dissenting.
In my judgment, an opinion of a court of last resort should serve certain functions. The ultimate decision should be clearly stated together with sufficient facts so as to enable the decision to be used as controlling precedent in similar cases. Assuming that the case is of any significance, the opinion should state the rationale upon which the decision was reached in order to demonstrate that it was reached on more than instinct or result orientation. Hopefully, there will thus be engendered respect and acceptance for the “law” announced by the opinion and the institution which so announced the “law." Perhaps, more importantly, a clear statement of the Court’s reasoning process will aid the development of the law since it will not only be useful in identical or “factually” similar future cases, but may also prove useful in conceptually analogous cases.
In the unusual cases where existing precedent is overruled, it is even more important that a rationale be stated to indicate the reason or perhaps the “policy” bases upon which a change is deemed desirable, necessary and demanded. In those few cases where a court clearly enunciates policy by either overruling a policy determination of the legislature or by establishing as a policy what the legislature has refused to establish, a court must be even more careful to demonstrate that it has examined the various competing policies and to state its reason for the adoption of one policy in preference to another.
With respect, I believe today’s majority opinion suffers two defects. First, it is wrong in its result. Second, it provides no rationale or reasoning process. It rather provides only a superficial gloss to the very large questions of whether the Court should judicially legislate in an area in which the great majority of jurisdictions have acted through their legislature or what policies are served by the overruling of what has been termed nearly unanimous common law doctrine. The majority decision fails to even pay lip service to the established rule of decision to be followed by our courts, which originated in Idaho in 1864, continues to remain codified as I.C. § 73-116, and requires the application of the common law of England as the rule of decision in all courts of this state to the extent not inconsistent with legislatively enacted statutes. See Cannon v. Seyboldt, 55 Idaho 796, 48 P.2d 406 (1935). Such would, of course, require a result contrary to that of the majority.
Meade v. Freeman, 93 Idaho 389, 462 P.2d 54 (1969), is indistinguishable from the instant case in any relevant factor. The procedural juncture was the same and the facts are nearly identical. There the Court noted: “The facts are classic in their simplicity, but the legal questions presented are exceedingly complex and of first impression in Idaho.” At p. 390, 462 P.2d at p. 55. Those questions were posed as: “Has our legislature authorized a new cause of action against a purveyor of intoxicants, and if our legislature has not, should this Court declare a new cause of action?”
*622In Meade, it was clearly held that there was not then in existence legislatively created dram shop liability. It was noted that at one time a limited form of legislatively created dram shop liability existed in Idaho, but had been repealed. Although Donaldson, C. J., dissented on other grounds, he was careful to point out his agreement with the majority holding that no legislatively created dram shop liability existed. Thus, while a majority of other states have created dram shop liability by legislation, Idaho had not at the time of Meade. There is no such liability in existence at the present time. The legislature is held to be on notice of the decisions of this Court, C. Forsman Real Estate Co. v. Hatch, 97 Idaho 511, 547 P.2d 1116 (1976); Oregon Shortline R. Co. v. Pfost, 53 Idaho 559, 27 P.2d 877 (1923), and has had ample opportunity since 1969 to have acted in response to the invitation of Meade: “If such is to be done, it should be done by the legislature wherein all of the policy considerations can and should be carefully weighed and from which, per chance, liability of the type sought here will become a reality with the enactment of a dram shop act.” At p. 395, 462 P.2d at p. 60.
I pass then to the second prong of Meade; since the legislature has not acted to create dram shop liability, should this Court so judicially legislate? Some small effort at brevity dictates that reference to Meade will amply reveal that such liability did not exist at common law and has been judicially created in only a small minority of jurisdictions. In my judgment, the majority opinion fails to even address the question of whether this Court should create a new cause of action where the legislature has refused to do so. It merely notes that some jurisdictions have supposedly reversed themselves since Meade. We are favored with no discussion of why the reasoning of some decisions should be considered more persuasive than others and why that reasoning recommends itself to this Court.
