dissenting:
Because I believe that the responsibility for injuries suffered by a person who drinks and drives lies with that individual, I conclude that the trial court and the court of appeals reached the proper conclusion in declining to find a duty on the part of Cowan.1 While the majority recognizes that voluntary intoxication is socially undesirable conduct, see maj. op. at 362, it nevertheless rewards such conduct by permitting the person who drinks to excess to recover money from another for injuries sustained while intoxicated. I find these two positions contradictory and, accordingly, I disagree with the majority’s conclusion that Cowan owed a duty to Casebolt to protect him from the fatal injuries proximately caused by his own consumption of alcohol. I, therefore, respectfully dissent.
I
Casebolt and his wife, Susan, owned two cars. The title to the Pinto that Casebolt normally drove to work was in his wife’s name and the title to the other car, a Cavalier, was in both their names. The Pinto could be driven on short trips but had a tendency to overheat. Consequently, on the two days prior to the day of the fatal accident, Casebolt drove the Cavalier to his job in Idaho Springs. The undisputed facts establish that the evening before the fatal accident, because Susan Casebolt needed the Cavalier the next day, Casebolt requested, and Cowan granted, use of an automobile for the purpose of traveling from his home to the job site in Idaho Springs. Casebolt had not been drinking on the day he requested use of the car. Casebolt drove the Pinto to Cowan’s office to obtain the borrowed car. Casebolt used the vehicle, as requested, to get from his home to Idaho Springs the next day. Once the work was completed, Casebolt and several coworkers, including Cowan, consumed beer at the job site, which was provided by the job site owner. Cowan admitted to seeing Casebolt consume one beer at the site. After leaving the project site, Case-bolt, several other crew members, and Co-wan had lunch together. Cowan acknowledges that Casebolt drank one beer at lunch and that, after lunch, Cowan observed Casebolt go to the bar with several of his coworkers. When Cowan went over to the bar, they told him that they were going to “have a beer after lunch.” Nothing in the record indicates that Cowan in any way encouraged Casebolt to drink or observed Casebolt in a state of visible intoxication at that time. Cowan did not pay for anyone’s beer but his own. Cowan left the restaurant after lunch. While the record does not clearly establish how many beers Casebolt consumed while in Cowan’s presence, it is undisputed that Casebolt was not intoxicated when Cowan left the restaurant at approximately 1:00 p.m. See maj. op. at 354.
*364Juli Gosney, a waitress at the restaurant where Casebolt had lunch, executed an affidavit in which she stated that, before Case-bolt left the restaurant that afternoon, he asked her to go on a date with him. Having told him that she did not get off work until 6:00 p.m., Casebolt returned to the restaurant at approximately 5:30 p.m. to meet Gosney for their date. Gosney subsequently decided not to go out with Case-bolt. When she told him that she had changed her mind, Casebolt did not appear intoxicated to her. Gosney left the restaurant when her shift was over. As she was leaving, she observed Casebolt walking across the street alone.
At approximately 6:30 p.m., Casebolt, while intoxicated, drove the borrowed car east in the westbound lane on the highway, and as a result of an ensuing collision, suffered fatal injuries. Asserting that Co-wan was negligent in entrusting the car to Casebolt, Casebolt’s wife and children sued Cowan for wrongful death. This case does not involve any injured third party or en-trustment of an inherently dangerous object.
II
I do not dispute the majority’s holding that “the doctrine of negligent entrustment is part of the law of negligence in this state.” See maj. op. at 357. However, because negligent entrustment is one theory under the law of negligence, it is necessary that, for the cause of action to stand, there first be a duty recognized under the facts of the case. The duty allegedly breached must be owed to the person making the negligence claim. See University of Denver v. Whitlock, 744 P.2d 54, 56-57 (Colo.1987) (duty of care upon defendant must be for benefit of plaintiff). In this case, since the claim is based on wrongful death, the plaintiffs can maintain an action only if Casebolt could have done so had his injuries not been fatal. Sigman v. Seafood Ltd. Partnership I, 817 P.2d 527, 530 (Colo.1991). Here, since I believe that there was no duty owed to Casebolt by Cowan at the time of this accident, Case-bolt could not have maintained this action. I would, therefore, affirm the grant of summary judgment. Summary judgment would be appropriate because, once it is determined that no duty exists, a claim for negligence would not lie, a determination of material facts would not affect the outcome, and Cowan would be entitled to judgment as a matter of law. C.R.C.P. 56(c); Churchey v. Adolph Coors Co., 759 P.2d 1336, 1339-40 (Colo.1988).
