dissenting:
Recognizing a duty by a provider of alcoholic beverages to protect a consumer from his own intoxication denigrates the concept of individual responsibility, encourages overindulgence, and contravenes public policy. Accordingly, I respectfully dissent.
Petitioner’s first claim is grounded in common law negligence. We must examine, therefore, whether her son, Timothy Lyons, could have recovered for his injuries had he survived. Until recently, the common law provided no remedy against one who furnished liquor to a person who voluntarily became intoxicated and consequently injured himself or another. This rule was based on the theory that the proximate cause of injury was the act of the consumer in drinking the liquor and not the act of the person providing it.
A proximate causation analysis balances philosophic, pragmatic, and moral approaches to causation. See Kowal v. Hofher, 181 Conn. 355, 436 A.2d 1 (1980). A policy decision as to which party should be held responsible for a particular injury is often incorporated into the concept of “proximate cause.” The common law rule that the provider of alcohol did not “cause” the injury, reflects the decision that human beings, drunk or sober, are responsible for their own torts. See Wright v. Moffitt, 437 A.2d 554 (Del.1981); State v. Hatfield, 197 Md. 249, 78 A.2d 754 (1951). Common law did not recognize the existence of proximate cause because an intoxicated person’s injury “was the result of his own negligence or his own voluntary act of rendering himself incapable of driving a car rather than the remote act of the [provider] in dispensing the liquor....” Reed v. Black Caesar’s Forge Gourmet Restaurant, 165 So.2d 787, 788 (Fla.App.1964).
The common law rule proved to be harsh in those cases where an intoxicated person injured an innocent third party. Because the third party had no role in causing the inebriate’s intoxication, whereas the provider and the consumer both participated in placing the dangerous force in motion which eventually injured the third party, it was considered fair to recognize a cause of action in favor of the third party against the provider of alcohol. We recognized such an action in Largo Corp. v. Crespin, 727 P.2d 1098 (Colo.1986). Almost every jurisdiction has recognized or established a cause of action for the innocent third party, *1261either through dram shop legislation or judicially created common law. See Sorensen v. Jarvis, 119 Wis.2d 627, 350 N.W.2d 108 (1984) (appendix contains list of those jurisdictions which have recognized common law liability against a tavern owner for injuries sustained by third persons as a result of the acts of an intoxicated patron).
However, these same compelling reasons are not found where the consumer of alcohol himself is injured. Although interpreting a dram shop act, the Minnesota Supreme Court aptly stated: “To hold otherwise, we believe, would be to permit one who has been an intentional accessory to the illegality to shift the loss resulting from it to a person no more responsible for the damage than he himself has been. So considered, the case is different from that of the party who suffers loss at the hands of a person -with whose intoxication he had no involvement....” Turk v. Long Branch Saloon, 280 Minn. 438, 442, 159 N.W.2d 903, 906 (1968). This sentiment was also expressed in Reed v. Black Caesar’s, 165 So.2d 787, 788 (Fla.App.1964), when the court stated: “We find no authority, absent legislative enactment, to extend the same protection to those who become voluntarily drunk so that a right of action arises in them because of injury caused by their own intoxication as is sometimes extended to third persons who are injured by such intoxicated persons.” Many jurisdictions which have created a cause of action for an innocent third party have denied a cause of action to the consumer himself. See, e.g., Sutter v. Hutchings, 254 Ga. 194, 327 S.E.2d 716 (1985); Bertelmann v. Taas Assoc., 735 P.2d 930 (Haw.1987); Cuevas v. Royal D’Iberville Hotel, 498 So.2d 346 (Miss.1986); Trujillo v. Trujillo, 104 N.M. 379, 721 P.2d 1310 (1986); Miller v. City of Portland, 288 Or. 271, 604 P.2d 1261 (1980).1
Courts have denied a claim to an intoxicated person who injures himself on several grounds. Some courts have retained the common law rule that the consumer’s injuries are caused by his own actions rather than those of the provider of alcoholic beverages. See Nolan v. Morelli, 154 Conn. 432, 226 A.2d 383 (1967); Wright v. Moffitt, 437 A.2d 554 (Del.1981); Reed v. Black Caesar’s, 165 So.2d 787 (Fla.App.1964); Fisher v. O’Connor’s, Inc., 53 Md.App. 338, 452 A.2d 1313 (1982); Yoscovitch v. Wasson, 98 Nev. 250, 645 P.2d 975 (1982); Webb v. Regua Ltd. Partnership, 624 F.Supp. 471 (E.D.Va.1985).
