Robert M. Adams, Jr., Angell, Adams, Gochnauer & Elder and B. E. Kragen, San Francisco, for defendant and respondent.

GIBSON, Chief Justice.

Plaintiffs, who are some of the beneficiaries under the will of Eugene H. Emmick, deceased, brought this action for damages against defendant L. S. Hamm, an attorney at law who had been engaged by the testator to prepare the will. They have appealed from a judgment of dismissal entered after an order sustaining a general demurrer to the second amended complaint without leave to amend.

The allegations of the first and second causes of action are summarized as follows: Defendant agreed with the testator, for a consideration, to prepare a will and condicils thereto for him by which plaintiffs were to be designated as beneficiaries of a trust provided for by paragraph Eighth of the will and were to receive 15% of the residue as specified in that paragraph. Defendant, in violation of instructions and in breach of his contract, negligently prepared testamentary instruments containing phraseology that was invalid by virtue of section 715.2 and former sections 715.1 and 716 of the Civil Code relating to restraints on alienation and the rule against perpetuities.^[1] Paragraph Eighth of these instruments [15 Cal.Rptr. 823] [364 P.2d 687] [56 Cal.2d 587] "transmitted" the residual estate in trust and provided that the "trust shall cease and terminate at 12 o'clock noon on a day five years after the date upon which the order distributing the trust property to the trustee is made by the Court having jurisdiction over thr probation of this will." After the death of the testator the instruments were admitted to probate. Subsequently defendant, as draftsman of the instruments and as counsel of record for the executors, advised plaintiffs in writing that the residual trust provision was invalid and that plaintiffs would be deprived of the entire amount to which they would have been entitled if the provision had been valid unless they made a settlement with the blood relatives of the testator under which plaintiffs would receive a lesser amount than that provided for them by the testator. As the direct and proximate result of the negligence of defendant and his breach of contract in preparing the testamentary instruments and the written advice referred to above, plaintiffs were compelled to enter into a settlement under which they received a share of the estate amounting to $75,000 less than the sum which they would have received pursuant to testamentary instruments drafted in accordance with the directions of the testator.

(The third cause of action will be discussed separarately because it concerns matters not involved in the first two counts.)

[56 Cal.2d 588] It was held in Buckley v. Gray, 110 Cal. 339, 42 P. 900, 31 L.R.A. 862, that an attorney who made a mistake in drafting a will was not liable for negligence or breach of contract to a person named in the will who was deprived of benefits as a result of the error. The court stated that an attorney is liable to his client alone with respect to actions based on negligence in the conduct of his professional duties, and it was reasoned that there could be no recovery for mere negligence where there was no privity by contract or otherwise between the defendant and the person injured. 110 Cal. at pages 342-343, 42 P. 900. The court further concluded that there could be no recovery on the theory of a contract for the benefit of a third person, because the contract with the attorney was not expressly for the plaintiff's benefit and the testatrix only remotely intended the plaintiff to be benefited as a result of the contract. 110 Cal. at pages 346-347, 42 P. 900. For the reasons hereinafter stated the case is overruled.

The reasoning underlying the denial of tort liability in the Buckley case, i. e., the stringent privity test, was rejected in Biakanja v. Irving, 49 Cal.2d 647, 648-650, 320 P.2d 16, 65 A.L.R.2d 1358, where we held that a notary public who, although not authorized to practice law, prepared a will but negligently failed to direct proper attestation was liable in tort to an intended beneficiary who was damaged because of the invalidity of the instrument. It was pointed out that since 1895, when Buckley was decided, the rule that in the absence of privity there was no liability for negligence committed in the performance of a contract had been greatly liberalized. 49 Cal.2d at page 649, 320 P.2d 16. In restating the rule it was said that the determination whether in a specific case the defendant will be held liable to a third person not in privity is a matter of policy and involves the balancing of various factors, among which are the extent to which the transaction was intended to affect the plaintiff, the foreseeability of harm to him, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury, and the policy of preventing future harm. 49 Cal.2d at page 650, 320 P.2d 16. The same general principle must be applied in determining whether a beneficiary [15 Cal.Rptr. 824] [364 P.2d 688] is entitled to bring an action for negligence in the drafting of a will when the instrument is drafted by an attorney rather than by a person not authorized to practice law.