I note that the majority cites the California decision of Vesely v. Sager, 5 Cal.3d 153, 95 Cal.Rptr. 623, 486 P.2d 151 (1971). The California Court indeed held that which the majority opinion attributes to it. One is impelled to observe that such a result should not be unexpected from a Court which had so far departed from traditional tort doctrine to hold that a defendant may be held to have reasonably expected a third person would commit murder and thus be civilly liable to heirs of the victim. See Tarasoff v. Regents of the University of California, 17 Cal.3d 425, 131 Cal.Rptr. 14, 551 P.2d 334 (1976). See also Hergenrether v. East, 61 Cal.2d 440, 39 Cal.Rptr. 4, 393 P.2d 164 (Cal.1964), where a defendant was held liable for damages of plaintiffs, who were injured after defendant’s truck was stolen by unknown third parties and thereafter involved in a collision with plaintiffs’ automobile. Perhaps a more practical observation is that difficult facts sometimes produce bad law.
“Defendant Sager owned and operated the Buckhorn Lodge, a roadhouse located near the top of Mount Baldy in San Bernardino County, and was engaged in the selling of alcoholic beverages to the general public. Beginning at about 10:00 p. m., on April 8, 1968, Sager served or permitted defendant O’Connell to be served large quantities of alcoholic beverages * * *. Sager also knew that the only route leaving the Buckhorn Lodge was a very steep, winding and narrow mountain road and that O’Connell was going to drive down that road. Nevertheless, Sager continued to serve O’Connell alcoholic drinks past the normal closing time of 2:00 a. m. until 5:15 a. m., on April 9. After leaving the lodge, O’Connell drove down the road, veered into the opposite lane, and struck plaintiff’s vehicle. The complaint also alleges that O’Connell drove the automobile with the consent, permission, and knowledge of the remaining defendants, that each defendant was the employee and agent of the other defendants, and that each of the defendants ‘was at all times acting within the purpose and scope of said agency and employment.’ ” Vesely, 486 P.2d at 154, 95 Cal.Rptr. at 626.
*623The second of the cases relied on by the majority is Pence v. Ketchum, 326 So.2d 831 (La.1976). The majority’s reliance on Ketch-um is misplaced. At the outset, the question addressed in Ketchum is far removed from the instant case. There, the plaintiff was an intoxicated business invitee of the defendant, who was injured after having been ejected from the bar. Clearly, there was involved only the quantum of duty between a purveyor and a consumer of intoxicants and the alleged breach of that duty, much as between any other business operator and a patron business invitee. I deem such to be a far cry from the instant question of the duty, if any, existing between a business operator and a third person whose injuries were caused by a business invitee at a different place and a different time. Lastly, Ketchum was in turn overruled in Thrasher v. Leggett, 373 So.2d 494 (La.1979). See 40 La.Law Rev. 938 (1980).
The third case relied upon by the majority is Lewis v. State, 256 N.W.2d 181 (Iowa 1977). As the title might imply, the action was brought against the State for the alleged negligent "and wrongful sale of intoxicating liquor by the State through its liquor sale monopoly. While the opinion in Lewis did discuss the establishment of dram shop liability by common law judicial enactment, the fact remains that Iowa then had and presently has legislatively created dram shop liability. See Iowa Code 1954, § 129.-1-129.12, Iowa Session Laws 1971, Ch. 131, §§ 92-94, Code of Iowa 1979 §§ 123.92-123.-94.