A
The majority finds that section 390 of the Restatement (Second) of Torts (1965) (“Restatement”) establishes a framework for examining whether Cowan owed Casebolt a duty here. See maj. op. at 358. I believe, however, that the negligent entrustment . principles set out in the Restatement do not support imposition of a duty owed to these particular plaintiffs.
Section 308 of the Restatement, entitled “Permitting Improper Persons to Use Things or Engage in Activities,” provides:
It is negligence to permit a third person to use a thing or to engage in an activity which is under the control of the actor, if the actor knows or should know that such person intends or is likely to use the thing or to conduct himself in the activity in such a manner as to create an unreasonable risk of harm to others.
(Emphasis added.) Thus, section 308 is not concerned with injuries suffered by the en-trustee, but only with third party injuries as a result of entrustment of a chattel to an individual whom the entrustor knows or should know will misuse the object. See Restatement § 308 cmt. b (1965). All the illustrations to section 308 involve third-party injury. See id., illus. 1-4. Decisions from Colorado and other jurisdictions have considered and applied the rule of section 308 in the context of third-party injuries, not to cases where the injuries occur to the entrustee.2
*365Utilizing section 308 only for the purpose of setting forth the general form of the negligent entrustment doctrine, see maj. op. at 356, the majority turns to section 390 of the Restatement and concludes that it provides a basis for resolution of the issue of duty. The majority states that the duty it is examining is “whether a supplier of a chattel owes any obligation to a person incurring physical harm from the use of the chattel by the person to whom it is supplied.” See maj. op. at 358. It is important to note, however, that under these facts, we are interested only in whether such a duty is owed to the entrustee who incurs physical harm, not to injured third parties. With this duty as my focus, I conclude that the facts here do not fall within the scope of section 390. Section 390 of the Restatement, entitled “Chattel for Use by Person Known to be Incompetent,” provides:
One who supplied directly or through a third person a chattel for the use of another whom the supplier knows or has reason to know to be likely because of his youth, inexperience, or otherwise, to use it in a manner involving unreasonable risk of physical harm to himself and others whom the supplier should expect to share in or be endangered by its use, is subject to liability for physical harm resulting to them.
(Emphasis added.) Unlike section 308, section 390 covers injuries to the entrustee and has been used to support successful assertions of negligent entrustment in cases brought by entrustees. See Keller v. Kiedinger, 389 So.2d 129 (Ala.1980) (en-trustee of car was 14-year-old unlicensed driver); Blake v. Moore, 162 Cal.App.3d 700, 208 Cal.Rptr. 703 (1984) (defendant supplied alcohol and then entrusted car to obviously intoxicated plaintiff); Gorday v. Faris, 523 So.2d 1215 (Fla.App.1988) (entrustment of car to intoxicated entrustee); King v. Petefish, 185 Ill.App.3d 630, 133 Ill.Dec. 636, 541 N.E.2d 847 (1989) (car entrusted to underage unlicensed entrustee whom entrustor knew to be intoxicated). Comment (b) to this rule states, however, that this section is a special application of the rule stated in section 308. See Restatement § 390 cmt. b (1965). It follows, therefore, that the rule articulates narrower, limited circumstances, the presence of which trigger operation of the liability for negligence articulated by section 308. The narrowly circumscribed set of facts to which section 390 is applicable is evidenced by examination of the comments and illustrations set forth by the drafters of the Restatement. Comment (b) states that “[t]his section deals with the supplying of a chattel to a person incompetent to use it safely_” (Emphasis added.) The limited set of circumstances to which section 390 applies, requires, therefore, incompetence which is evident or should be evident to the entrustor at the time of the entrustment. All except one of the illustrations to section 390 demonstrate application of the rule for injuries to third persons. These illustrations cover entrustment of a loaded gun to a “feeble-minded girl of ten,” of a car to a ten-year-old boy who has never before driven, of a car to a chauffeur who has a habit of speeding, of a car to a friend for a dance knowing the friend habitually becomes intoxicated at such dances, of a car to a person who announces that he will speed while driving it, and of a car to an epileptic adult. See Restatement § 390 illus. 1-6 (1965). There is obvious incompetence present in all of *366these examples. The incompetence is either visible to the entrustor, verbalized by the entrustee or known by the entrustor to be habitual behavior of the entrustee. More importantly, the only illustration under section 390 which imposes liability on an entrustor for injuries to the entrustee is illustration 7, which states:
A, who makes a business out of letting boats for hire, rents his boat to B and C, who are obviously so intoxicated as to make it likely that they will mismanage the boat so as to capsize it or to collide with other boats. B and C by their drunken mismanagement collide with the boat of D, upsetting both boats. B, C, and D are drowned. A is subject to liability to the estates of B, C, and D under the death statute, although the estates of B and C may also be liable for the death of D.
