(concurring) — The dissent accuses the majority of drastic departures from sound tort law in three areas. It indicates the majority ignores specific legislative pronouncements, distorts the principle of respondeat superior beyond recognition, and lastly, accuses the majority of imposing an onerous standard of care on any furnisher of alcohol. Examination of the current literature available in this field relating to the even broader area of social host liability throughout the United States indicates the dissent's accusations are not well founded. Comment, Social Hosts and Drunken Drivers: A Duty To Intervene?, 133 U. Pa. L. Rev. 867 (1985); Comment, Recognizing the Liability of Social Hosts Who Knowingly Allow Intoxicated Guests To Drive: Limits to Socially Acceptable Behavior, 60 Wash. L. Rev. 389 (1985).
The basic concerns of the dissent were addressed and persuasively answered 16 years ago by Justice Finley in a dissent signed by three other Justices in Halvorson v. Birchfield Boiler, Inc., 76 Wn.2d 759, 458 P.2d 897 (1969). The 16 years which have elapsed since that decision have made it abundantly clear to the American public that *471drunken driving is a tragic and costly problem. As the concluding paragraph in the Washington Law Review article cited above states, at page 406, "Society is becoming progressively less tolerant of drunken driving. We are realizing that social acceptance of driving while intoxicated has played a significant part in its proliferation." This court should not be a part of continuing that no longer acceptable toleration.
It requires no change in already accepted forms of legal analysis to find liability in this case for both Kaiser and Red Lion Inn. It is not even necessary to base a finding of liability on the doctrine of respondeat superior, but liability can be found within the letter and spirit of our past holdings on the liability of furnishers of alcohol and those enjoying a special relationship with the primary tortfeasor. The dissent's catalog of horribles are overstated and inaccurate and a careful reading of the literature and the cases on the subject should result in a finding of liability.
This concurrence seeks to supplement the majority's basis for finding that Kaiser and Red Lion owed a duty of care to the appellant. While excepting social hosts, this court has recognized that a host may owe a duty to the victims of an intoxicated guest who was (1) obviously intoxicated, (2) helpless, or (3) in some special relationship to the host when the host served the guest alcohol. Wilson v. Steinbach, 98 Wn.2d 434, 440, 656 P.2d 1030 (1982); Young v. Caravan Corp., 99 Wn.2d 655, 658, 663 P.2d 834, 672 P.2d 1267 (1983); Halligan v. Pupo, 37 Wn. App. 84, 89, 678 P.2d 1295 (1984) (suggesting that Wilson and Young have overruled Halvorson sub silentio). This opinion, therefore, seeks to elaborate the court's recent recognition of host liability to third parties.
I
Kaiser
Kaiser's duty to protect users of the public highway from the hazard created by its intoxicated guest arises out of (1) the ready foreseeability of the risk created by the party sit*472uation, and (2) the special relationship existing between the employer and employee. See Wilson, 98 Wn.2d at 440; Young, 99 Wn.2d at 658. The special relationship provides the employer-host with greater than usual control over the potentially dangerous situation which has been created and, thus, provides a basis for narrowing our holding as the majority wishes to do.
The dissent first errs in assuming that the world of hosts is neatly divided into those who would serve liquor for social purposes and those who would serve it for commercial purposes. Because Kaiser is obviously not a commercial purveyor of alcohol, the dissent concludes that the firm must be treated as a social host and thus not responsible for the actions of its employee-guest. See dissent of Durham, J., at 488. To maintain this rigid division, the dissent must skip lightly over the facts outlined by the majority, as well as Justice Finley's observation that "[w]e must ignore the realities of life in the twentieth century if we assume that business benefit is somehow coextensive only with sale for profit." Halvorson v. Birchfield Boiler, Inc., 76 Wn.2d 759, 770-71, 458 P.2d 897 (1969) (Finley, J., dissenting).
As the majority notes, Kaiser declared the costs of this event to be a business expense and deducted them from its federal income tax. Majority, at 459. Were this expense not for a proper business purpose (e.g., maintaining employee morale), not only would Kaiser be liable to the IRS for improperly seeking a deduction, but Kaiser's directors could be subject to shareholder action for failure to act in the corporation's best interests. See RCW 23A.08.343; 23A.08.450.
