Like the majority, I too am moved by the tragedy visited upon two minor sons of a young man who, cold sober, intentionally sets out to drink himself into oblivion.1
Unlike the majority, I cannot conclude that a bartender who negligently—even recklessly—sets up the drinks ordered shall be liable to a patron who intentionally injures himself. While reaching a sympathetic result, the majority’s paternalism is destined to create unfortunate law.2
Because the issues concerning us are essentially factual, cross-illumination of the record is revealing, particularly as it relates to Ewing’s misconduct.
Ewing went to the bar, challenged to consume the strongest drink in the house. According to plaintiffs’ witnesses, Ewing bet he could drink 10 shots of 151-proof rum.3 Arriving at the bar in the company of friends aware of his intentions, Ewing stated: “I’m 21 and I’m not even drunk.” A 151-proof drink was served Ewing with a statement from Powers, Ewing’s off-duty bartender friend, that it would make him drunk. Friend Whitlock also warned that it was a strong drink, and the bartender characterized it as a powerful drink. Yet Ewing drank two in immediate succession. At this point the cocktail waitress suggested he wait a few minutes and he would surely become drunk. But he drank a third after the bartender warned, “Chris, táke it easy on this stuff. Its going to catch up with you and knock you for a loop.”
*409After the third, Ewing moved to his girl friend’s table where she asked him to “stop drinking that fast.” He replied he would be all right, immediately returning to the bar.
After four more of the same in quick succession, Ewing returned to his girl friend’s table and, while he appeared to be experiencing intoxication and admitted to being a little drunk, he again ignored her, insisting he would be all right. Returning to the bar, he had three more of the same. All 10 drinks, according to his girl friend’s testimony, were consumed in “[h]alf an hour to 45 minutes.”
Assuming—as the majority hold—the bartender’s actions constitute willful misconduct, such is not actionable if Ewing either committed willful misconduct (see Cawog v. Rathbaum (1958) 165 Cal.App.2d 577, 591 [331 P.2d 1063]), or assumed the risk of acute alcoholic poisoning (see Ching Yee v. Dy Foon (1956) 143 Cal.App.2d 129, 135 [299 P.2d 668]).
In addressing the issue of willful misconduct, the majority gratuitously and inexplicably hold that while Ewing intended to get drunk, his conduct “hardly rises to the level of recklessness.” (Ante, p. 404; italics added.) But the record compels the opposite. He wagered with his friend to drink 10 shots of the strongest drink in the house—all in an hour. He won that—his last wager—after serving notice he was not “even drunk” at the beginning of his drinking orgy. He was initially warned by both friend and bartender of the beverage’s potency; warned after two drinks he would be drunk if he only waited; warned again by the bartender before the third drink to “take it easy on this stuff”; warned again by his girl friend to slow down after the third drink; and after the seventh drink, notwithstanding further warning, returned for three more. By what standard may the majority claim this conduct was not reckless as a matter of law?
On the one hand, the majority hold the bartender’s misconduct willful, constituting “ ‘the intentional doing of something either with knowledge, express or implied, that serious injury is probable as distinguished from a possible, result, or the intentional doing of an act with a wanton and reckless disregard of its consequences.’ ” (Ante, p. 402.) On the other, how can it be said as a matter of law that Ewing did not intentionally set out to consume 10 drinks with knowledge that serious injury was probable? Alternatively, did he not intentionally consume the alcohol with a *410wanton and reckless disregard for the consequences? The answers are obvious.
The majority take comfort along an easier path home. The bartender, they say, is guilty of willful misconduct because of his superior knowledge and from the rule, on reviewing a judgment after a motion for nonsuit has been granted, that all testimony must be construed favorably toward plaintiff and unfavorably toward defendant. But we do not judge who was more culpable in this drinking bout. Ours is not a process of weighing fault. Regardless of the majority’s fine distinctions, plaintiffs are not entitled to relief if Ewing’s misconduct was willful within the meaning of established standards.4
The judiciary has been justly criticized in recent years for its failure to place liability on one truly guilty of irresponsible conduct, whether negligent, reckless, willful, criminal or drunken. In this case, we not only relieve the true wrongdoer of liability but nobly reward him for succeeding in fingering someone who, while neither originating nor encouraging the course of misconduct, became the instrument in paving the path to destruction.
