(dissenting) — The majority opinion ignores a specific legislative pronouncement, distorts the principle of respondeat superior beyond recognition and imposes an onerous standard of care on any furnisher of alcohol. I cannot agree with these drastic departures from the sound rudiments of tort law, and, therefore, I dissent. The concurring opinion, in its attempt to bolster the majority, creates additional problems and I will address those separately.
I
I turn first to the majority opinion. Because the rationale for affirming the trial court's order granting summary judgment differs for Kaiser and Red Lion, each of the respondents will be considered in turn.
Kaiser Aluminum
The majority finds that Kaiser is potentially liable under two distinct theories. First, the majority holds that Kaiser can be found liable under a negligence theory because it allowed a guest who was arguably "obviously intoxicated" to be served alcohol at its banquet. Second, according to the majority Kaiser can be found liable, regardless of fault, under a respondeat superior theory for the subsequent negligence of its employee who consumed alcohol to excess at its banquet. Properly analyzed, neither of these theories is applicable.
Under a negligence theory, the following elements must be established:
1. A duty, or obligation, recognized by the law, requiring the person to conform to a certain standard of conduct
2. A failure on the person's part to conform to the standard required: a breach of the duty . . .
*4873. A reasonably close causal connection between the conduct and the resulting injury . . .
4. Actual loss or damage resulting to the interests of another . . .
W. Keeton, D. Dobbs, R. Keeton & D. Owen, Prosser and Keeton on Torts § 30 (5th ed. 1984).
At common law, no cause of action in negligence existed against "one furnishing liquor in favor of those injured by the intoxication of the person so furnished." Halvorson v. Birchfield Boiler, Inc., 76 Wn.2d 759, 762, 458 P.2d 897 (1969) (quoting 30 Am. Jur. Intoxicating Liquors § 520 (1958)). Courts held that, as a matter of law, the furnishing of the liquor was not sufficiently causally connected to an injury inflicted by the consumer of the alcohol. Halvorson, at 762; State ex rel. Joyce v. Hatfield, 197 Md. 249, 254, 78 A.2d 754 (1951). As the majority correctly states, Washington courts, in accordance with the weight of authority, have rejected the common law rule and held that the furnishing of liquor can be the proximate cause of a subsequent injury. Halligan v. Pupo, 37 Wn. App. 84, 678 P.2d 1295 (1984); Young v. Caravan Corp., 99 Wn.2d 655, 663 P.2d 834, 672 P.2d 1267 (1983). Generally the question of causation in this context is now considered to be one of fact. Jardine v. Upper Darby Lodge 1973, 413 Pa. 626, 629-31, 198 A.2d 550 (1964); Rappaport v. Nichols, 31 N.J. 188, 203, 156 A.2d 1 (1959). Although the majority correctly summarizes the law as it relates to the element of causation, its conclusory statements demonstrate little understanding of the element of duty.
Without citing authority or attempting to develop a coherent rationale, the majority concludes that one who furnishes liquor "in any manner" to an "obviously intoxicated" person owes a duty to a third party injured by the person so furnished. In so holding, the majority simply ignores precedent. In Halvorson, " employers furnished food and refreshments, including alcoholic beverages" at their Christmas party. Halvorson, at 760. We found that although a licensed vendor of liquor may be required to *488refrain from serving someone whom he knew to have a drinking problem, the employers, as hosts of a social event, owed no such duty. Halvorson, at 763-64. Accordingly, we distinguished between a commercial licensee and a social host and held that a noncommercial furnisher of liquor owes no duty to an injured third party. Since Haluorson, this court has never found a gratuitous furnisher of alcohol to be liable for injuries resulting from the intoxication of one of his guests.
Kaiser's role as a gratuitous furnisher of alcohol is indistinguishable from the employer's role in Haluorson. Kaiser was not a licensed vendor of liquor nor was it selling liquor at a profit. Although enhancement of employee morale may have resulted from the banquet, this supposed business purpose was present in Haluorson and, indeed, is present in any social event sponsored by a business for its employees. By finding that Kaiser owes a duty here, the majority summarily departs from the distinction developed in Haluorson and, thus, overrules sub silentio a critical aspect of the case. Such a major shift in the standard for determining who owes a duty of care should be accompanied by an analysis that includes more than a mere conclusory phrase.