Many of the factors which led to the conclusion that the notary public involved in Biakanja was liable are equally [56 Cal.2d 589] applicable here. As in Biakanja, one of the main purposes which the transaction between defendant and the testator intended to accomplish was to provide for the transfer of property to plaintiffs; the damage to plaintiffs in the event of invalidity of the bequest was clearly foreseeable; it became certain, upon the death of the testator without change of the will, that plaintiffs would have received the intended benefits but for the asserted negligence of defendant; and if persons such as plaintiffs are not permitted to recover for the loss resulting from negligence of the draftsman, no one would be able to do so, and the policy of prevent future harm would be impaired.

Since defendant was authorized to practice the profession of an attorney, we must consider an additional factor not present in Biakanja, namely, whether the recognition of liability to beneficiaries of wills negligently drawn by attorneys would impose an undue burden on the profession. Although in some situations liability could be large and unpredictable in amount, this is also true of an attorney's liability to his client. We are of the view that the extension of his liability to beneficiaries injured by a negligently drawn will does not place an undue burden on the profession, particularly when we take into consideration that a contrary conclusion would cause the innocent beneficiary to bear the loss. The fact that the notary public involved in Biakanja was guilty of unauthorized practice of the law was only a minor factor in determining that he was liable, and the absence of the factor in the present case does not justify reaching a different result.

It follows that the lack of privity between plaintiffs and defendant does not preclude plaintiffs from maintaining an action in tort against defendant.

Neither do we agree with the holding in Buckley that beneficiaries damaged by an error in the drafting of a will cannot recover from the draftsman on the theory that they are third-party beneficiaries of the contract between him and the testator.^[2] Obviously the main purpose of a contract [56 Cal.2d 590] for the drafting of a will is to accomplish the future transfer of the estate of the testator to the beneficiaries named in the will, and therefore it seems improper to hold, as was done in Buckley, that the testator intended only "remotely" to benefit those persons. It is true that under a contract for the benefit of a third person performance is usually to be rendered directly to the beneficiary, but this is not necessarily the case. (See Rest., Contracts, § 133, com. d; 2 Williston on Contracts (3rd ed.1959) 829.) For example, where a life insurance policy lapsed because a bank failed to perform its agreement to pay the premiums out of the insured's bank account, it was held that after the insured's death the beneficiaries could recover against the bank as third-party beneficiaries. Walker Bank & Trust Co. v. First Security Corp., 9 Utah 2d 215, 341 P.2d 944, 945 et seq. Persons who had agreed to procure liability insurance for the protection of the promisees but did not do so were also held liable to injured persons who would have been covered by the insurance, the courts stating that all persons who might be injured were third-party beneficiaries of the contracts to procure insurance. [15 Cal.Rptr. 825] [364 P.2d 689] Johnson v. Holmes Tuttle Lincoln-Merc., Inc., 160 Cal.App.2d 290, 296 et seq., 325 P.2d 193; James Stewart & Co. v. Law, 149 Tex. 392, 233 S.W.2d 558, 561-562, 22 A.L.R.2d 639. Since, in a situation like those presented here and in the Buckley case, the main purpose of the testator in making his agreement with the attorney is to benefit the persons named in his will and this intent can be effectuated, in the event of a breach by the attorney, only by giving the beneficiaries a right of action, we should recognize, as a matter of policy, that they are entitled to recover as third-party beneficiaries. See 2 Williston on Contracts (3rd ed. 1959) pp. 843-844; 4 Corbin on Contracts (1951) pp. 8, 20.