See id. illus. 7. Again, the incompetence of the entrustees was obviously visible to the entrustor at the time of the entrustment in this illustration.
Similarly, examination of the application of section 390 to claims by injured entrus-tees by courts in other jurisdictions supports a conclusion that obvious incompetence at the time of the entrustment is necessary before a duty will be found under section 390. In Mele v. Turner, 106 Wash.2d 73, 720 P.2d 787 (1986), plaintiff was an eighteen-year-old college student who sued his neighbors for entrusting him with their lawn mower. Plaintiff was injured when he put his hand into the cutter blade while the mower was running. The Washington court held that summary judgment for the defendants was proper because “[tjhere is no requirement of law or reason mandating that someone asking a neighbor to mow a lawn must question that neighbor’s competency when he is a college student 2 months shy of 19 who lacks obvious physical or mental impairment.” Id. at 789. Similarly, in Axelson v. Williamson, 324 N.W.2d 241, 243-44 (Minn.1982), the decedent' entrustee was killed in a one-car automobile accident. Because the entrustor was aware that the decedent was not old enough to hold a driver’s license, the court applied section 390, stating that negligent entrustment applies where a chattel is entrusted to an “incompetent or inexperienced person.” Id. at 243.
Even under fact situations involving third party injury, courts have imposed a high standard of incompetence before allowing a claim under section 390. See, e.g., Drummond v. Walker, 643 F.Supp. 190, 191 (D.D.C.1986), aff'd 861 F.2d 303 (D.C.Cir.1988) (summary judgment granted where injured third party failed to establish that entrustor had knowledge driver belonged to a class notoriously incompetent to operate a vehicle); Keller v. Kiedinger, 389 So.2d 129, 132-35 (Ala.1980) (section 390 applied where car was entrusted to known incompetent—a fourteen-year-old girl); Arkansas Bank & Trust Co. v. Erwin, 300 Ark. 599, 781 S.W.2d 21, 22-23 (1989) (negligent entrustment under section 390 properly alleged where entrustee was known mental incompetent); Krawitz v. Rusch, 209 Cal.App.3d 957, 257 Cal.Rptr. 610 (1989) (driving inexperience did not necessarily indicate incompetence); O’Toole v. Carlsbad Shell Service Station, 202 Cal.App.3d 151, 247 Cal.Rptr. 663 (1988) (court reversed grant of summary judgment on negligent entrustment claim where entrus-tee of automobile was obviously intoxicated minor); First Trust Co. of North Dakota v. Scheels Hardware & Sports Shop, Inc., 429 N.W.2d 5, 7-8 (N.D.1988) (hardware store sold pistol to fifteen-year-old boy who accidentally shot another boy); Brigance v. Velvet Dove Restaurant, 725 P.2d 300, 304 (Okla.1986) (recognizing duty not to sell liquor to noticeably intoxicated person).
The facts here are very different. The record establishes that, when Casebolt telephoned Cowan to request the loan of the car and when permission to borrow the car was granted, Casebolt had not been drinking. Likewise, when Cowan departed Case-bolt’s company on the day of the accident, Casebolt was not visibly intoxicated. Since liability to the entrustee under section 390 requires a more obvious incompetence, I do not find this section to be a basis for imposing a duty here but believe that the facts we are now considering present an instance *367where employing the guidance of section 390 would frustrate public policy.
B
Recognizing that the recognition of a duty is “an expression of the sum total of those considerations of policy which lead the law to say that a plaintiff is entitled to protection,” W. Keeton, D. Dobbs, R. Keeton & D. Owen, Prosser and Keeton on the Law of Torts § 53 at 358 (5th ed. 1984) (quoted with approval in University of Denver v. Whitlock, 744 P.2d 54, 57 (Colo.1987)), we examine the relevant public policy to determine whether a duty is appropriate here.
