¶23 (dissenting) — Washington taxpayers should not be forced to pay massive judgments to criminal motorists who cause injuries to themselves or their passengers. The majority impermissibly uses Keller v. City of Spokane, 146 Wn.2d 237, 44 P.3d 845 (2002), as a broad broom, sweeping the legal causation prong into the duty prong of the common law negligence analysis. In this way, the majority relies on Keller’s narrow language about municipalities’ duties to motorists to not only answer the duty question but also sweep in the legal causation question, presuming that the first necessarily answers the second.
¶24 Legal causation “is grounded in policy determinations as to how far the consequences of a defendant’s acts should extend.” Crowe v. Gaston, 134 Wn.2d 509, 518, 951 P.2d 1118 (1998). It certainly cannot be a wise policy of this state to make Washington taxpayers insurers on behalf of criminal motorists.
¶25 I would preserve the court’s “gatekeeper” function noted in Keller,2 holding that a court may find that criminal acts break the causal chain and thus are not the legal cause in a common law negligence action against a municipality. I would accordingly affirm the Court of Appeals. On these grounds, I respectfully dissent.
Facts and Procedural History
¶26 Nathan Lowman met Jennifer Wilbur at the Country Corner Bar and Grill in Skagit County on the night of August 5, 2005. He admitted that they both had been drinking that evening. Lowman also told a Washington State Patrol (WSP) investigator that he had seen Wilbur drink at least two cocktails that evening, and he stated in his complaint that Wilbur was “apparently intoxicated” and *176unfit to operate a motor vehicle. Clerk’s Papers at 524-25. Despite this knowledge and his instinct to the contrary, Lowman agreed to ride as Wilbur’s passenger.
¶27 Wilbur began driving with Lowman along Satterlee Road, a two-lane, curvy, country road near Anacortes, Washington. The posted speed limit was 25 miles per hour, and there were signs to warn drivers of curves in the road. As Wilbur was driving down a steep hill and trying to negotiate the turns in the roadway, she lost control of her vehicle, left the road, and hit a Puget Sound Energy (PSE) utility pole. The WSP estimated that Wilbur’s car was traveling, at a minimum, between 34 and 38 miles per hour upon impact. Additionally, later testing showed that Wilbur had nearly twice the legal limit of alcohol in her system, measuring 0.14.3 Lowman sustained severe injuries and permanent disfigurement to his right arm. Wilbur pleaded guilty to vehicular assault under RCW 46.61.522(l)(c), a class B felony. In addition to monetary penalties, the court sentenced Wilbur to three months in jail, a year of community custody, and driving under the influence/substance abuse treatment and conditions.
¶28 Lowman then filed a negligence claim against PSE and Skagit County for misplacement of the utility pole. The trial court granted PSE and Skagit County’s joint motion for summary judgment, dismissing Lowman’s claims against those parties. The court concluded that the alleged negligent acts of PSE and Skagit County were not the legal cause of Lowman’s injuries. The Court of Appeals affirmed the trial court’s order granting summary judgment. As noted, I would affirm the Court of Appeals.
Analysis
¶29 In order to recover in a common law negligence action in the state of Washington, a plaintiff “must show (1) *177the existence of a duty to the plaintiff, (2) a breach of that duty, (3) a resulting injury, and (4) the breach as the proximate cause of the injury.” Crowe, 134 Wn.2d at 514. “Washington law recognizes two elements to proximate cause: [clause in fact and legal causation.” Hartley v. State, 103 Wn.2d 768, 777, 698 P.2d 77 (1985). Here, legal causation is the only element at issue because PSE and Skagit County stipulated to the elements of duty, breach, resulting injury, and cause in fact for the purpose of summary judgment only.
¶30 Legal causation “is grounded in policy determinations as to how far the consequences of a defendant’s acts should extend.” Crowe, 134 Wn.2d at 518. A determination of liability based on legal causation is a mixed consideration of logic, common sense, justice, policy, and precedent in deciding whether a defendant’s breach of duty is too remote or insubstantial. Hartley, 103 Wn.2d at 779, 784. Legal causation is generally a question of law. Kim v. Budget Rent A Car Sys., Inc., 143 Wn.2d 190, 204, 15 P.3d 1283 (2001).
