¶17 (concurring) — Because the majority paints with a fairly broad brush, some of its general statements might be misinterpreted as standing for the incorrect conclusion that legal causation has no independent meaning as an element of a negligence action. For example, the majority says that the reasoning that underlies the holding in Keller v. City of Spokane, 146 Wn.2d 237, 44 P.3d 845 (2002), that the duty to design and maintain reasonably safe roadways extends to negligént and fault-free persons applies equally to the issue of legal causation. Majority at 167. Therefore, the majority reasons, if the jury finds cause-in-fact in this context, then legal causation must exist as well. Id. Read out of context, this appears to say that legal causation is necessarily found if duty and cause-in-fact exist.
¶18 I write separately to emphasize, however, that the majority opinion should not be broadly read to mean that whenever duty exists and cause-in-fact is found, legal causation exists. Any such interpretation would involve an incorrect statement of law. Rather, some considerations involved in deciding whether a duty exists may also be relevant considerations when determining legal causation. However, this does not mean that legal causation and duty are congruent — they are not.
¶19 A careful reading of the majority shows this to be the case. For example, the majority says that it disagrees with the premise that Keller’s holding pertains only to the question of duty. Id. at 171. But then an important qualifier follows. The majority adds that “[m]any of the same concerns that guided the duty analysis in Keller must guide the analysis of legal causation in this case.” Id. This means that a court must independently examine the questions of duty and legal causation, recognizing that the same or similar policy concerns may apply to each but do not substitute for the distinct elements of the cause of action.
¶20 In the context here, the close relationship between duty and legal causation occurs because of the fundamental *174policy questions involved in deciding whether a duty to design and maintain roadways is owed to drivers who are themselves negligent and whether legal causation can be found notwithstanding the negligence of the driver. It is the particular context that produces this close relationship. Of course, if, rather than describing the similarities here, the majority instead engaged in a detailed description of the duty found in Keller and then independently engaged in a detailed analysis of legal causation here, the relationship between the elements in this context might be clearer. It would show more unmistakably how the elements of duty and legal causation are driven by many of the same considerations and would also show whether additional policy-based considerations are at work.1
¶21 At the end of the day, there is no shortcut. Parties are advised that they cannot simply reduce this case to a formula of “duty plus cause-in-fact equals legal causation.” Rather, duty and legal causation are separate elements that must be determined in accord with our cases. E.g., Schooley v. Pinch’s Deli Mkt., Inc., 134 Wn.2d 468, 951 P.2d 749 (1998); Hartley v. State, 103 Wn.2d 768, 698 P.2d 77 (1985).
¶22 With these clarifications, I join the majority opinion.
Although the dissent is justifiably concerned about taxpayers ultimately paying for damages arising out of criminal behavior, and it seems counterintuitive to speak of public policy favoring legal causation when both the driver and the plaintiff-passenger are intoxicated, the legislature appears to be moving in this direction.
For example, the legislature has weighed in on the question of proximate cause where the driver of a motor vehicle is intoxicated and her intoxicated passenger is injured. At one time, intoxication of the plaintiff was a complete defense to liability if the intoxication was a proximate cause of the injury and the plaintiff was found to be more than 50 percent at fault. The legislature amended the relevant statute to state an exception that provides that this rule does not apply in a personal injury action against an intoxicated motor vehicle driver whose condition was a proximate cause of the injury and the intoxicated plaintiff’s condition was not a proximate cause of the injury causing occurrence. RCW 5.40.060(2). The amendment reflects legislative policy altering the element of legal causation when intoxicated drivers are involved in accidents on the roadways.