The legislature has never enacted legislation directly related to entrustment of a motor vehicle to a person who subsequently becomes intoxicated and causes injury to either himself or others. The General Assembly has, however, developed a legislative scheme designed to support a policy placing liability for injuries caused as a result of excessive drinking on the person who consumes excessive amounts of alcohol. We turn now to examine the development of this policy.
In Lyons v. Nasby, 770 P.2d 1250 (Colo.1989), in which I dissented, the court extended our previous decision in Largo Corp. v. Crespin, 727 P.2d 1098, 1102 (Colo.1986), which held that tavern owners owe a duty to third parties to act with reasonable care in serving alcoholic beverages to patrons. Lyons involved a wrongful death claim by the mother of a tavern patron against the tavern owner who served her son alcoholic beverages resulting in her son’s intoxication and consequent death after he drove his car off a mountain road. Lyons at 1252. We extended the liability of tavern owners, holding that tavern owners also owe a duty of care to intoxicated patrons not to serve those customers alcohol. Id. at 1256.
We prefaced the holding in Lyons by noting that legislative changes to statutes governing tavern owners’ liability occurred after the accrual of the claim in Lyons and were, therefore, not applicable to the claim therein. Id. at 1253. The subsequent amendments made dramshop liability in Colorado strictly a creature of statute, see Sigman v. Seafood Ltd. Partnership I, 817 P.2d 527, 529 (Colo.1991); Lyons at 1253, and eliminated civil liability on tavern owners for injuries resulting from serving alcohol to persons of majority age brought by that party or that party’s estate. See §§ 12-46-112.5(1) & (3) and 12-47-128.5(1) & (3), 5B C.R.S. (1991). These amendments, in fact, negated any further application of the public policy rationale articulated in Lyons by reversing the policy declaration supporting such liability. See Sigman at 529 (refusing to apply Lyons because of passage of statutory amendments referenced above). Sections 12-46-112.-5(3)(a) and 12-47-128.5(3)(a) state, in pertinent part:
No licensee is civilly liable to any injured individual or his estate for any injury to such individual or damage to any property suffered because of the intoxication of any person due to the sale or service of any [alcoholic beverage including fermented malt beverages] to such person ....
The legislature’s amendments of the dram-shop statutes were premised on a recognition that it is not the sale or service of alcohol, but the consumption of alcohol that proximately causes injuries that result from intoxication. Sigman v. Seafood Ltd. Partnership I, 817 P.2d 527, 531 (Colo.1991); Lyons, 770 P.2d 1250, 1260-64 (Rovira, J., dissenting). In Sigman, recognizing this legislative purpose, we unanimously affirmed dismissal of a wrongful death claim, realizing that, through the amendments to the dramshop laws, the legislature evidenced an intent to deny compensation where an individual’s injury resulted from his own overindulgence, thus enforcing individual responsibility for personal injuries that may result therefrom. Id. at 531. See also Charlton v. Kimata, 815 P.2d 946, 951 (Colo.1991) (citing the comments of Representative Hamlin, co-sponsor of the bill that included section 12-47-128.5, where the Senator stated that the rationale for placing the legal responsibility on the individual consuming the alcohol is *368that, where an individual makes a deliberate choice to drink alcohol, that individual should also be responsible if that choice results in negligence).
In rejecting the public policy rationale of Lyons, the legislature recognized that “in certain cases the consumption of alcoholic beverages rather than the sale, service, or provision thereof is the proximate cause of injuries or damages inflicted upon another by an intoxicated person_” § 12-47-128.5(1), 5B C.R.S. (1991). See also § 12-46-112.5(1), 5B C.R.S. (1991). Not only has the legislature shielded licensed vendors from previously imposed common law liability for injuries proximately caused by an individual’s intoxication, but social hosts have also been shielded. §§ 12-47-128.-5(4)(a) and 12-46-112.5(4)(a).3
It is undisputed here that Cowan did not provide the alcohol that proximately caused Casebolt’s death. It is anomalous to have a public policy which holds that a social host or seller or supplier of alcohol to an intoxicated.person has no liability for any resulting injuries, and yet permit liability against a lender of a car to a person who is not intoxicated when the car is loaned nor when last seen by the lender.
The legislative intent is frustrated, if not negated, by the majority’s attempt to avoid the clear public policy statement of the legislature that the consumption of alcoholic beverages is the proximate cause of injuries or damages, by embracing section 390 of the Restatement.