Section 1559 of the Civil Code, which provides for enforcement by a third person of a contract made "expressly" for his benefit, does not preclude this result. The effect of the section is to exclude enforcement by persons who are only incidentally or remotely benefited. See Hartman Ranch Co. v. Associated Oil Co., 10 Cal.2d 232, 244, 73 P.2d 1163; cf. 4 Corbin on Contracts (1951) pp. 23-24. As we have seen, a contract for the drafting of a will unmistakably shows the intent of the testator to benefit the persons to be named in the will, and the attorney must necessarily understand this.

Defendant relies on language in Smith v. Anglo- [56 Cal.2d 591] California Trust Co., 205 Cal. 496, 502, 271 P. 898, and Fruitvale Canning Co. v. Cotton, 115 Cal.App.2d 622, 625, 252 P.2d 953, that to permit a third person to bring an action on a contract there must be "an intent clearly manifested by the promisor" to secure some benefit to the third person. This language, which was not necessary to the decision in either of the cases, is unfortunate. Insofar as intent to benefit a third person is important in determining his right to bring an action under a contract, it is sufficient that the promisor must have understood that the promisee had such intent. (Cf. Rest., Contracts, § 133, subds. 1(a) and 1(b); 4 Corbin on Contracts (1951) pp. 16-18; 2 Williston on Contracts (3rd ed. 1959) pp. 836-839). No specific manifestation by the promisor of an intent to benefit the third person is required. The language relied on by defendant is disapproved to the extent that it is inconsistent with these views.

We conclude that intended beneficiaries of a will who lose their testamentary rights because of failure of the attorney who drew the will to properly fulfill his obligations under his contract with the testator may recover as third-party beneficiaries.

However, an attorney is not liable either to his client or to a beneficiary under a will for errors of the kind alleged in the first and second causes of action.

The general rule with respect to the liability of an attorney for failure to properly perform his duties to his client is that the attorney, by accepting employment to give legal advice or to render other legal services, impliedly agrees to use such skill, prudence, and diligence as lawyers of ordinary skill and capacity commonly possess and exercise in the performance of the tasks which they undertake. Estate of Kruger, 130 Cal. 621, 626, 63 P. 31; Moser v. Western Harness Racing Ass'n, 89 Cal.App.2d 1, 7, 200 P.2d 7; Armstrong v. Adams, 102 Cal.App. 677, 684, 283 P. 871; see Wade, The Attorney's Liability for Negligence (1959) 12 Vanderbilt Law Rev. 755, 762-765; 5 Am.Jur. 336. The attorney is not liable for efery mistake he may make in his practice; he is not, in the absence of an express agreement, an insurer of the soundness of his opinions or of the validity of an instrument that he is engaged to draft; and he is not liable for being in error as to a question of law on which reasonable doubt may be entertained by well-informed lawyers. See Lally v. Kuster, 177 Cal. 783, 786, 171 P. 961; Savings Bank v. Ward, 100 U.S. 195, 198, 25 L.Ed. 621; [56 Cal.2d 592] 5 Am.Jur. 335; 7 C.J.S. Attorney and Client § 143, p. 980. These principles are equally applicable whether the plaintiff's claim is based on tort or breach of contract.

[364 P.2d 690] [15 Cal.Rptr. 826] The complaint, as we have seen, alleges that defendant drafted the will in such a manner that the trust was invalid because it violated the rules relating to perpetuities and restraints on alienation. These closely akin subjects have long perplexed the courts and the bar. Professor Gray, a leading authority in the field, stated:

"There is something in the subject which seems to facilitate error. Perhaps it is because the mode of reasoning is unlike that with which lawyers are most familiar. * * * A long list might be formed of the demonstrable blunders with regard to its questions made by eminent men, blunders which they themselves have been sometimes the first to acknowledge; and there are few lawyers of any practice in drawing wills and settlements who have not at some time either fallen into the net which the Rule spreads for the unwary, or at least shuddered to think how narrowly they have escaped it."