Where a special relationship exists, a party may be obliged to control another's actions for the protection of third parties. W. Keeton, D. Dobbs, R. Keeton & D. Owen, Prosser and Keeton on Torts § 56, at 383 (5th ed. 1984); Comment, Social Hosts and Drunken Drivers: A Duty To Intervene?, 133 U. Pa. L. Rev. 867, 881 (1985). This rule is given direct application in the Restatement's recognition of a master's duty to control his servant's conduct:
*473A master is under a duty to exercise reasonable care so to control his servant while acting outside the scope of his employment as to prevent him from intentionally harming others or from so conducting himself as to create an unreasonable risk of bodily harm to them, if
(a) the servant
(i) is upon the premises in possession of the master or upon which the servant is privileged to enter only as his servant, or
(ii) is using a chattel of the master, and (b) the master
(i) knows or has reason to know that he has the ability to control his servant, and
(ii) knows or should know of the necessity and opportunity for exercising such control.
Restatement (Second) of Torts § 317 (1966).
Three observations are in order. (1) The Restatement rule applies only when the servant acts outside the scope of his employment. A servant acting within the scope of his employment would be liable under agency principles (comment a). (2) Not only does this rule exclude the purely social host from liability, but it also excludes the business host from liability for the actions of his nonservant guests. For example, liability for the actions of a Kaiser vendor attending the party would not attach to Kaiser under this formulation of the rule. It is the special superior-subordinate nature of the master-servant relationship that gives the master-host a more socially acceptable ground for controlling his employee-guest than is possible in most other host-guest situations.1
Finally, (3) the rule, in relevant part, requires that liability should attach only if the servant is on the master's premises solely by virtue of his status as a servant. Restatement (Second) of Torts § 317 (a) (i) (1966). This last requirement could be argued to preclude Kaiser liability in the present case, but I believe it does not. The basis of *474Kaiser's duty lies not only in the control it could exercise over its employees' drinking behavior and subsequent driving opportunities, but in the foreseeable risk that at least some of those employees would become intoxicated while in Kaiser's control and that they would leave Kaiser's control only to immediately and unreasonably risk the lives, limbs, and property of all whom they met on the road. In this sense, the master has as much control over his intoxicated servant as he has over a servant who is using his master's chattel off the premises. See Restatement (Second) of Torts § 317(a)(ii) (1966).
It was out of a "special relation" between a psychiatrist and his dangerous patient that this court recently found the psychiatrist's duty to take "reasonable precautions to protect those who might foreseeably be endangered by [the patient's] drug-related mental problems." Petersen v. State, 100 Wn.2d 421, 428-29, 671 P.2d 230 (1983). Comment, Psychiatrists' Duty To Protect Foreseeably Endangered Third Parties—Petersen v. State, 100 Wn.2d 421, 671 P.2d 230 (1983), 18 Suffolk U. L. Rev. 879 (1984). In Petersen, the psychiatrist knew or should have known his patient was dangerous. He could not, however, be sure that his patient would cease to take his medication and return to his pattern of drug abuse. That Kaiser might well not have known which of its employees would abuse alcohol the night of the party does not necessarily reduce the risk the company could foresee. Kaiser, unlike the psychiatrist in Petersen, could be absolutely sure that its employees would have access to alcohol because Kaiser was providing it. Moreover, Kaiser's control over its employee was much more direct and immediate than was the State's control over its patient.
Kaiser could not argue that it had no reason to believe that any of its employees were of the type to abuse alcohol. Approximately 10 percent of adult Americans are either alcoholics or experience some problems with their drink*475ing.2 United States Department of Health and Human Services, Alcohol and Health (Jan. 1981). Moreover, a majority of executives sampled in one survey reported that their organizations have programs to identify and treat the problem drinker. Even if Kaiser does not have such programs, it cannot be blind to the costs to business of alcohol abuse and alcoholism. In 1975, the amount was estimated to be almost $20 billion for lost production alone. Alcohol and Health.
If the plethora of studies on the subject of the intoxicated driver, see, e.g., Driving While Impaired: Demographic Estimates and Projections, prepared by the Center for Studies in Demography and Ecology, University of Washington (1984) (includes selected bibliography), has not made virtually everyone in this society aware of the growing problem of the drunk driver, the frequent media blitzes should have succeeded. In light of the facts of this case, it should also be noted that many of these advertising campaigns have stressed the responsibility of the host to either control his guest's drinking or prevent the guest from driving.