While other factors may be worthy of consideration in determining whether Co-wan owed Casebolt a duty, we have previously articulated several considerations for determining whether a duty exists in a particular case, including “the risk involved, the foreseeability and likelihood of injury as weighed against the social utility of the actor’s conduct, the magnitude of the burden of guarding against injury or harm, and the consequences of placing the burden upon the actor.” University of Denver, 744 P.2d at 57. I now consider them and conclude that imposition of a duty on Cowan would frustrate the balancing test as set forth in University of Denver.
The risk involved in either loaning a car to an individual who is sober at the time or in not requesting return of a loaned car from an individual who is not intoxicated is that the individual may become intoxicated and injure himself. The foreseeability or likelihood of such injury requires excessive speculation where, as here, the request is for transportation for the purpose of getting to the job site, regardless of whether the entrustor has any knowledge that the entrustee had, as is legally allowed in this state, imbibed in alcoholic beverages in the past. I recognize also that there is social utility in an employer loaning a car in order to enable an employee to reach a work site. It fosters productivity and enables an employee to earn his day’s wage, which, due to lack of transportation, he otherwise might not be able to do. Lastly, I believe it constitutes an excessive burden to place a duty upon entrustors who, in good faith, loan their car or an automobile under their control to an otherwise competent adult who is not visibly intoxicated at the time. Indeed, Susan Casebolt herself engaged in similar conduct on the two days prior to the accident when her husband used the car which is usually under her control to reach his job. If Susan Casebolt had an awareness of her husband’s past drinking equal to or greater than Cowan’s, then, under the majority’s rule, she may have been under a duty herself not to allow her husband to use the car on the two prior days. On a broader level, the imposition of the duty as recognized by the majority would potentially expose to liability any person lending a car to an acquaintance who the lender may have observed drinking alcoholic beverages in the past if the borrower subsequently *369consumes alcohol and injures himself while using the borrowed car.
I conclude, therefore, that a proper balancing of relevant policy considerations weighs against imposition of a duty owed to Casebolt by Cowan not to entrust the car. Likewise, applying the same principles, I do not believe that Cowan was under any duty to terminate the entrustment once made because, as stated, Casebolt was not intoxicated at the time Cowan last saw him. Therefore, section 390 would not be applicable and public policy considerations as set forth above also weigh against the imposition of this duty. Accordingly, I would affirm the judgment of the court of appeals upholding the summary judgment in favor of Cowan.
. Recognizing the ambiguity over the named defendants, see maj. op. at 353 n. 1, defendants will be referred to as "Cowan" throughout this dissent.
. See, e.g., Butcher v. Cordova, 728 P.2d 388, 390 (Colo.App.1986) (duty owed to third-party plaintiff by entrustor who provided son with a BB gun); Gariup Const. Co. v. Foster, 519 N.E.2d 1224, 1228-29 (Ind.1988) (An employee left a company party intoxicated and injured a third-*365party motorist. Court looked to section 308, inter alia, and found a duty arose on part of employer as owed to third-person motorists potentially exposed to significant danger.); McCarson v. Foreman, 102 N.M. 151, 692 P.2d 537, 542 (1984) (negligent entrustment arises when en-trustor provides vehicle to entrustee, creating unreasonable risk of harm to others); Poplaski v. Lamphere, 565 A.2d 1326, 1331 (Vt.1989) (quoting section 308 and ruling on whether duty to third person was created); Huggins v. Tri-County Bonding Co., 175 W.Va. 643, 337 S.E.2d 12, 17 (1985) (citing section 308 and stating that critical element of negligent entrustment was allowing individual to use car when such person known to cause unreasonable risk of harm to others). But see King v. Petefish, 185 Ill.App.3d 630, 133 Ill.Dec. 636, 541 N.E.2d 847, 850, 855 (Ill.App.1989) (court found decedent entrustee’s estate had a claim against entrustor, although the dissent argued that negligent entrustment doctrine dealt with duties owed third persons and not the entrustee).
. In Charlton v. Kimata, 815 P.2d 946 (Colo.1991), we again unanimously held that social hosts who furnish alcoholic beverages to their guests are not liable for any injuries suffered due to the tortious actions of their intoxicated guests unless the host willfully and knowingly serves alcohol to a minor. This case in fact extends the social host’s shield from liability under § 12-47-128.5 not only to injuries suffered by the intoxicated individual but also to third parties who are injured as a result of that intoxication.