Gray, The Rule Against Perpetuities (4th ed. 1942) p. xi; see also Leach, Perpetuities Legislation (1954) 67 Harv.L.Rev. 1349 (describing the rule as a "technicality-ridden legal nightmare" and a "dangerous instrumentality in the hands of most members of the bar"). Of the California law on perpetuities and restraints it has been said that few, if any, areas of the law have been fraught with more confusion or concealed more traps for the unwary draftsman; that members of the bar, probate courts, and title insurance companies make errors in these matters; that the code provisions adopted in 1872 created a situation worse than if the matter had been left to the common law, and that the legislation adopted in 1951 (under which the will involved here was drawn), despite the best of intentions, added rurther complexities. (See 38 Cal.Jur.2d 443; Coil, Perpetuities and Restraints; A Needed Reform (1955) 30 State Bar J. 87, 88-90.)

In view of the state of the law relating to perpetutities and restraints on alienation and the nature of the error, if any, assertedly made by defendant in preparing the instrument, it would not be proper to hold that defendant failed to use such skill, prudence, and diligence as lawyers of ordinary skill and capacity commonly exercise. The provision of the will quoted in the complaint, namely, that the trust was to terminate five years after the order of the probate court distributing the property to the trustee, could cause the trust to be [56 Cal.2d 593] invalid only because of the remote possibility that the order of distribution would be delayed for a period longer than a life in being at the creation of the interest plus 16 years (the 21-year statutory period less the five years specified in the will). Although it has been held that a possibility of this type could result in invalidity of a bequest (Estate of Johnston, 47 Cal.2d 265, 269-270, 303 P.2d 1; Estate of Campbell, 28 Cal.App.2d 102, 103 et seq., 82 P.2d 22), the possible occurrence of such a delay was so remote and unlikely that an attorney of ordinary skill acting under the same circumstances might well have "fallen into the net which the Rule spreads for the unwary" and failed to recognize the danger. We need not decide whether the trust provision of the will was actually invalid or whether, as defendant asserts, the complaint fails to allege facts necessary to enable such a determination,^[3] because we have concluded that in any event an error of the type relied on by plaintiffs does not show negligence or breach of constract on the part of defendant. It is apparent that plaintiffs have not stated and cannot state causes of action with respect to the first two counts, and the trial court did not [15 Cal.Rptr. 827] [364 P.2d 691] abuse its discretion in denying leave to amend as to these counts.

The third cause of action contains additional allegations as follows: After admission of the will and codicils to probate, Harold Houghton Emmick, Walton Russell Emmick, Clelta Inez Spelman, and Retha Newell, hereinafter called the contestants, instituted a will contest. The executors, defendant, and the contestants tentatively reached a settlement agreement, subject to court approval, under which $10,000 would be paid to the contestants from the assets of the estate in return for which each contestant would sign an "appropriate release." Defendant was negligent in the performance of his duties in that he caused to be executed on behalf of the estate and those interested therein, including plaintiffs, releases which did not precluded the contrestants from a subsequent attack upon the validity of the testamentary instruments. After complete execution of the releases and their transmittal to escrow but before approval of the compromise [56 Cal.2d 594] by the court, defendant was advised by competent counsel that the residual clause of the will and codicils was invalid as a violation of the rule against perpetuities and that as a consequence the phraseology of the releases was inadequate to protect the estate and persons interested therein, and defendant was requested by competent counsel to modify the releases and insert appropriate language suggested by counsel under which the contestants would release the estate and persons interested in it from any claims of whatsoever kind or nature. Defendant refused to do so and also refused to call the court's attention to the recommendations. As a consequence of the failure to direct the matter to the attention of the court, the order approving the compromise was made on the assumption that the releases would give adequate protection. The sum of $10,000 was paid to the contestants from the assets of the estate, and the releases were filed in the proceedings. Subsequently the contestants joined in a legal attack upon the validity of the residual clause of the will and codicils and by virtue of the invalidity of the clause participated in the settlement referred to above concerning paragraph Eighth of the will. If the releases had been prepared in accord with good legal practice they would have precluded such participation, with the result that plaintiffs would have received an additional sum of $15,000 from the estate.