Keller v. City of Spokane
¶31 The majority contends that Washington’s law regarding legal causation was substantially impacted when this court decided Keller, 146 Wn.2d 237. In that case, we held that a municipality owes a duty to both negligent and fault-free drivers but we explicitly clarified that “the court still retains its gatekeeper function and may determine that a municipality’s actions were not the legal cause of the accident.” Id. at 249, 252.
¶32 The majority fails to recognize that Keller’s relevant holdings were restricted to comparative fault and municipal duty. The case does not provide support for collapsing the duty prong into the legal causation prong of the common law negligence analysis, as the majority suggests. In fact, the only time the case even mentions “legal cause” is to note that a legal cause determination is made separate and apart from the legal duty determination, preventing mu*178nicipalities from becoming insurers of negligent acts. Id. at 252. The wisdom of this language is made obvious in this case. By making the duty analysis determinative of legal causation, municipalities — and by extension, taxpayers— become insurers of drivers’ own criminal behavior.
¶33 The majority quotes heavily from Schooley v. Pinch’s Deli Market, Inc., 134 Wn.2d 468, 951 P.2d 749 (1998). See majority at 171-72. However, the majority misses a key point made in the case:
[A] court should not conclude that the existence of a duty automatically satisfies the requirement of legal causation. This would nullify the legal causation element and along with it decades of tort law. Legal causation is, among other things, a concept that permits a court for sound policy reasons to limit liability where duty and foreseeability concepts alone indicate liability can arise.
Schooley, 134 Wn.2d at 479.
¶34 The majority makes two statements that indicate its insistence on making a finding of duty is also determinative of legal causation. First, “[i]f Lowman’s injuries were in fact caused by the placement of the utility pole too close to the roadway, then they cannot be deemed too remote for purposes of legal causation.” Majority at 171. Second, “[i]f a jury concludes that Lowman suffered injuries within the scope of the duty owed to Lowman — i.e., that his injury was not too remote — then there is no basis to foreclose liability as a matter of legal cause.” Id. at 172.1 fundamentally disagree with both of these statements.
¶35 Legal causation is itself a determination separate from the other factors in the common law negligence analysis. Regardless of whether Lowman’s injuries were caused by the placement of the utility pole,4 the court has an obligation to define the scope of duty and draw the line *179for liability. This legal causation analysis is based in part on policy considerations, and the consequences of criminal behavior may be so remote as to justify foreclosure of a municipality’s liability. This is a sound public policy that prevents taxpayers from insuring against the consequences of criminal behavior. If we embrace the policy set forth in the majority opinion, this state is, in essence, incentivizing crime by removing some of the financial risk associated with criminal behavior.
Conclusion
¶36 This court maintains a long tradition of embracing the following principle: “ ‘Given a choice between a rule that fosters individual responsibility and one that forsakes personal accountability, we opt for personal agency over dependency and embrace individual autonomy over paternalism.’ ” Schooley, 134 Wn.2d at 491 (Sanders, J., dissenting) (quoting Estate of Kelly v. Falin, 127 Wn.2d 31, 42, 896 P.2d 1245 (1995)). In a sweeping move that defies our precedent, the majority takes the legal causation determination out of the hands of the court in negligence actions such as this one. Such a move will most certainly open this state’s taxpayers to liability based on the criminal acts of others. No longer will criminal motorists such as Wilbur need to take responsibility for the consequences of their actions. Instead, the taxpayers of this state will be the insurers against harm caused by criminal behavior. Because I do not support foreclosing a court’s ability to determine that no legal cause is present in torts caused by criminal action, I dissent.
“[T]he court still retains its gatekeeper function and may determine that a municipality’s actions were not the legal cause of the accident.” Keller, 146 Wn.2d at 252.
RCW 46.61.502(l)(a) provides that a person is guilty of driving while under the influence if “the person has, within two hours after driving, an alcohol concentration of 0.08 or higher.”
Based on the limited record, there is no showing that the county or utility company could have even located the utility pole 10 feet off the road (likely outside the right-of-way). For various reasons, including property lines and the character *179of the land along Satterlee Road, this “clear zone” could have been an impossibility with respect to the utility pole in question.