While Kaiser might not have been able to identify all the potentially dangerous employee-drivers, it could foresee that by so generously providing its guests with all they wished to drink, it would actively create a situation of risk giving rise to a duty of care if it continued to serve alcohol to an obviously intoxicated guest. See Comment, Recognizing the Liability of Social Hosts Who Knowingly Allow Intoxicated Guests To Drive: Limits to Socially Acceptable Behavior, 60 Wash. L. Rev. 389, 400 (1985).
Not only was Kaiser in the position to foresee the poten*476tial hazards of its own conviviality, the means by which the firm could exercise its control over its less responsible employees were ready at hand. It could have instructed Red Lion Inn to monitor more closely the guests' consumption, or hired others to do that monitoring. If Kaiser felt that it did not have the expertise to detect intoxication in its employees it could have hired others with that expertise (e.g., off-duty police officers) and written that expense off as a business deduction as well as they did the cost of the alcohol and other related expenses. It could also have rented a machine to test blood alcohol as employees left the party. Finally, it could have provided intoxicated guests with alternate transportation so they would not have to drive home.
The simplicity and relative inexpensiveness of some of these steps suggest a duty in much the same manner that the existence of the simple glaucoma test led us to find the failure to routinely use it to be negligence, even though that was not then the standard of the profession. Helling v. Carey, 83 Wn.2d 514, 518-19, 519 P.2d 981, 67 A.L.R.3d 175 (1974). Where the burden of prevention is small compared to the probability and magnitude of the foreseeable harm, the failure to provide the preventative measures cannot be excused. See The T.J. Hooper, 60 F.2d 737, 740 (2d Cir. 1982) (Hand, J.).
II
Red Lion
The dissent envisions a parade of horribles resulting from recognizing Red Lion's possible liability. This vision, however, both distorts the majority's holding and overstates the burden to the liquor-serving industry. The thrust of the dissent's objections, however, is that the court's holding renders "meaningless" our established standard of "obvious intoxication." Dissent of Durham, J., at 495. The implication seems to be that the observations of a neutral and knowledgeable observer, as well as the admission of the defendant driver, should be excluded from jury considera*477tion, while the unavoidably self-serving statements of the defendant server, or its agent, are allowed to determine whether plaintiff is to be nonsuited. See, e.g., Comment, Kelly v. Gwinnell: The Social Host and His Visibly Intoxicated Guest: Joint Liability for Injuries to Third Parties and Proper Evidentiary Tests, 60 Notre Dame L. Rev. 191, 213 n.136 (1984). What employee is going to be ignorant of the possible consequences to himself, as well as to his employer, should he admit that the patron was obviously intoxicated when he served him?3
By admitting the testimony of the police officer about the defendant's obvious physical signs of intoxication and the testimony of the defendant driver, the court concededly creates a constructive knowledge standard to supplement the basic "obviously intoxicated" standard. Without this supplement, however, the obviously intoxicated standard would become a sham. The responsibility of commercial purveyors of liquors when they serve obviously intoxicated persons would be limited to the peculiar facts of Young v. Caravan Corp., 99 Wn.2d 655, 663 P.2d 834, 672 P.2d 1267 (1983). Defendants, such as Red Lion, would have every incentive to discourage their servers from learning to recognize the signs of alcohol impairment, as well as ignoring the obvious hazard created by anyone who consumes 15 to 20 drinks in 3 to 4 hours. The dissent unfairly declares the majority to state that commercial purveyors of alcohol must always be liable when their intoxicated patrons are subsequently recognized as such by a police officer. Instead, the majority only declares that such providers will not always be immune to such liability.
The dissent also raises the spectre of an industry crippled by the majority's "Draconian standard of care". Dissent of Durham, J., at 495. While overstated, the dissent's *478concern should be addressed. Red Lion's duty should be limited to taking "reasonable steps" to avoid serving the obviously intoxicated guest or to prevent the already intoxicated guest from driving. The nature of those steps would involve a jury determination based on the purveyor's financial and human resources. See, e.g., 60 Wash. L. Rev. at 402-04. "Commercial vendors or business organizations that serve alcohol at large social functions can reasonably hire 'bouncers,' provide alternative means of transportation [e.g., aeroporter vans] for intoxicated persons, or provide facilities for intoxicated individuals to 'sleep it off.'" 60 Wash. L. Rev. at 403. It should be noted that these costs could be passed on to the sponsor of the function who may, in turn, deduct them in the same manner, and for the same reasons, as it could deduct the expense of the liquor itself.