The Haluorson rule is strongly supported by other jurisdictions. Irrespective of their ultimate determination of social host liability, other jurisdictions reason that if a distinction between a social and nonsocial host is to be made, the basis for the distinction is if the furnisher sells or intends to make a profit from the alcohol. See, e.g., Cole v. Spring Lk. Park, 314 N.W.2d 836, 839 (Minn. 1982); Ono v. Applegate, 62 Hawaii 131, 136 n.5, 612 P.2d 533 (1980); Rappaport v. Nichols, 31 N.J. at 205-06. Thus, like Halvorson, they view a business that sponsors an event for its employees as a social host. See, e.g., Congini v. Portersville Value Co., 504 Pa. 157, 470 A.2d 515 (1983); Baird v. Roach, Inc., 11 Ohio App. 3d 16, 17, 462 N.E.2d 1229 (1983); Couts v. Ghion, 281 Pa. Super. 135, 140-41, 421 A.2d 1184 (1980). The majority rejects this rationale and, without explanation, equates Kaiser with any commercial *489vendor of liquor.
The majority attempts to mask the ultimate impact of its holding by purportedly reserving the question of social host liability. However, the inevitable extension of the majority rationale dictates a finding of liability for a social host. The majority bases Kaiser's liability squarely on the fact that Kaiser furnished alcohol. Obviously, any social host who provides alcohol is just as much a furnisher as Kaiser. Indeed, this simple logic led the New Jersey Supreme Court to conclude that the adoption of the furnisher rationale mandated the rejection of the nonliability rule for social hosts. Kelly v. Gwinnell, 96 N.J. 538, 547-48, 476 A.2d 1219 (1984). Thus, by imposing liability on any server of alcohol while purporting to reserve the question of social host liability, the majority attempts to disguise the dramatic expansion of liability which must result from its rationale.
In addition to rejecting the distinction articulated in Halvorson, the majority opinion ignores a legislative enactment previously relied upon by this court. In Young v. Caravan Corp., 99 Wn.2d 655, 663 P.2d 834, 672 P.2d 1267 (1983), we found that a violation of the Washington State Liquor Act, RCW Title 66, constitutes negligence per se. Specifically, we held that RCW Title 66 provides a basis for imposing a civil duty on commercial vendors to refrain from selling intoxicants to a minor. Young, at 660. This duty is owed not only to a minor but to the public generally. Callan v. O'Neil, 20 Wn. App. 32, 578 P.2d 890 (1978); see RCW 66.08.010. Thus, a third party injured by the intoxicated minor's conduct has an actionable claim against the vendor of the alcohol. Callan v. O'Neil, supra.
The Washington State Liquor Act not only prohibits furnishing alcohol to a minor but also forbids selling alcohol to an apparently intoxicated person. When compared, these two provisions clearly demonstrate that liability should not be imposed on Kaiser here. In prohibiting the furnishing of liquor to minors, RCW 66.44.270 provides that "no person shall give, or otherwise supply liquor to any person under the age of twenty-one years". (Italics mine.) How*490ever, RCW 66.44.200 provides: "No person shall sell any liquor to any person apparently under the influence of liquor." (Italics mine.) By including the word "give" in RCW 66.44.270 but omitting it from RCW 66.44.200, a clear legislative choice has been made. Under the act, gratuitous furnishers of alcohol are liable only for furnishing minors, not for furnishing apparently intoxicated adults. Thus the legislative intent is manifest; Kaiser as a gratuitous furnisher of alcohol is exempt from liability here. See Cole v. Spring Lk. Park, supra at 839 (deletion of word "give" from obvious intoxication statute evidences legislative intent to preclude liability for nonsellers of alcohol).
