dissenting. I believe that the appellee insurance company is entitled to contribution from appellant under these facts. Therefore, I dissent.
In my view, the law should impose liability on any person who, in a social or commercial setting, serves alcohol to a person he knows is intoxicated, where the intoxicated person thereafter injures himself or a third party through negligent operation of a motor vehicle. Obviously, this liability should be shared with the intoxicated person himself, who voluntarily consumed the alcohol, thereby putting himself and others at risk. But I believe that the law should not protect someone such as appellant from responsibility for first facilitating and encouraging a dangerous state of intoxication in another, and then abandoning the obviously intoxicated person to his own devices. For this reason, I would overrule this court’s decision in Settlemyer v. Wilmington Veterans Post No. 49 (1984), 11 Ohio St. 3d 123, 11 OBR 421, 464 N.E. 2d 521, upon which the majority relies.
Contrary to the conclusion of the Settlemyer court, imposition of liability on a social host is completely justifiable under conventional negligence principles. “Negligence” has been defined as “the failure to do what a person of ordinary prudence would do under the circumstances of a particular case. * * * It includes not only the omission to do something which a reasonably prudent man guided by those impulses which regulate the conduct of human affairs would ordinarily do, but includes also the doing of things which such a man under similar circumstances would not do. It is very clear, therefore, that the legal duty which the defendant owes to the plaintiff in any given case depends upon the surrounding facts and circumstances, and any legal controversy must leave to the jury a determination according to their own ideas of what a person of *132ordinary prudence would have done under the circumstances.” Payne v. Vance (1921), 103 Ohio St. 59, 67, 133 N.E. 85, 87.
Before failure to observe this standard may be made the basis for recovery, it must be shown that the plaintiff was within the class of persons to whom defendant owed a duty of care. Gedeon v. East Ohio Gas Co. (1934), 128 Ohio St. 335, 338, 190 N.E. 924, 926. “Only when the injured person comes within the circle of those to whom injury may reasonably be anticipated does the defendant owe him a duty of care.” Id. See, also, Menifee v. Ohio Welding Products, Inc. (1984), 15 Ohio St. 3d 75, 77, 15 OBR 179, 180, 472 N.E. 2d 707, 710.
All the elements of actionable negligence are present in this case. Appellant provided the decedent, Wagner, with ten shots of whiskey and promised to pay him $100 if he drank them in rapid succession. Having encouraged Wagner to imbibe this excessive amount of alcohol by the promise of financial reward, appellant then apparently abandoned him or at least permitted him to leave the premises and drive away. As a direct result of his state of intoxication, Wagner drove his vehicle into a train and was killed.
It should be readily apparent that any reasonable person under these circumstances would realize that ten shots of whiskey, consumed over a very short period of time, would cause intoxication, probably extreme. It is also common knowledge that intoxicated persons operating motor vehicles pose a grave risk of serious harm to themselves and to others. Thus, decedent Wagner definitely may be classified as “within the circle of those to whom injury may reasonably be anticipated. * * *” Gedeon, supra, at 338, 190 N.E. at 926. Notwithstanding his awareness of Wagner’s dangerous condition, it appears appellant took no steps to prevent Wagner from entering an automobile and driving away. Under the traditional concept of negligence outlined above, appellant can, and should, be held legally accountable for the resulting death.
This analysis is warranted not only from a strictly legal standpoint, but also by virtue of compelling public policy considerations. In recent years, society has registered increasing concern, even outrage, over the deplorable number of deaths and injuries caused by drunk drivers. It can hardly be disputed that many of these tragedies are the direct result of excessive consumption of alcohol in a social setting. The imposition of liability on irresponsible social providers of alcohol would, I believe, reduce the number of highway injuries and fatalities by encouraging providers to refuse to serve obviously intoxicated guests and to take reasonable steps to ensure the safe conduct of such persons. The inconvenience which the specter of liability will inflict on social hosts is minor when measured against the death and destruction caused by drunken drivers. Kelly v. Gwinnett (1984), 96 N.J. 538, 476 A. 2d 1219. The policy considerations advanced by imposing liability far outweigh these minor social inconveniences. Id. at 548, 476 A. 2d at 1229. We should show more concern for the misery caused by drunk driving and less for the comforts of those who facilitate the crime.
Though a theory of liability for social hosts has been and continues to be resisted by many jurisdictions, several courts in recent years have moved away from a blanket rule of non-liability, preferring an approach more protective of the victims of drunk driving. See, e.g., Kelly, supra; McGuiggan v. New England Tel. & Tel. Co. (1986), 398 Mass. 152, 496 N.E. 2d *133141; Sutter v. Hutchings (1985), 254 Ga. 194, 327 S.E. 2d 716. Other courts have shown an inclination to hold that social hosts may be liable for automobile accidents caused by drunken guests. See, e.g., Langle v. Kurkul (1986), 146 Vt. 513, 510 A. 2d 1301; Halligan v. Pupo (1984), 37 Wash. App. 84, 678 P. 2d 1295.1 believe that these decisions signal the beginning of a trend toward judicial recognition that society’s interest in the sanctity of human life and limb overrides any asserted interest in unhindered social drinking.
I am not persuaded that courts should defer to the legislature in this area, as the majority insists. Common-law principles of negligence were judicially created, and it is clearly within the province of this court to determine the scope of duty in negligence cases. See Menifee, supra; Note, Common Law Negligence Theory of Social Host Liability for Serving Alcohol to Obviously Intoxicated Guests (1985), 26 B.C.L.Rev. 1249, 1275.
Under the foregoing analysis, appellee is clearly entitled to contribution pursuant to R.C. 2307.31(C) and 2307.32(C).5 As a liability insurer of Rainbow Bowling Lanes, appellee became subrogated to Rainbow Lanes’ right of contribution when it settled with Wagner’s personal representative, thereby discharging Rainbow Lanes’ liability for Wagner’s death. As a joint contributor to that death, appellant is liable in contribution to appellee, since appellee’s settlement agreement specifically extinguished appellant’s liability for Wagner’s death. See R.C. 2307.31(B).
Accordingly, I would affirm the judgment of the court of appeals, remanding this cause to the trial court for further proceedings.
H. Brown, J., concurs in the foregoing dissenting opinion.R.C. 2307.31(C) provides:
“A liability insurer, which by payment has discharged in full or in part the liability of a tortfeasor and has thereby discharged in full its obligation as insurer is subrogated to the tortfeasor’s right of contribution to the extent of the amount it has paid in excess of the tortfeasor’s proportionate share of the common liability. This provision does not limit or impair any right of subrogation arising from any other relationship.”
R.C. 2307.32(C) states:
“If there is no judgment for the injury or the wrongful death against the tortfeasor seeking contribution, his right of contribution is barred unless he has either discharged by payment the common liability within the statute of limitations period applicable to the claimant’s right of action against him and has commenced his action for contribution within one year after payment, or agreed while action is pending against him to discharge the common liability and has within one year after the agreement paid the liability and commenced his action for contribution.”