dissenting.
I must dissent to the majority opinion wherein it finds grounds to place responsibility on Gariup Construction Co., Inc., for the actions of Paul Orner. In Picadilly, the majority applied common law responsibility to a commercial dispenser of alcoholic beverages in spite of the fact the legislature had acted on the subject and established liability contrary to the position taken by the majority in Picadilly and in this case. In this case the majority now "cuts and fits" the statutory and the common law to arrive at a result that appears to satisfy their own "legislative theory" of what the law ought to be regarding the consumption and distribution of alcoholic beverages in our society.
The majority first holds it is unwilling to depart from the general rule followed in most jurisdictions and refuses to extend common law liquor liability to the purely social host except in cases involving a breach of statutory duty and then imposes this very liability on Gariup. Apparently, the majority differentiates Gariup from any other social host because of the fact he employed Orner and most of the other guests, plus the fact that Orner and some others played a game involving heavy drinking. There is no evidence that the host took part in or even knew of this foolish and deadly game. A similar philosophy was followed in Picadilly because the manner in which Picadilly served customers appeared to have much less supervision than most commercial dispensers. These distinctions cannot be found in the common law or the statutes.
Certainly no one would question the accuracy of the statistics the majority cites regarding the death and mayhem to unsuspecting citizens on our highways which irresponsible drunken drivers cause. In fact, more could be added to these statistics. Countless examples of broken homes, financial stress, abused families, and crime can be traced to the use and abuse of alcohol. We must accept the fact, however, that the use of alcohol is generally accepted by a very high percentage of persons in our society. The use and distribution of alcoholic beverages is very stringently controlled by the legislative and executive branches of our government.
The severe damage to Foster here was caused by Paul Orner; in Picadilly, Col-vin was injured on the interstate highway as a result of Deborah Brewer's drunken condition. The direct representation of the people in passing the laws by which we will be governed in this State, and the public policy of this State, is the responsibility of our legislature. That body fully controls the laws regarding the dispensing, use, and abuse of alcoholic beverages in Indiana. They have been very active in passing laws to seek out and punish those who abuse alcohol and cause severe injury and damage to others. The legislature has made it a criminal act for a commercial or social provider to furnish alcoholic beverages to a minor or a person who is visibly intoxicated. As a prerequisite to civil actions for furnishing liquor to intoxicated persons, Ind.Code § 7.1-5-10-15.5 requires there to be actual knowledge and visible intoxication. This statute became effective March 31, 1986. Ind.Code § 7.1-5-7-8, enacted in 1982, limited the civil liability of educational institutions for furnishing alcoholic beverages to minors. There are many other statutes and executive regulations controlling distribution. Ind.Code § 7.1-5-10-15(b), enacted in 1985, recognized reasonable belief of customers' intox*1233ication as a defense to civil action for refusal to serve alcoholic beverages. To say the legislature has not acted in this area and established the public policy of this State is to ignore the facts clearly before us as an appellate court. Alcohol can be obtained in many places in this society and the abuser will find it and use it in any or all of them. If the law needs to be changed to more stringently sanction those who furnish al-eohol to abusers, it should be done by the legislature and not by this court. I dissent and would deny transfer.
DeBRULER, J., concurs.