Other courts have found that the intoxicated person assumed the risk, was contrib-utorily negligent by law, or defeated his own cause of action through his willful and wanton misconduct. See Sissle v. Stefenoni, 88 Cal.App.3d 633, 152 Cal.Rptr. 56 (1979); Sutter v. Hutchings, 254 Ga. 194, 327 S.E.2d 716 (1985); Davis v. Stinson, 508 N.E.2d 65 (Ind.App.1987); Thrasher v. Leggett, 373 So.2d 494 (La.1979); Swartzenberger v. Billings Labor Temple, 179 Mont. 145, 586 P.2d 712 (1978); Tome v. Berea Pewter Mug, Inc., 4 Ohio App.3d 98, 446 N.E.2d 848 (1982); Kemock v. Mark II, 62 Ohio App.2d 103, 404 N.E.2d 766 (1978).
A third approach used by courts to deny liability is to find that the provider of intoxicating beverages owes the consumer no duty to protect him from the results of his own intoxication, or that public policy considerations preclude the creation of a cause of action. See Bertelmann v. Taas Assoc., 735 P.2d 930 (Haw.1987); Trujillo v. Trujillo, 104 N.M. 379, 721 P.2d 1310 (1986); Allen v. County of Westchester, 109 A.D.2d 475, 492 N.Y.S.2d 772 (1985); Miller v. City of Portland, 288 Or. 271, 604 P.2d 1261 (1980); Olsen v. Copeland, 90 Wis.2d 483, 280 N.W.2d 178 (1979) (overruled in cases where third party is injured); Garcia v. Hargrove, 46 Wis.2d 724, 176 N.W.2d 566 (1970) (overruled in cases where third party is injured).
*1262Finally, several courts have declined to make a public policy determination, and have deferred to the legislature on this issue. See Carr v. Turner, 238 Ark. 889, 385 S.W.2d 656 (1965); Felder v. Butler, 292 Md. 174, 438 A.2d 494 (1981); Holmes v. Circo, 196 Neb. 496, 244 N.W.2d 65 (1976).
I believe, as did the court of appeals in Lyons v. Nasby, 748 P.2d 1341 (Colo.App.1987), that the best way to approach this issue is to determine whether the provider of intoxicating beverages owes a duty to protect a consumer from his own intoxication. Although I agree that a provider owes a duty to protect an innocent third party from the results of a consumer’s intoxication, I do not believe that this duty extends to the intoxicated person himself.
The determination of whether a duty is owed involves weighty policy considerations. One court has described the considerations involved in determining whether a duty exists as follows:
An affirmative declaration of duty simply amounts to a statement that two parties stand in such relationship that the law will impose on one a responsibility for the exercise of care toward the other. Inherent in this simple description are various and sometimes delicate policy judgments. The social utility of the activity out of which the injury arises, compared with the risks involved in its conduct; the kind of person with whom the actor is dealing; the workability of a rule of care, especially in terms of the parties' relative ability to adopt practical means of preventing injury; the relative ability of the parties to bear the financial burden of injury and the availability of means by which the loss may be shifted or spread; the body of statutes and judicial precedents which color the parties’ relationship; the prophylactic effect of a rule of liability; ... and finally, the moral imperatives which judges share with their fellow citizens — such are the factors which play a role in the determination of duty.
Raymond v. Paradise Unified School Dist., 218 Cal.App.2d 1, 3-4, 31 Cal.Rptr. 847, 851-52 (1963). See also Swartz v. Huffmaster Alarms Sys., 145 Mich.App. 431, 377 N.W.2d 393 (1985).
In applying these factors, I do not find that a provider stands in such a relationship to an inebriated consumer that the law should impose a duty on the provider to act for the benefit of the consumer. The concerns of public policy do not extend to protect an intoxicated adult from the results of his own intoxication. A person who intends to drink, before he picks up that first glass of liquor, should be aware that he is solely responsible for whatever havoc he may wreak upon himself. To give such person a cause of action against the provider shifts the responsibility from the imbiber, and says that to this extent the consumer need not be responsible. Any shifting of the blame from the intoxicated person, especially an intoxicated driver, is contrary to sound public policy. See Olsen v. Copeland, 90 Wis.2d 483, 280 N.W.2d 178 (1979).