This cause of action, unlike the first two, does not concern defendant's conduct as attorney for the testator, but, rather, asserted negligence by him when acting as attorney for the executors with respect to the execution of releases in the settlement of a will contest based on lack of testamentary capacity. It is undisputed that the releases were adequate to preclude any further litigation of that contest, but plaintiffs assert that defendant had a duty to obtain releases which, in addition, would waive all other claims of the contestants against the estate and prevent them from subsequently attacking the validity of the trust provisions.

There are no allegations that the contestants, either at the time of the negotiations for the settlement or at the time of the signing of the releases, were willing to waive their rights to make other attacks upon the will after the settlement of that contest. In the absence of additional allegations we must assume that the agreed sum of $10,000 was intended solely for the settlement of the contest and the ground on which it was based, i. e., lack of testamentary capacity, and it would ordinarily be expected that the contestants would have demanded [56 Cal.2d 595] an additional sum for a more extensive waiver terminating their rights to attack the validity of the various provisions of the will. The written releases, of course, were required to conform to the settlement agreement. Under these circumstances it could well be argued that the attorneys for the contestants would have been derelict in their duty to their clients if they had approved broader releases. At most, under the allegations, defendant had a duty to request [15 Cal.Rptr. 828] [364 P.2d 692] that the contestants sign broader releases, but there is no allegation that he failed to ask them to do so. The third count does not state a cause of action for negligence.

Although defendant pointed out in both the trial court and this court that there is no allegation that he could have secured releases different from the ones given, plaintiffs make no claim that they can amend their complaint so as to cure the deficiency, and we cannot properly hold that the trial court abused its discretion in denying leave to amend.

The judgment is affirmed.

TRAYNOR, SCHAUER, McCOMB, PETERS, WHITE and DOOLING, JJ., concur.

[1] Former section 715.1 of the Civil Code, as it read at the times involved here, provided:

"The absolute power of alienation cannot be suspended, by any limitation or condition whatever, for a period longer than 21 years after some life in being at the creation of the interest and any period of gestation involved in the situation to which the limitation applies. The lives selected to govern the time of suspension must not be so numerous or so situated that evidence of thir deaths is likely to be unreasonaly difficult to obtain."

Section 715.2 reads as follows:

"No interest in real or personal property shall be good unless it must vest, if at all, not later than 21 years after some life in being at the creation of the interest and any period of gestation involved in the situation to which the limitation applies. The lives selected to govern the time of vesting must not be so numerous or so situated that evidence of their deaths is likely to be unreasonably difficult to obtain. It is intended by the enactment of this section to make effective in this State the American common-law rule against perpetuities."

Former section 716, as it read at the times involved here, provided:

"Every future interest is void in its creation which, by any posssibility, may suspend the absolute power of alienation for a longer period than in prescribed in this chapter. Such power of alienation is suspended when there are no persons in being by whom an absolute interest in possession can be conveyed. The period of time during which an interest is destructible pursuant to the uncontrolled volition and for the exclusive personal benefit of the person having such a power of destruction is not to be included in determining the existence of a suspension of the absolute power of alienation or the permissible period for the vesting of an interest within the rule against perpetuities."

[2] It has been recognized in other jurisdictions that the client may recover in a contract action for failure of the attorney to carry out his agreement. (See 5 Am.Jur. 331; 49 A.L.R.2d 1216, 1219-1221; Prosser, Selected Topics on the Law of Torts (1954) pp. 438, 422.) This is in accord with the general rule stated in Communale v. Traders & General Ins. Co., 50 Cal.2d 654, 663, 328 P.2d 198, 68 A.L.R.2d 883, that where a case sounds in both tort and contract, the plaintiff will ordinarily have freedom of election between the two actions.

[3] Defendant asserts that a provision of a will like the one quoted in the complaint could not cause a trust to be invalid unless it also appeared that there were contingent interests which could not vest within the statutory time or that the trust could not be terminated by the beneficiaries acting together within the statutory period. See Estate of Phelps, 182 Cal. 752, 759-760, 190 P. 17; Estate of Heberle, 155 Cal. 723, 726-727, 102 P. 935; Rest., Trusts, Second, § 337.