Although tort law is often derived from common law, the keenly competing social interests involved here have led other jurisdictions to defer to legislative enactments in resolving the question of duty. See, e.g., Koback v. Crook, _Wis. 2d_, 366 N.W.2d 857 (1985); Lewis v. State, 256 N.W.2d 181 (Iowa 1977); Cole v. Spring Lk. Park, supra; Jardine v. Upper Darby Lodge 1973, 413 Pa. 626, 198 A.2d 550 (1964); Waynick v. Chicago's Last Dep't Store, 269 F.2d 322 (7th Cir. 1959). Particularly here where the Legislature has passed an enactment that we have previously determined provides a basis for civil liability, proper deference to the Legislature and the integrity of our prior decisions require us to invoke the statutorily defined duty not only to create, but also to circumscribe, liability.
More analytically obtuse than the rationale for holding Kaiser potentially liable under a negligence theory is the majority's application of the doctrine of respondeat superior.5 Under the majority analysis, Kaiser is liable, irrespective of its fault, whenever an employee drinks to excess at its social function and then commits a tort with his automobile. Thus, the obvious intoxication standard is no longer a prerequisite to liability in this context. In *491essence, Kaiser's fault, if any, is no longer relevant and strict liability is now the rule.
By imposing strict liability on Kaiser, the majority enacts by judicial fiat what the State Legislature specifically rejected. By Laws of 1955, ch. 372, the Legislature repealed the "Dramshop Act" which provided:
Every husband, wife, child, parent, guardian, employe, or other person who shall be injured in person or property, or means of support, by any intoxicated person, or in consequence of the intoxication, habitual or otherwise, of any person, shall have a right of action, in his or her own name, severally or jointly, against any person or persons who shall, by selling or giving intoxicating liquors, have caused the intoxication of such person, for all damages sustained, and the same may be recovered in a civil action in any court of competent jurisdiction. On the trial of such action, the plaintiff or plaintiffs must prove that such intoxicating liquors were sold under circumstances sufficient to lead a man of ordinary intelligence to believe that such sale would probably result in intoxication.
Laws of 1905, ch. 62, § 1, p. 120. Thus, by using the doctrine of respondeat superior here, the majority scoffs at the Legislature's will by arbitrarily reenacting a portion of a repealed statute.
This judicial encroachment into the legislative province cannot be justified as simply an application of a settled common law principle. Despite the majority's contention that they are developing "a new application" of respondeat superior, they are, in actuality, radically altering the doctrine.
Respondeat superior is an agency theory that imposes liability on the master for the tort of his servant committed in the "scope of employment". Titus v. Tacoma Smeltermen's Union, Local 25, 62 Wn.2d 461, 469, 383 P.2d 504 (1963); Nelson v. Broderick & Bascom Rope Co., 53 Wn.2d 239, 241, 332 P.2d 460 (1958). Although we have used different wording to articulate when an employee is within the scope of employment, we have always required that a nexus *492exist between the employee's activity and the employer's interest before we imposed vicarious liability on an employer. Elder v. Cisco Constr. Co., 52 Wn.2d 241, 324 P.2d 1082 (1958); Van Court v. Lodge Cab Co., 198 Wash. 530, 89 P.2d 206 (1939). We have consistently required that the nexus exist at the time the act that results in injury occurs. Foote v. Grant, 55 Wn.2d 797, 800, 350 P.2d 870 (1960); Roletto v. Department Stores Garage Co., 30 Wn.2d 439, 442, 191 P.2d 875 (1948); Poundstone v. Whitney, 189 Wash. 494, 501, 65 P.2d 1261 (1937). The majority abandons this fundamental requirement by finding the nexus prior to this time.
In so finding, the majority holds an employer liable for the negligent acts of his employee, even though no employment relationship existed when the act upon which liability is predicated occurred. Here, the employee's liability is based upon the act of driving an automobile in the wrong direction on a freeway off ramp, which resulted in striking a motorcycle and its driver. At the time of the accident, the employee was driving to work in his own automobile. We have consistently recognized that if no business is transacted, an employee is not within the scope of employment while driving to or from work in his automobile. McNew v. Puget Sound Pulp & Timber Co., 37 Wn.2d 495, 499, 224 P.2d 627 (1950); Roletto v. Department Stores Garage Co., supra. Thus, the majority finds Kaiser liable based on the agency theory of respondeat superior even though the employee was not an agent when the act resulting in injury occurred.