This underlying rationale, that a consumer of alcoholic beverages should be responsible for his own actions, was explained in Kindt v. Kauffman, 57 Cal.App.3d 845, 855-58, 129 Cal.Rptr. 603, 610-12 (1976):
The inestimable gift of reason and self-control cries out for preservation in every person, and the duty of its preservation devolves upon each member of the public. When the restraint of reason and the ability to care for one’s self are perverted by a conscious, self-indulgent act of voluntary intoxication which temporarily casts off those powers, no societal or personal wrong, nor violation of public or social policy is accomplished or violated if the actor is alone held answerable for his injury....
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Government paternalism protecting people from their own conscious folly fosters individual irresponsibility and is normally to be discouraged.... To go yet another step and allow monetary recovery to one who knowingly becomes intoxicated and thereby injures himself is in our view morally indefeasible.
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*1263... Heretofore, no recovery has been allowed such a plaintiff; to now allow it in any degree would be to award a pure and simple financial windfall to an undeserving plaintiff, which no amount of temporal theorizing can change.
I agree that imposing liability on a provider would contravene public policy. Rather, we should be guided by the policy that “human beings, drunk or sober, are responsible for their own torts.” State v. Hatfield, 197 Md. 249, 78 A.2d 754, 756 (1951). Allowing petitioner’s cause of action against the respondent would only erode that responsibility.2 To recompense an intoxicated person for injury to himself or his property resulting from his own overindulgence tends to encourage, rather than to discourage, such overindulgence.
In addition, I do not believe that placing liability on the seller of alcoholic beverages would deter service of a drink to a visibly intoxicated customer. The seller already has a statutory duty not to serve intoxicants to one who is visibly intoxicated. If he breaches this duty, he risks both criminal penalties and civil suits brought by injured third parties. No additional deterrence will be gained by imposing liability for an intoxicated consumer’s injury. However, such added liability will relieve a consumer of his personal responsibility. I believe that it cuts against the grain of good public policy to provide the person with the primary responsibility recourse for losses against one who is only secondarily responsible.
This situation may be compared to one in which a participant in an illegal act seeks to recover from another participant in that act. In such a case, the parties are deemed in pari delicto, and the law will aid neither. See, e.g., Isaak v. Perry, 118 Colo. 93, 193 P.2d 269 (1948); Italian-American Bank v. Lepore, 79 Colo. 466, 246 P. 792 (1926). Here, Timothy Lyons willingly drank the alcohol served to him while he was intoxicated. He then got behind the wheel of his car in a drunken state, contrary to law, and died as a result. “To allow recovery in favor of one who has voluntarily procured a quantity of liquor for his or her own consumption with full knowledge of its possible or probable results ‘would savor too much of allowing [said] person to benefit by his or her own wrongful act.’ ” Allen v. County of Westchester, 109 A.D.2d 475, 480, 492 N.Y.S.2d 772, 776 (1985) (quoting Buntin v. Hutton, 206 Ill.App.194, 199 (1917)). See also Bertelmann v. Taas Assoc., 735 P.2d 930 (Haw.1987); Trujillo v. Trujillo, 104 N.M. 379, 721 P.2d 1310 (1986); Miller v. City of Portland, 288 Or. 271, 604 P.2d 1261 (1980).
The majority concludes that the policy concerns enumerated above will be accommodated by submitting the issue of comparative negligence to the jury. I disagree. The jury’s function is to determine questions of fact, not to determine whether a duty exists. This is a question of law. Therefore, the decision whether a person may recover for the results of his own intoxication should be made by this court.
Even if it were proper to impose a duty on the provider of intoxicating beverages, in this case petitioner should be precluded from recovering because her son voluntarily consumed the liquor and then drove his car in violation of law. Where one consciously chooses a dangerous course of action with knowledge of facts which, to a reasonable mind, create a strong probability that injuries to others will result, his conduct is wanton. Steeves v. Smiley, 144 Colo. 5, 354 P.2d 1011 (1960). I can reach no other conclusion than to find that the petitioner’s son acted in a willful and wanton manner by driving his car on mountain roads while intoxicated. I believe, as a matter of law, this degree of recklessness evidenced an absolute failure to exercise reasonable -care under conditions which rendered probable a likelihood that harm *1264would result to himself or others, and thus bars petitioner from recovering.