I am not alone in my concern for the societal effect of today’s decision. During the appellate process in the instant matter the judgment of nonsuit was affirmed by the Court of Appeal, First District, Division Two. A portion of Justice Rouse’s good opinion must be quoted: “ ‘The inestimable gift of reason and self-control cries out for preservation in every person, and the duty of its preservation devolves upon each member of the public. When the restraint of reason and the ability to care for one’s self are perverted by a conscious, self-indulgent act of voluntary intoxication which temporarily casts off those powers, no societal or personal wrong, nor violation of public or social policy is accomplished or violated if the actor is alone held answerable for his *411injury . . . . [f| Governmental paternalism protecting people from their own conscious folly fosters individual irresponsibility and is normally to be discouraged .... To go yet another step and allow monetary recovery to one who knowingly becomes intoxicated and thereby injures himself is in our view morally indefensible.’ ”
Justice Rouse quotes in turn from an opinion of the Court of Appeal, Third District. In Kindt v. Kauffman (1976) 57 Cal.App.3d 845 [129 Cal.Rptr. 603] (petn. for hg. den.), the court affirmed a judgment for defendant tavern keeper after the trial court had sustained, without leave to amend, the demurrer to a complaint alleging defendant had served liquor to an obviously intoxicated patron, who injured himself while driving his car. The Kindt court, noting that alcohol is responsible for “the devastating highway carnage resulting from automobile accidents” stated: “Everything reasonably conceivable should be done to discourage such activity; conversely, nothing should be done to encourage it, particularly by the judiciary. A rule of liability here could have no other possible effect upon patrons than to encourage them to excessive liquor consumption at taverns. Forthwith upon the announcement of a rule of law which permits a drunken patron to recover damages for his own injuries from the tavern keeper, patrons who have heretofore felt concern for their own safety should they become overly intoxicated, will relax their personal efforts, for three readily apparent reasons: First, because they will assume that the bartenders will exercise greater care in their behalf; second, because they very naturally will feel that if they are hurt they will be compensated for such hurt; and third, because we, the judiciary, will in effect have encouraged their overindulgence, by pampering their delinquency.” (Id., at p. 858.)
This court has previously expressed the same concerns. In Cole v. Rush (1955) 45 Cal.2d 345 [289 P.2d 450, 54 A.L.R.2d 1137], a wrongful death action, we affirmed judgment for defendants after the sustaining of a demurrer to a complaint alleging defendants had negligently furnished intoxicating liquor to a patron, causing his death. The court’s principal concern in that case was the propriety of announcing new rules governing conduct and liabilities normally a matter for the Legislature. In sharp contrast to the present court’s proclivity to make, through judicial pronouncement, policy decisions of a legislative nature, the Cole court properly concluded it was not empowered to do what this court cavalierly 'does today. (See also Kindt v. Kauffman, supra, 57 Cal.App.3d 845, 851; also see Borer v. American Airlines, Inc. (1977) 19 Cal.3d 441 [138 Cal.Rptr. 302, 563 P.2d 858].) Ironically, the author of today’s *412majority opinion wrote for the majority in Borer. “ ‘Every injury has ramifying consequences, like the ripplings of the waters, without end. The problem for the law is to limit the'legal consequences of wrongs to a controllable degree.’ [1] . . . ‘[N]ot every loss can be made compensable in money damages, and legal causation must terminate somewhere. In delineating the extent of a tortfeasor’s responsibility for damages under the general rule of tort liability (Civ. Code, § 1714), the courts must locate the line between liability and nonliability at some point, a decision which is essentially political.’ ” (Id., at pp. 446-447; italics added.)
In Borer we- refused to extend liability essentially because the Legislature had not authorized it. We held in effect that political decisions should be left to politicians. Now, a few months later, we elect to ignore the historical dictates of Borer, again wandering into the legislative arena to create a far-rippling policy we are neither authorized nor equipped to make.
This action in behalf of the minors is brought by their mother. The dissolution of her marriage to Christopher Ewing had become final shortly before his death, although she had separated from him approximately 15 months earlier. She testified he was a fond parent and enjoyed his children whenever she brought them to his parents’ home so he could exercise visitation rights. However, he never contributed to the children’s support after separating from his wife, the children being supported on welfare. With one possible exception he visited the children only when they were brought to him.
Mr. Ewing, of course, is not being compensated. But if his heirs are entitled to recover in a wrongful death action, then he too would be entitled to recover for personal injuries suffered had prompt medical intervention resulted in his survival. In net effect then, the majority would condone an award of lifetime support for an imbiber who succeeds only in permanently damaging his nervous system. The same drinker who falls off his bar stool injuring his drinking arm must also be compensated under the majority’s holding.
Such a bet was claimed to have been made with Jerry Powers who denied having made it. Ewing’s girl friend, Jean Enos, and sister-in-law, Deborah Ewing, both testified to the wager, the girl friend further testifying that pursuant to the wager, Ewing was required to, and did in fact, consume the drinks in an hour. Lloyd Whitlock, engaged to Ewing’s sister, also so testified.
Because Ewing’s misconduct was willful we need not consider whether plaintiffs are precluded recovery for the further reason that the deceased clearly assumed the risk of acute alcoholic poisoning. The majority conclude the risk was not assumed because “the specific risk,” i.e., the risk of poisoning to which Ewing was exposed, was not one he could appreciate. In reaching such conclusion, the majority again fail to consider relevant undisputed warnings. Everyone who advised him cautioned he would become drunk after two or.three drinks. Yet he recklessly consumed four to five times that amount of alcohol, stating he would be “all right." Even after admitting he was drunk he quickly consumed three more, enough alcohol to make him drunk if he had then been completely sober, according to all information he had received. How can it be objectively stated, even as a matter of law, that Christopher did not knowingly assume the risk of acute alcoholic poisoning?