dissenting. Although, I agree with the majority opinion’s resolution of the issue of nuisance, I respectfully dissent from its conclusion that the plaintiff cannot recover on a claim of negligence. I am unpersuaded that the result reached by the majority continues to find support in law or in reason.
*350I believe that the time has come for this court to recognize a common law cause of action, sounding in negligence, for the sale of intoxicating beverages to someone who, because of his intoxication, thereafter injures an innocent bystander on our public highways. Studies too numerous to replicate have demonstrated, time and time again, the strong connection between excessive consumption of alcohol and violent traffic accidents. See, e.g., Shore v. Stonington, 187 Conn. 147, 162, 444 A.2d 1379 (1982) (Peters, C. J., dissenting); Slicer v. Quigley, 180 Conn. 252, 264-67, 429 A.2d 855 (1980) (Bogdanski, J., dissenting).1 The hapless victim in this case was simply another statistic in a long line of similar victims, killed by a driver who, after the con- . sumption of a great deal of liquor at a bar, crossed the median line on the highway and drove his car into oncoming traffic. Enough is enough. This court should no longer be the roadblock that prevents a jury from considering whether, as a matter of fact, a commercial vendor of alcohol has taken suitable precautions, has observed reasonable care, to avoid injury to those who are foreseeably at risk and whose injuries are in fact proximately caused by the sale of alcohol.
The existing state of the law does not, in my view, prevent us from joining the vast majority of state and federal courts that, since 1971, have rejected or modified judicial rules that provide immunity from damages for those who furnish alcoholic beverages in circumstances that proximately cause injury to innocent third parties. See cases listed in Ling v. Jan’s Liquors, 237 Kan. 629, 648-51, 703 P.2d 731 (1985), and in Slicer *351v. Quigley, supra, 269-71. Neither our case law nor our statutory law, fairly read, compels the result that the majority opinion reaches today.
Our modern case law on this issue has its roots in Nolan v. Morelli, 154 Conn. 432, 226 A.2d 383 (1967). Although that case contains a scholarly exegesis on the relationship between the law of negligence and the Dram Shop Act, its reasoning repeatedly notes the incongruity of imposing liability on a seller of alcohol for injuries suffered by the intoxicated party himself. See, e.g., id., 441. Those were the circumstances in Nolan, but they are not the circumstances of this case, which involves injury to an entirely innocent third party. On its facts, Nolan is therefore distinguishable.
Nolan v. Morelli, supra, casts a broader shadow only insofar as it emphasizes a common law theory of causation that purports to cut off all liability for negligent conduct upon the occurrence of any independent intervening acts. According to Nolan, no vendor could ever be liable in tort for furnishing intoxicating liquor, because, as a matter of proximate cause, any injury resulting from intoxication depended upon the intervening act of the purchaser’s raising his glass to consume the alcohol. Id., 436-37.
Subsequent cases have, however, reconsidered and abandoned this narrow view of proximate cause. Since 1969, this court has adopted the formulation of proximate cause contained in 2 Restatement (Second), Torts § 442B (1965). See, e.g., Kiniry v. Danbury Hospital, 183 Conn. 448, 455, 439 A.2d 408 (1981); Merhi v. Becker, 164 Conn. 516, 522, 325 A.2d 270 (1973); Miranti v. Brookside Shopping Center, Inc., 159 Conn. 24, 28, 266 A.2d 370 (1969). Contrary to Nolan, these cases stand for the proposition that the basic test of causation is whether a defendant’s negligent conduct created the risk of a particular harm and was a sub*352stantial factor in causing that harm. If that causal connection can be factually shown, an injured plaintiff may recover, unless the harm is intentionally caused by a third person or is outside the scope of the risk created by the negligent conduct. In Merhi, for example, we upheld the liability of a union that sponsored a picnic where alcohol was served, when an inebriated union member drove his car into a group of picnickers and injured one of them. Merhi v. Becker, supra, 522. More recently, in Ely v. Murphy, 207 Conn. 88, 540 A.2d 54 (1988), we held that the negligent furnishing of alcohol to minors gave rise to a cause of action for the victim of the minor’s inebriated driving. We concluded that a minor is legally incapable of undertaking the measured responsibility for his ingestion of alcohol that would “constitute the intervening act necessary to break the chain of proximate causation . . . .” Id., 95.
As a common law matter, this case law development entirely undermines the proximate cause reasoning of Nolan v. Morelli, supra. It is illogical to continue the fiction that the behavior of anyone who is under the influence of alcohol is automatically, as a matter of law, an intentional intervening act that relieves the liability of a vendor of alcohol even though the vendor’s negligence is otherwise established. In the criminal law, we have long acknowledged that intoxication may impair a defendant’s capacity to commit a crime requiring proof of specific intent. General Statutes § 53a-7; State v. Vinal, 198 Conn. 644, 658-59, 504 A.2d 1364 (1986); State v. Stevenson, 198 Conn. 560, 568-69, 504 A.2d 1029 (1986). If intoxication gives rise to a jury question about rational intent for criminal law purposes, it should similarly permit a jury to determine whether the drinker’s behavior undermined his capacity to take responsibility for his conduct for tort purposes.
*353The only issue that remains, therefore, is whether we should stay our hand because the legislature, in enacting the Dram Shop Act, General Statutes § 30-102, has filled the field. Like our Workers’ Compensation Act, this act embodies a tradeoff. Compared to a traditional common law action for negligence, the recovery allowed by the act is available upon a lesser showing of causality; Nolan v. Morelli, supra, 438; but is commensurately less generous in its award of damages. Unlike our Workers’ Compensation Act, however, § 30-102 contains no language comparable to General Statutes § 31-284 (a), expressly precluding common law liability. Indeed, General Statutes § 30-86 imposes criminal liability on someone who “sells or delivers alcholic liquor ... to any intoxicated person.” I do not believe that, read in its entirety, this legislative record demonstrates a conscious decision by the legislature to displace existing common law precedents or to enjoin further common law developments.
It is worth noting, finally, that the majority opinion contains the seeds of an anomalous distinction. Two classes of providers of alcohol may possibly incur liability for serving alcohol to adults who, after conspicuous inebriation, cause serious injuries to innocent third parties. The providers are, on the one hand, those who are in the business of selling and serving alcohol, and, on the other hand, those who entertain social guests. From any policy point of view, the merchants who trade in alcohol would normally, like other merchants of goods, be expected to undertake the greater liability for the injuries that they directly or indirectly cause. See, e.g., General Statutes § 42a-2-314. Today’s majority opinion, by contrast, offers substantial immunity only to those who are in the business, and can therefore take shelter under the Dram Shop Act. Yet those in the business not only stand to profit from pressing alcohol upon a customer who has already overin*354dulged but are in the better position to acquire the training to recognize when their customer, and those with whom he may interact, are at risk. Absent a clearer signal from the legislature, I am persuaded that we should not assume so irrational a result.
Accordingly, I respectfully dissent.-
In 1989, the state department of transportation released “Connecticut Traffic Accident Facts” indicating that, in 22 percent of the fatal accidents on Connecticut highways, the driver was influenced by alcohol or drugs. The National Safety Council’s Accident Facts, 1989 Edition, reports that each year, nationwide at least 24,000 people are killed and about 534,000 people are injured by alcohol-related motor vehicle accidents.