The dissent fears that admitting the officer's testimony will require of servers the same practiced eye for intoxicated behavior that is found in a police officer. While hiring off-duty policemen for such a purpose is hardly a surprising notion, it is possible to train the servers themselves to more carefully and expertly watch for signs of intoxication; the Washington State Patrol is an obvious resource in this endeavor. At this stage of the proceedings, however, one can only wonder whether the servers' attention, directed to empty glasses, was similarly directed to spotting the abusers of such generous libations.
Nor does admitting the officer's testimony require a finding of per se liability. Defense counsel is free to impeach the officer's testimony by pointing out that each individual absorbs and eliminates alcohol at various rates. See Comment, Kelly v. Gwinnell: The Social Host and His Visibly Intoxicated Guest: Joint Liability for Injuries to Third Parties and Proper Evidentiary Tests, 60 Notre Dame L. Rev. 191, 208-10 (1984). As the time increases between when the host last served the guest and the officer confronted the guest and as the amount consumed is found to be less, the officer's testimony should be afforded less weight by the jury. It is justice of the blindest sort, how*479ever, to nonsuit the plaintiff because a trained, disinterested party's observations, made just 10 minutes after the intoxicated guest left the party, are held to be inadmissible. Juries are more than capable of assessing the weight of these observations.
The dissent also mischaracterizes the majority as requiring "furnishers affirmatively to refrain from serving patrons more than an undesignated number of drinks." Dissent of Durham, J., at 495. The majority has adequately addressed the qualifications to be considered in this material issue of fact. See majority, at 465. It should be noted, however, that a guest's extraordinarily high consumption of alcoholic drinks should, at least, alert servers to the need to more closely scrutinize the guests' behavior for signs of intoxication. While a variety of factors affect an individual's response to alcohol, the Washington Traffic Safety Commission has provided some reasonable rules of thumb for this purpose. See Wash. Traffic Safety Comm'n, The New Law is Tough (June 1983) (brochure).
Commercial purveyors of alcohol reap considerable profits and should not be allowed to blink at the risk that arises from their profit-making activities. This is especially true where, as here, those who consume the alcohol do not have to pay for it. Such a situation is an open invitation to alcohol abuse, with the necessary consequence that the abuser will attempt to drive home. By recognizing that the provider of alcohol shares in the responsibility for the intoxicated guests' subsequent torts, this court does not provide a mechanism for absolving the guest-driver in favor of his deep pocket host. Moreover, the host or purveyor can seek contribution based on the comparative fault of the other tortfeasors and their insurers. RCW 4.22.040. By recognizing the host and the purveyor's shared liability, the court creates a significant and effective incentive to control the harm caused by drunk driving. Moreover, those with the most to gain from the serving of alcohol have a greater incentive to insure against the hazards the activity creates.
*480III
The Court's Role in Determining the Law of Torts
The court is extending, but not creating, a cause of action. In Young v. Caravan Corp., 99 Wn.2d 655, 663 P.2d 834, 672 P.2d 1267 (1983), we found a tavern keeper who violated the statute prohibiting the sale of alcohol to minors to be per se negligent. 99 Wn.2d at 660. The court recognized that the immaturity of minors precluded their being able to drink responsibly. Implicit in this use of a legislative standard of conduct is the general recognition that (1) the sale of alcohol to minors creates an obvious and foreseeable risk both to the minors and to the potential victims of their incapacitated actions, and (2) that the one who furnishes the alcohol is in the position to control that risk by denying access to the dangerous chemical.
The same foreseeability of the risk and the capacity to control that risk provide the implicit grounds for the court's finding of a duty in the present case. Moreover, the basis for the defendant's control of the risk rests in its special relation to its employee-tortfeasor. Hence, this court is giving specific content to the Halvorson exception that would allow the attachment of liability on the basis of a "special relationship", Young v. Caravan Corp., 99 Wn.2d at 658 (quoting Wilson v. Steinbach, 98 Wn.2d 434, 438, 656 P.2d 1030 (1982)); see also Petersen v. State, 100 Wn.2d 421, 422, 671 P.2d 230 (1983) combined with a finding of "obvious drunkenness."4
Even if this recognition of liability were not the logical extension of principles we have announced in earlier deci*481sions, we would be abdicating our duty to "reform the common law to meet the evolving standards of justice." Ueland v. Pengo Hydra-Pull Corp., 103 Wn.2d 131, 136, 691 P.2d 190 (1984) (finding children have separate cause of action for loss of parental consortium due to another's negligent acts). Tort law should continually discourage unreasonable activities, W. Keeton, D. Dobbs, R. Keeton & D. Owen, Prosser and Keeton on Torts § 4, at 25-26 (5th ed. 1984), and seek to apportion the risk of loss due to hazardous activities among those responsible for the activities. Prosser and Keeton § 1, at 6.