Neglected by the majority are the cases of Hamm v. Carson City Nuggett, Inc., 450 P.2d 358 (Nev.1969), and Holmes v. Circo, 244 N.W.2d 65 (Neb.1976). In Holmes, a unanimous Court in a factual and legal context indistinguishable from the case at bar refused to judicially create dram shop liability, stating:
“With case law supporting the position of both parties, the ultimate decision of whether to impose a civil duty on the tavern owner because of a statute drawn to protect the public by preventing the sale of liquor to those intoxicated or under age is clearly a question of policy. “We are mindful of the misery caused by drunken drivers and the losses sustained by both individuals and society at the hands of drunken drivers, but the task of limiting and defining a new cause of action which could grow from a fact nucleus formed from any combination of numerous permutations of the fact situation before us is properly within the realm of the Legislature.”
[See a critical note, 56 Neb.Law Rev. 951 (1977).]
One may argue at this juncture that this Court, within its authority to not only state but enlarge the common law, may take the step urged by the majority today. The question remains-should it, and if so, why? We are not asked to overrule judicially created immunities or exemptions-we are asked to create an entirely new cause of action, presumably based on a new philosophy. The majority here offers no explanation as to “why.”
Until now we have held that the purveying of intoxicants is too remote to constitute a proximate cause of damages by a consumer to a third person. It is held that it is not the purveying, but rather the consumption of intoxicants which is the proximate cause. It has been pointed out that such is only the result of a logical syllogism, which indicates that vending without consumption can not constitute causation.
As pointed out in Carson City Nuggett, supra, and Cirro, supra, to reach either result requires multitudinous policy decisions. Do we apply a different standard of care to only those in the business of dispensing intoxicants and, if so, within that generalization, where do we begin and where do we stop? Is such liability to be imposed upon the State of Idaho, which monopolizes all sales of “liquor” at retail for off-premises consumption and wholesales to other businesses for on-premises consumption? See Lewis v. State, supra. Is such liability to be extended to any purveyor of beer or wine, including the supermarket, the convenience store, the Ma and Pa neighborhood store, *624the automobile raceway, the ski resort, the golf course, the county fairgrounds, the fraternal or service club picnic, and the innumerable other businesses and organizations which may incidently engage in the vending of beer or wine under various circumstances? What distinction, if any, is to be drawn between different “purveyors”? Is this new liability to be applied only to “vendors”? What of the social host who furnishes or “purveys” intoxicants to his social guests? From the majority’s use of “every person” as quoted from Harper v. Hoffman, 95 Idaho 933, 523 P.2d 536 (1974), one must surmise that the new liability is not restricted to those who sell. The problem is far from illusory. See Carr v. Turner, 385 S.W.2d 656 (Ark.1965); Dwan v. Dixon, 30 Cal.Rptr. 749 (1963) [denying liability of a social host] as contrasted with Brockett v. Kitchen Boyd Motor Co., 264 Cal.App.2d 69, 70 Cal.Rptr. 136 (1968) [affirming liability of social host]. 57 Calif.L.Rev. 995 (1969).
It serves no purpose and is of no assistance to the bench and bar for the majority to state that negligence and proximate cause are questions for the jury, nor is it of any assistance to state general rules regarding a duty to use care to avoid injury when such can be “reasonably anticipated or foreseen.” A jury does not arrive at a verdict in a vacuum, but rather as a result of and in conformance with instructions of the trial court. In the instant case, is the jury to be left to its own speculation under the over-generalized language of the majority?
As set forth in the majority, “negligence” is an abstract concept which must be defined for a jury as consisting of certain elements. First and foremost among those elements there must be “a duty recognized by law.” Without the existence of “a duty recognized by law,” the remaining elements are irrelevant and can not by themselves be the basis of a cause of action in negligence.