Several other courts have reached the same conclusion. In Trenier v. California Investment & Development Corp., 105 Cal.App.3d 44, 164 Cal.Rptr. 156 (1980), the court found that the plaintiff, who drove when he was clearly in no condition to do so and created a potent and lethal threat not only to his own safety, but also to the safety of any others, was guilty of willful misconduct and could not recover against the person who served him alcoholic beverages. In Davis v. Stinson, 508 N.E.2d 65 (Ind.App.1987), the court determined that a person who drives while intoxicated is guilty of willful and wanton misconduct as a matter of law, and recovery is barred. See also Kemock v. Mark II, 62 Ohio App.2d 103, 404 N.E.2d 766 (1978).
Where, as here, an intoxicated person drives his vehicle in reckless disregard for the safety of others, he is by law, more than 50% responsible for any injuries he causes to himself. As between the provider and the consumer of an alcoholic beverage, the consumer has the last opportunity to avoid the effect of the alcohol, by not drinking or not driving, and thus as between the two, the negligence of the consumer is the greater. Sutter v. Hutchings, 254 Ga. 194, 327 S.E.2d 716 (1985). I would, therefore, find as a matter of law that petitioner is barred from recovering in this case.
Petitioner also claims that the provider was negligent per se because section 12-46-112, 5 C.R.S. (1973) (beer code), and section 12-47-128, 5 C.R.S. (1973) (liquor code), were violated. In Largo Corp. v. Crespin, 727 P.2d 1098 (Colo.1986), we determined that section 12-47-128(1)(a) was designed, at least in part, to protect third parties from injuries caused by the sale of alcohol to a visibly intoxicated person. We stated that one of the purposes of the liquor code was to insure public safety. However, there is no indication that this provision was intended to protect an intoxicated person from the consequences of his own intoxication. The prohibition against serving alcohol to an intoxicated person was created to protect the general public from drunk driving accidents. See Bertelmann v. Taos Assoc., 735 P.2d 930 (Haw.1987). I do not believe the legislature intended to impose liability upon a seller of alcohol3 to an adult individual, who voluntarily consumes the alcohol, and then by reason of his intoxicated condition, injures himself. I would, therefore, find that such a person is excluded from the class of persons protected by this safety statute. See Noonan v. Galick, 19 Conn.Supp. 308, 112 A.2d 892 (1955); Wright v. Moffitt, 437 A.2d 554 (Del.1981); Fisher v. O’Connor’s, Inc., 53 Md.App. 338, 452 A.2d 1313 (1982); Cuevas v. Royal D’Iberville Hotel, 498 So.2d 346 (Miss.1986); Hamm v. Carson City Nugget, Inc., 85 Nev. 99, 450 P.2d 358 (1969).
For the foregoing reasons, I would hold that a person who becomes intoxicated, and injures himself as a result of such intoxication, is solely responsible for his losses. In this way, personal responsibility is reinforced, rather than passed to another.
Accordingly, I respectfully dissent.
I am authorized to say that Justice VOL-LACK and Justice MULLARKEY join me in this dissent.
. The majority assumes that, because we recognized a cause of action to an innocent third party injured by an inebriated consumer, we are inexorably bound to gijant a cause of action to the injured consumer as well. I note that even after the courts in Georgia, Hawaii, New Mexico, and Oregon judicially created a cause of action in favor of an injured third party, they found that where a consumer injures himself the situation is sufficiently distinguishable so as to preclude recovery. I believe that we should deny recovery on the same basis.
. In criminal law, a person who voluntarily becomes intoxicated is liable for his acts in committing a crime. Intoxication is no defense to a crime where the mens rea is “knowingly,” "willfully,” "recklessly,” or "with criminal negligence.” Hendershott v. People, 653 P.2d 385 (Colo.1982), cert. denied, 459 U.S. 1225, 103 S.Ct. 1232, 75 L.Ed.2d 466 (1983). This is because self-induced intoxication, by its very nature, is morally blameworthy. Id. at 396.
. As noted in the majority opinion, at 1253, the legislature in 1986, decided, as a matter of public policy, that no civil action may be brought by the consumer against the seller or server of alcoholic beverages. While the 1986 amendment does not apply to this case, it supports, at least inferentially, my view of the underlying legislative intent. See Klotz v. Persenaire, 138 Mich.App. 638, 360 N.W.2d 255 (1984).