Indeed, the majority does not even purport to analyze the employee's status as an agent at that time. Instead, it picks a point earlier in time, the banquet. After finding that the employee was within the scope of employment at the time of the banquet, the majority concludes that Kaiser can be held liable for tortious acts committed by the employee after he leaves the banquet. By holding that the determination of agency at the time of the act resulting in injury is irrelevant to finding agency liability, the majority puts the *493cart before the horse.
Furthermore, the majority's doctrine imposes patently arbitrary distinctions for determining liability. The majority finds liability only when the employee injures someone while driving from the employer's social event. No logical analysis can explain why an employee is more of an agent of the employer when he commits a tort while driving from the banquet than he is when he commits a tort in any other manner while leaving the banquet. The majority also expands the scope of respondeat superior only when an employer hosts a social event. Again, the majority opinion never explains the rationale for finding that employers are more culpable under an agency theory when they host a social event than they are at any other time.
Thus, by adopting the "banquet hosting employer" exception to the doctrine of respondeat superior, the majority reenacts repealed legislation with a logically indefensible analysis that bears no resemblance to the principle of respondeat superior.
Red Lion Inn
The majority also holds Red Lion Inn potentially liable for serving alcohol to Kaiser's employee Edwards. As noted above, a furnisher of alcohol is liable only if he sells it to a person who is obviously intoxicated. In defining the obvious intoxication standard, we have required that "a person's sobriety must be judged by the way she appeared to those around her, not by what a blood alcohol test may subsequently reveal." Wilson v. Steinbach, 98 Wn.2d 434, 439, 656 P.2d 1030 (1982). In direct contravention to Wilson's holding, the majority finds Red Lion potentially liable by considering evidence of intoxication which Red Lion could not have seen. Thus, the majority alters the standard of care that a seller must exercise in determining if a customer is intoxicated. The majority now requires a furnisher to exercise the skill, expertise, and technique of a trained police officer in detecting intoxication. As its analysis of Kaiser's liability abrogates the rule in Halvorson, the *494majority's analysis of Red Lion's liability abrogates the obvious intoxication standard in Wilson.
The majority concedes that the depositions contain no evidence from anyone at the banquet that Edwards was visibly intoxicated. Instead, the majority relies on the statement of the investigating officer made after Edwards left the banquet. However, the officer's conclusions were based on specialized "sobriety tests" designed to detect intoxication. Thus, before concluding that Edwards was intoxicated, the officer directed Edwards to stand with heels together, eyes closed and head tilted back. In this position Edwards was ordered to touch his nose with the index finger of each hand. The officer also directed Edwards to stand first on his right foot alone and then on his left foot alone. Although prior to administering the tests the officer observed that Edwards "appeared unsteady on his feet", the circumstances surrounding that observation had no relation to the setting in which Red Lion observed Edwards. The officer made this observation while Edwards was in the process of standing up after having been in a kneeling position. Red Lion had no opportunity, nor should it be required, to observe Edwards in these wholly unnatural postures.
In Wilson v. Steinbach, supra, we held that evidence of a defendant's blood alcohol level was not relevant to a determination of obvious intoxication. Here, Red Lion had no more opportunity to observe Edwards' responses to the field sobriety tests than it had to discover his blood alcohol level. Thus, the majority changes the Wilson test from determining intoxication "by the way she appeared to those around her" to determining intoxication by the way one would appear to a trained police officer after undergoing a series of specially designed sobriety tests.