What is the duty of the defendants here toward plaintiffs and how should a trial court define that duty in its instructions to the jury? Must a proprietor inquire about the sobriety of every entering patron? Should a proprietor inquire of a patron of his mode of transportation and if the patron intends to commit the crime of driving while intoxicated upon departure? If a proprietor does so inquire and receives satisfactory answers, has his duty been discharged? Must the proprietor count and record the number of drinks served each patron? If a patron has four drinks (assuming such would produce a blood alcohol content beyond the presumptive level, I.C. § 49-1102(b)(2)), should or must a proprietor use persuasion or even physical force to prevent the patron from entering a motor vehicle? If the proprietor so fails in his persuasiveness, is that nevertheless a discharge of his duty or is it an admission that he served the patron too many drinks? Will it be sufficient if all alcoholic beverages, as in tobacco sales, are served in containers or there is imprinted “driving after drinking may be hazardous to the health of others”? Perhaps most importantly, must any business proprietor reasonably foresee and anticipate that a customer will commit a crime because of or with the commodity sold, furnished, prescribed or delivered to the customer.
The above questions may appear facetious, but it must be repeated that the trial court must, in its jury instructions, be able to define the “duty recognized by law.” Further, and in the future, this Court must consider how, if at all, the “duty” will vary as between a proprietor of a tavern, bar or restaurant as contrasted with a business dealing in liquor, beer or wine for off-premises consumption, such as a grocer, a state liquor dispensary, or some other type of vendor.
Within the generalization of vendors of intoxicants, is it only the combination of drinking and driving which is to result in exposure to liability? Is it only the negligent as contrasted with intentional torts which may result in liability? While liquor may incapacitate or release inhibitions in some, it is also well known for brutalizing others. Should a vendor be required to determine which category a patron may fall within so that he may be protected against an action brought by an assaulted wife, *625child, or police officer who contends that it was the vending of the intoxicants that led to the assault and to the resulting damage to the plaintiff? See Cole v. Rush, 45 Cal.2d 345, 289 P.2d 450 (1955), overruled in Vesely v. Sager, supra.
The majority tells us that the policy decision is made in response to the problem of the drunken driver. We are told that a vendor will expose himself to liability if he serves one already intoxicated who he may reasonably expect will thereafter drive a motor vehicle or if he serves a completely sober person to the point where he becomes intoxicated if he may reasonably believe that the person may thereafter drive a motor vehicle. Such is, of course, only one prong of the problem. What of the vendor of automobiles who sells a vehicle to a person he knows habitually drives or occasionally drives while drunk? Do we impose like liability on the vendor of motor vehicles?
Saloon keepers and bartenders may be largely unloved and considered fair legal game. Perhaps into that same category are to be placed grocers, restauranteurs, and others who in any way, however small, deal in intoxicants of any quality. Perhaps the State, as in Iowa, Lewis v. State, supra, is to be held to liability under our Tort Claims Act.
It must be remembered that what is done today reaches far beyond this one class of business. Who placed what instrumentality in the hands, mouth or control of another person and whether such placement by a vendor can be a causative factor are questions of enormous import to the law of the State of Idaho. The reach and sweep of such new doctrine and philosophy can be enormous. Almost any business which sells any type of goods and many of the professions by a logical extension of the majority’s doctrine may now be subject to liability.
As previously stated in Meade and many other jurisdictions, such multifaceted problems of policy are best left to the legislature. In Idaho, it cannot be said that the legislature has been unaware of the problems of the drunken driver. The legislature has proscribed such conduct by the enactment of criminal statutes.
Indeed, in the instant case, this member of the United States Air Force was undesirably discharged, convicted of manslaughter and incarcerated in the State penitentiary. Hardly a day passes in which the daily newspaper does not contain columns of information relating to the conviction of drunken drivers who are routinely fined and placed on probation without incarceration. The legislature, evidently responding to that problem, made a policy decision that every person convicted of drunken driving should be required to serve a mandatory five-day jail term. With that policy, I disagree, but I would have deferred to the legislative policy decision. However, this Court in State v. McCoy, 94 Idaho 236, 486 P.2d 247 (1971), made short shift of that legislative attempt to alleviate the problem of the drunken driver in Idaho. The majority embarks on a journey into the tortuous and uncharted waters of policy which, in my judgment, is best left to the legislature.
McFADDEN, J., concurs.