dissenting.
I must respectfully dissent from the position taken by the majority regarding the legal duty of persons furnishing an alcoholic beverage to an intoxicated person. Here, the trial court refused to instruct the jury that there is no common law dram shop liability in Indiana and that liability could be imposed only if a statutory violation was found. The jury was left to decide the liability issue based on the general negligence theory of the reasonable man test. The Court of Appeals found this to be reversible error. Picadilly Inc. v. Colvin (1987), Ind.App., 503 N.E.2d 421. I think the Court of Appeals was correct in its opinion and I would deny transfer.
It is a basic premise of our law that general principles of common law negligence apply only in the absence of a special statutory provision. Where the legislature has established the standard of care required, the courts cannot but follow that law and cannot apply common law principles. The legislature determines what the law ought to be and has, in fact, spoken in the area that is the subject of the majority opinion. See Ind. Code § 7.1-5-10-15. The manufacture, use, distribution, and sale of alcoholic beverages are strictly controlled by the enactments of the legislature and enforced by various agencies of the executive branch. The statutes provide criminal penalty for such violations as driving while under the influence of alcoholic beverages, public intoxication, selling alcohol to minors, and selling or furnishing alcohol to those who are intoxicated. Historically, our statutes provided a sanction for one who sold alcohol to a known drunkard. The statute has since evolved into Ind. Code § 7.1-5-10-15, which prohibits the sale of alcoholic beverages to one who is known to be intoxicated. See Elder v. Fisher (1966), 247 Ind. 598, 217 N.E.2d 847. Another principle pertinent to the issue before us is that one can incur civil liability for violation of a criminal statute. This is true even though the statute does not provide for civil liability. This is a common law principle that is not limited to the subject of sale or distribution of alcoholic beverages but is applied in all areas of our tort law.
This Court faced the same question now before us in Whisman v. Fawcett (1984), Ind., 470 N.E.2d 73. In Whisman, the plaintiff's claim fell under specific statutory provisions which served as a premise *1223for a civil action for damages. This Court stated:
Indiana law clearly endorses the proposition that a violation of the liquor laws will result in a civil action. See, e.g., Elder, 217 N.E.2d at 851; (further citation omitted). General principles of common law negligence apply only in the absence of a special statutory provision. Elder, 217 N.E.2d at 853.
Whisman, 470 N.E.2d at 80. Whisman then held that Ind. Code §§ 7.1-5-10-14 and 15 established the duty to be applied to those selling liquor to an habitual drunkard or a person in a state of intoxication at the time of sale and that therefore liability was governed by specific statutory provisions and principles of common law need not be applied. Id.
Whisman cited Elder v. Fisher (1966), 247 Ind. 598, 217 N.E.2d 847, which involved the sale of alcohol to a seventeen-year-old minor. Furnishing or selling alcohol to a minor was a criminal violation of the liquor laws. Elder established there is a common law action against those unlawfully selling or furnishing intoxicating liquor in favor of third persons subsequently injured by the acts of the purchasers as a result of their intoxicated condition. Elder then raised the question of common law liability against the vendor of alcoholic bey-erages, stating this issue has been "a matter of considerable confusion over the past century." Elder, 247 Ind. at 604, 217 N.E. 2d at 851. In reviewing the history of the subject, the Court indicated there were cases that held there is not common law liability and others which in dicte would imply there is. The Court then searched holdings of other jurisdictions involving sale to minors or drunks in which it was held there could be liability for resulting injury if circumstances should have warned the seller his sale would create an unreasonable risk. The Court observed, "In all of the above cited cases, reference was made to a prohibitory statute forbidding the sale of intoxicating liquor to minors or intoxicated persons." Id. at 605, 217 N.E. 2d at 852. The Court concluded, "In the absence of special statutory provision, the general principles of common law negligence should be applied to cases involving intoxicating liquor. Accepting as true all the allegations of paragraph one of the plaintiff's complaint, there are sufficient facts stated to constitute a cause of action." Id. at 607, 217 N.E.2d at 858. Provisions of paragraph one alleged as negli-genee that the defendant sold or furnished alcoholic beverage to a seventeen-year-old minor in violation of criminal statute Ch. 226, § 31 of the Indiana General Assembly for the year 1985, as amended.
I interpret the above cited cases to hold there may be common law liability involving the sale or distribution of alcoholic beverages in an area where the legislature has not acted. However, no one has come up with a fact situation or set of cireumstanc-es where the rule might be applied. In every case, including the present one, the legislature has acted and provided for the standard to be applied to the duty of the vendor or provider in furnishing liquor to a minor or a person known to be intoxicated. I believe the law to be that stated in Whis-man, that the legislature did speak on the subject of furnishing alcohol to one known to be intoxicated and therefore there was no common law duty left to consider. That is the holding of the Court of Appeals and therefore I would deny transfer. Since the. jury was not properly instructed on the standard of care to apply to defendant, I do not reach the question of sufficiency of the evidence or the propriety of the punitive damages judgment.
DeBRULER, J., concurs.