The majority also holds that the amount of alcohol consumed, standing alone, raises a material issue of fact as to Red Lion's liability. The majority states that if a furn-isher knew or should have known that a patron was intoxicated, the furnisher can be held liable for injuries inflicted *495by the patron. It then concludes that the number of drinks consumed, by itself, raises a material issue of fact as to whether the server knew or should have known a patron was intoxicated. Instead of requiring servers to detect signs of intoxication, the majority now requires furnishers affirmatively to refrain from serving patrons more than an undesignated number of drinks. The mandate of Wilson v. Steinbach, supra, that "a person's sobriety must be judged by the way she appeared to those around her" is no longer a prerequisite for liability. In essence, the majority again renders the obvious intoxication standard meaningless.
By so holding, the majority ignores the realities of establishments that serve alcohol. Alcoholic beverages can usually be ordered through a bartender or one of several waiters or waitresses. In addition, patrons often purchase drinks for each other. By what standard must a server gauge the number of drinks he can serve? Perhaps the majority contemplates cocktail waitresses asking each patron's weight, height, unusual medical conditions, time of last meal, drinks consumed at any prior functions, and the like. This presents such establishments with a Hobson's choice. Either they face liability without fault on their part or they must drastically restructure the way they do business. The court far exceeds its proper province by mandating such an absurd change in the way an industry operates.
The obvious intoxication standard of Wilson v. Stein-bach, supra, imposed an obligation on establishments to which they could be expected to conform. Indeed, if a patron shows signs of intoxication and is served nonetheless, the server is negligent and the imposition of liability is clearly justifiable. However, by holding that an establishment must keep an exact tabulation of the number of drinks a patron consumes, the majority imposes a Draconian standard of care on an entire industry. In doing so, it abolishes the proper balance developed in past decisions between the imposition of a feasible obligation on servers of alcohol and the desire to compensate a victim. The majority ignores the former in their zeal to foster the latter.
*496Viewed in its totality, the majority opinion develops a rationale that will contort the landscape of social relations in the state. The adoption of the furnisher rationale coupled with the imposition of liability based solely on the number of drinks consumed requires social hosts to actively police their parties. Thus, the majority rationale will have us pry into the privacy of a person's home to ensure that the host of a party counts the drinks of the guests.
None of us doubt the tragic consequences of drunk driving nor do we seek to diminish the efforts of those dedicated to ending the senseless slaughter on the highways. But the majority opinion paints with far too broad a brush. In one fell swoop, and without benefit of law or logic, the majority accomplishes the following:
1. Rejects, sub rosa, two well founded cases of this court, Halvorson and Wilson;
2. Contorts the doctrine of respondeat superior by applying it to a wholly inapplicable situation;
3. Usurps legislative mandate by judicially reenacting the Dramshop Act and ignoring a controlling statute;
4. Threatens the viability of a legitimate industry by imposing arbitrary, artificial and arcane requirements with which it cannot possibly comply;
5. Transforms a social host into an insurer and ensurer of a guest's sobriety by requiring the host to either keep an exact tabulation of drinks consumed or face liability; and
6. Absolves the real culprit, the drunk driver, by spreading the risk to "furnishers" of alcohol who, under the majority's test, can be as innocent as the victim.
II
I now turn to the concurring opinion which is yet another exercise in judicial lawmaking. Firmly rooted not in our past holdings, but rather in social philosophy derived from law review articles, the concurrence invents a new theory of liability for employers who furnish alcohol to their adult employees and further erases the "obvious intoxication" standard (completing the job which the majority opinion *497started). In its zeal to place the ultimate blame for drunk driving not on the drunk driver, but instead on the fur-nishers of alcohol, the concurrence would subject both employers and commercial sellers of alcohol to vague and incomprehensible guidelines. It defends this usurpation of the legislative function by asserting that "this court can complement the efforts of the legislative branch by apprising it of a matter which it appears to have ignored." Concurrence, at 481. Given the current high level of public awareness of drunk driving, it seems presumptuous to state that the Legislature has ignored the matter.