We are not arrogating to the court what is appropriately a legislative matter, since the Legislature is not given to consistent reevaluations of tort law. Peck, The Role of the Courts and Legislatures in the Reform of Tort Law, 48 Minn. L. Rev. 265, 290-91 (1963). Furthermore, the Halvorson rule of nonliability for liquor purveyors, as well as its subsequent exceptions, are court created. 60 Wash. L. Rev. at 397 n.68 (citing Halvorson). By responding now, however, this court can complement the efforts of the legislative branch by apprising it of a matter which it appears to have ignored. As one observer has noted, the 1983 amendments to Washington's DWI laws do not preempt the range of sanctions available against the drunk driver; the Legislature was only concerned that its sanctions not be supplanted. 60 Wash. L. Rev. at 398 n.71. Where there "is no statutory sanction for the absolute rule of immunity" and the reasons for granting immunity are wanting, n[t]he true role of the legislature . . . is to restrict liability if it chooses to do so . . .'' Borst v. Borst, 41 Wn.2d 642, 657, 251 P.2d 149 (1952) (striking down parental immunity where the parent's tort arises out of a nonparental transaction with the child).
While I can concede to the dissent that the majority's use of respondeat superior is an extension of the doctrine, I find other compelling grounds for making the employer liable to the third party victims of his employee. As I have discussed above, I disagree sharply, however, with the *482dissent's other conclusions. (1) Our present holding is firmly rooted in our past holdings on the liability of (a) furnishers of alcohol and (b) those enjoying a special relationship with the primary tortfeasor. See Wilson, Young, and Petersen. (2) That the Legislature has declined to declare business hosts and purveyors of alcohol per se liable to third parties for the intoxicated guests' negligent driving hardly forecloses the possibility of a common negligence action. (3) The list of relatively simple and inexpensive remedies, while not exhaustive, can hardly pose the death knell for the liquor-serving industry, especially if the server's financial and human resources determine the range of steps that are reasonably expected. (4) The court can specifically exclude the social host from liability and can hardly be said to require of any host "an exact tabulation of drinks consumed or face liability". Dissent of Durham, J., at 496. (5) Finally, the spreading of the risk to others who stand to gain financially, directly or indirectly, by the guests' excessive consumption can hardly be called an imposition of responsibility on those who "can be as innocent as the victim." Dissent of Durham, J., at 496.
Pearson and Goodloe, JJ., concur with Utter, J.It is worth considering, however, that recognizing a more expanded duty, at least among business hosts, might well provide the needed social justification for assuming responsibility for the actions of those guests which one has enabled, and maybe encouraged, to intoxicate themselves.
This does not include those individuals who have occasionally become intoxicated, but do not suffer chronic drinking problems or genuine alcoholism. That this number is exceptionally large is suggested, not only by intuition, but by the fact that only 10 percent of drunk drivers in fatal accidents and 20 percent of drivers in less serious accidents have a previous DWI arrest. D. Reed, Dealing With the Drinking Driving Problem, 7 Alcohol Health & Research World 4, 7 (1982).
It is noteworthy that the defendant's summary judgment motion in Young was denied because of admissions made by the rare employee whose interests were not identified exclusively with the plaintiff. Seldom, however, will the plaintiff be able to prevail upon a defendant server's agent who is also the victim's girl friend. See Young, at 658.
From the Young and Wilson opinions, one would expect that the finding of a special relationship alone would be sufficient grounds for attaching liability; that, however, would amount to a finding of strict liability which I would not advocate. Along this same vein, the dissent's concern that RCW 66.44.270 does not apply to gratuitous furnishers of alcohol to apparently intoxicated adults is misplaced. Obviously, the statute cannot provide a basis for attaching per se liability in such situations. The majority, however, does not find per se liability, but only the basis for an ordinary negligence action that is unrelated to the statute.