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XII.B. Controlling the Intoxicated
  • 1 Charles v. Seigfried--"The Majority Rule for Social Host Liability"

    Does the host who serves alcohol have a duty to prevent the intoxicated from driving?

    2

    Page 154

    5
    651 N.E.2d 154

    8
    165 Ill.2d 482, 209 Ill.Dec. 226, 54
    A.L.R.5th 793

    11
    Robert CHARLES, Adm'r of the Estate of Lynn Sue Charles,
    Deceased, Appellee,
    v.
    Alan SEIGFRIED, Appellant.
    Paula L. BZDEK, a Minor, By Her Father and Next Friend,
    Robert J. BZDEK, Appellee,
    v.
    Susan M. TOWNSLEY et al., Appellants.

    14
    Nos. 76617, 77438.

    17
    Supreme Court of Illinois.

    20
    March 30, 1995.
    22

    Rehearing Denied May 30, 1995.

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    Page 155

    26

            [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.

    28

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

    30

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

    32

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

    34

            Chief Justice BILANDIC delivered the opinion of the court:

    36

            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.

    39
    FACTS
    41

            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.

    43

            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

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    Page 156

    47

            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)).

    49

            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.

    51

            [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.

    53

            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)).

    56
    ANALYSIS
    58

            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.

    60

            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.

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    Page 157

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    [209 Ill.Dec. 229] I

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    THE HISTORY OF ALCOHOL-RELATED LIABILITY

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    A. The Common Law Rule and the Dramshop Act

    70

            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.

    72

            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.

    74

            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.

    76

            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:

    78

    "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.

    80

            [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.

    82

    B. Legislative Preemption

    84

            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

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            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.

    90

            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).

    92

            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);

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    Page 159

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            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.

    98

            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.

    100

    [165 Ill.2d 492] II

    103
    STARE DECISIS
    105

            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.

    107

            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

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    Page 160

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    [165 Ill.2d 493] III

    113

    PUBLIC POLICY AND JUDICIAL RESTRAINT

    115

            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.

    117

            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.

    119

            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.

    121

            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.

    123

            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

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    127

            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.

    129

            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).

    131

            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.

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    IV

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    LEGISLATIVE ACTION
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            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.

    143

            [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.

    145

            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:

    147

            "(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:

    149

            (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

    151

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

    153

            (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)).)

    155

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

    157

            [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.

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    161

            [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:

    163

            "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:

    165

            (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;

    167

            (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

    169

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

    171

            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.)

    173

            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.

    175

            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.

    177

            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:

    179

    "[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).

    181

            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

    183

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    185

            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.

    188
    V
    190

            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.

    192

            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.

    194

            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.

    196

            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.

    198

            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.

    200

            The dissent also mistakenly claims that legislative preemption has no application

    202

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    204

            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.

    206

            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.

    209
    CONCLUSION
    211

            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.

    213

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

    215

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

    217

            Justice McMORROW, dissenting:

    219

            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.

    221

            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.

    223

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    225

            [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.

    227

            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.

    229

            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.

    231

            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.

    233

            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.

    235

            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

    237

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    239

            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.

    242
    I
    244

            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.

    246

            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.

    248

            [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).

    250

            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.

    252

            [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

    254

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    256

    "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. * * *

    258

    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.

    260

            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:

    262

    "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.

    264

            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.

    267
    II
    269

            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.

    271

            However, this court's view of stare decisis has never been used, as the majority does in

    273

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    275

    "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:

    277

    '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.

    279

            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.

    281

            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:

    283

    "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.

    285

            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."

    287

            [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

    289

    Page 170

    291

            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.

    294
    III
    296

            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.

    298

            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.

    300

            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.

    302

            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.

    304

            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.

    306

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    308

            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.

    310

    "[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.

    312

            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."

    314

            [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.

    316

            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.

    318

    "When first enacted, the Illinois dram shop laws were an innovative and progressive

    320

    Page 172

    322

            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.

    324

            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:

    326

    "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."

    328

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

    330

    "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."

    332

            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.

    334

            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.

    336

            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

    338

    Page 173

    340

            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.

    342

            For these reasons, I respectfully dissent.

    344

            HARRISON, J., joins in this dissent.