I have several objections to the views expressed in the concurrence. First, I find nothing in our prior decisions that justifies treating the employer-employee relationship as a "special relationship" which somehow imposes additional burdens on the employer. In Young v. Caravan Corp., 99 Wn.2d 655, 663 P.2d 834, 672 P.2d 1267 (1983), we held that the sale of alcohol to minors in violation of a statute was negligence per se; here, however, we are dealing not with minors but rather with mature adults. In apparent desperation, the concurrence turns to Petersen v. State, 100 Wn.2d 421, 671 P.2d 230 (1983), to draw what can only be described as a bizarre analogy with the facts of the present case. In Petersen we found that a special relationship existed between a psychiatrist and his mental patient because of the latter's blatant dangerous propensities. The mental patient in Petersen had been a frequent user of angel dust, had cut off his left testicle, and had been diagnosed as schizophrenic, paranoid and depressive. Thus, we held that the psychiatrist had a duty to take reasonable precautions to protect others from this man's "drug-related mental problems." Petersen, at 428-29. I fail to see how one can compare the obvious potential dangers posed in Petersen with those posed by typical adult employees at an employer-sponsored party.
After imposing its new duty on employers, the concurrence describes the nature of the duty by using a statistical analysis that virtually erases the obvious intoxication *498standard. We are told that since "[approximately 10 percent of adult Americans are either alcoholics or experience some problems with their drinking" (concurrence, at 474-75), the employer can, therefore, constructively "foresee" that any of its employee-drinkers might later injure another person while driving drunk. The employer becomes responsible, in effect, for the actions of every one of its employees even if it cannot detect those who are actually intoxicated. Hence, the concurrence has not only departed from our prior decisions in imposing a new duty on employers, but has also made this duty a particularly onerous one.
The concurrence next submits a laundry list of "reasonable steps" which furnishers of alcohol might take to avoid liability. However, these guidelines are so vague and disorganized that no employer or commercial establishment can accurately determine what actions qualify as "reasonable". Amid this uncertainty, any medium to large business that wishes to serve alcohol at its social functions would literally have to police those events or subject itself to potentially staggering damages in a subsequent lawsuit. Indeed, we are told that employers must "monitor" and "control" their employees, and that commercial establishments are expected to hire bouncers or the Washington State Patrol to accomplish this task.
The rationale for imposing this new array of duties is readily apparent. The concurrence would have us believe that the ultimate blame for the carnage caused by drunk drivers must always lie with the furnishers, rather than the abusers, of alcohol. Commercial establishments serving alcohol are portrayed as amoral entities that will stop at nothing in their quest for profit. ("[0]ne can only wonder whether the servers' attention, directed to empty glasses, was similarly directed to spotting the abusers of such generous libations." Concurrence, at 478.) Employers furnishing alcohol to their employees are portrayed as blithely ignorant of the "potential hazards of [their] own conviviality". Concurrence, at 476. The employees themselves are *499treated as mere children who constantly need to be monitored and controlled. Nowhere in the concurrence can one find the concept of individual responsibility — the recognition that in some instances the drunk driver alone should be held responsible for his actions.
As stated earlier, I am very much aware that drunk driving is a tragic and costly problem. Unlike the concurrence, however, I do not believe we should sacrifice the concept of individual responsibility as part of a crusade against fur-nishers of alcohol. In Halvorson v. Birchfield Boiler, Inc., 76 Wn.2d 759, 458 P.2d 897 (1969), we held that as a general rule, furnishers of alcohol will not be held liable for the actions of drunk drivers. We have since recognized certain limited exceptions to this rule, but we have been careful not to let the exceptions engulf the rule. Should the Legislature wish to reenact the Dramshop Act, it may, of course, do so; we should not, however, arrogate that function to ourselves.
For the foregoing reasons, I must dissent from the views expressed in the majority and concurring opinions. I would affirm the order of the trial court in dismissing the claims against Red Lion and Kaiser.
Dolliver, C.J., and Andersen, J., concur with Durham, J.Reconsideration denied August 28, 1986.
Referring to Justice Brachtenbach's views in this area as "the majority" may be misleading. The concurring opinion tiptoes gently around the issue without taking a position.