    347
    ATTACHMENT

    350
    APPENDIX TO DISSENT
    352

            Alabama

    354

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

    356

            Arizona

    358

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

    360

            Colorado

    362

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

    364

            Connecticut

    366

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

    368

            Delaware

    370

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

    372

            Georgia

    374

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

    376

            Ga.Code Ann. § 51--1--40 (1994)

    378

            [165 Ill.2d 522] Idaho

    380

            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)

    382

            Indiana

    384

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

    386

            Iowa

    388

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

    390

            Louisiana

    392

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

    394

            Maine

    396

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

    398

            Massachusetts

    400

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

    402

            Michigan

    404

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

    406

            Minnesota

    408

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

    410

            Montana

    412

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

    414

    Page 174

    416

            [209 Ill.Dec. 246] New Jersey

    418

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

    420

            New Mexico

    422

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

    424

            New York

    426

            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)

    428

            North Carolina

    430

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

    432

            Ohio

    434

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

    436

            [165 Ill.2d 523] Oregon

    438

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

    440

            Pennsylvania

    442

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

    444

            Utah

    446

            Utah Code Ann. § 32A--14--101 (1994)

    448

            Vermont

    450

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

    452

            Washington

    454

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

    456

            Wisconsin

    458

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

  • 2 Kelly v. Gwinnell--"The New Jersey (Minority) Rule for Social Host Liability"

    How does this court interpret the duty of social hosts to prevent the intoxicated from driving?

    2

    Page 538

    5
    96 N.J. 538

    8
    476 A.2d 1219

    11
    Marie E. KELLY, Plaintiff-Appellant,
    v.
    Donald C. GWINNELL and Paragon Corp., Defendants-Appellants,
    and
    Joseph J. Zak and Catherine Zak, Defendants-Respondents.

    14
    Supreme Court of New Jersey.

    17
    Argued Feb. 21, 1984.
    Decided June 27, 1984.
    19

            [476 A.2d 1220]

    21

    Page 540

    23

            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).

    25

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

    27

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

    29

            The opinion of the Court was delivered by

    31

            WILENTZ, C.J.

    33

            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

    35

    Page 541

    37

            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.

    39

            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.

    41

            Kelly sued Gwinnell and his employer; those defendants sued the Zaks in a third party action; and thereafter plaintiff amended

    43

    Page 542

    45

            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

    47

    Page 543

    49

            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

    51

    Page 544

    53

            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).

    55

            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

    57

    Page 545

    59361

            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

    63

    Page 546

    65467

            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.

    69

            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

    71

    Page 547

    73575

            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

    77

            The argument is made that the rule imposing liability on licensees is justified because licensees, unlike social hosts,

    79

    Page 548

    81

            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

    83

    Page 549

    85

            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.

    87

            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

    89

    Page 550

    919931095

    Page 551

    97

            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.

    99

            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

    101

    Page 552

    103

            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

    105

    Page 553

    107

            [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).

    109

    Page 554

    111

            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

    113

            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).

    115

            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.

    117

    Page 555

    119

            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).

    121

            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

    123

    Page 556

    12514127

            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

    129

    Page 557

    131

            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.

    133

            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

    135

    Page 558

    137

            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?

    139

            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

    141

    Page 559

    143

            [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.

    145

            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.

    147

    Page 560

    149

            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.

    151

            GARIBALDI, J., dissenting.

    153

            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.

    155

            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.

    158
    I
    160

            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.

    162

    Page 561

    1641166

            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).

    168

            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

    170

    Page 562

    172

            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.

    174

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

    176

    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.

    178

            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:

    180

    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

    182

    Page 563

    184

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

    186

    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.

    188

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

    190

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

    192

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

    194

    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.

    196

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

    198

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

    201
    II
    203

            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.

    205

    Page 564

    207

            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.

    209

            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.

    211

            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.

    213

    Page 565

    215

            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.

    217

            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.

    219

            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.

    221

            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.

    223

            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

    225

    Page 566

    227

            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

    229

    Page 567

    231

            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.

    233

            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.

    235

            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?

    237

    Page 568

    240
    III
    242

            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.

    244

            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.

    246

            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.

    248

            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.

    250

    Page 569

    252

            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.

    254

            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.

    256

            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.

    259
    IV
    261

            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

    263

    Page 570

    265

            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.

    267

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

    269

            Opposed --Justice GARIBALDI--1.

    271

    ---------------

    273 274

    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.

    276

    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.

    278

    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.

    280

    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).

    282

    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.

    284

    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.

    286

    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.

    288

    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.

    290

    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).

    292

    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.

    294

    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.

    296

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

    298

    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.

    300

    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.

    302

    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.

    304

    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.

    306

    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).

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