concurring in part; dissenting in part:
I must dissent from that part of the majority opinion which fails to recognize a common law cause of action against a tavern owner or his employee(s) for serving alcohol to a noticeably intoxicated patron who suffers injury in a one-vehicle accident after leaving a drinking establishment. Although I would recognize such a cause of action and leave the determination to a jury in most instances, I wish to stress my view of the situation would leave undisturbed the traditional common law rule of nonlia-bility for selling or furnishing alcohol to an able bodied person. Only in situations where the patron would be recognized as noticeably or obviously intoxicated by a reasonable person under similar circumstances would I recognize a claim in favor of the tavern patron.
In Brigance v. Velvet Dove Restaurant, Inc., 725 P.2d 300 (Okla.1986), we for the first time held a commercial vendor of alcoholic beverages for on premises consumption must exercise reasonable care not to sell or furnish liquor to persons who, by their noticeable intoxication, may lack the capacity to safely operate a motor vehicle and are thus likely to subject third parties to an unreasonable risk of harm. In Bri-gance, as the majority states, we left open the question of whether the consumer-intoxicated driver would have a cause of action against the vendor of alcohol. Id. at 305, f.n.ll. The question was also left unresolved in McClelland v. Post No. 1201, VFW, 770 P.2d 569 (Okla.1989). The underlying facts involved in Brigance and the wrongful conduct of the seller of alcohol convince me continued civil impunity for the seller of alcohol should no longer be recognized in this jurisdiction.
DUTY
This Court has recognized a “[djuty of care is not a concept that arises only by statute”. Union Bank of Tucson v. Grif*522fin, 771 P.2d 219, 222 (Okla.1989). A duty may also arise by the force of the common law. As we noted in Brigance the common law is not static. Id. at 303. It is a dynamic and developing law where rules arise from the application of reason to changing conditions of society. Id. We also recognized in Brigance that, “[t]he development of the law of torts is peculiarly a function of the judiciary.” Id. In matters at the heart of the common law where there is no affirmative legislative pronouncement in the area (which there is not here) it is our perogative and, in fact, our responsibility to reevaluate common law rules which are no longer valid in today’s world.
In Brigance we partially relied on the Restatement (Second) of Torts § 390 (1965) in ruling there was a duty on a tavern owner for on premises consumption to exercise ordinary care under the circumstances in regard to furnishing liquor to intoxicated patrons. Id. at 304. Section 390 provides as follows:
One who supplies ... a chattel for the use of another whom the supplier knows or has reason to know to be likely because of his youth, inexperience, or otherwise, to use it in a manner involving unreasonable risk of physical harm to himself and others ... is subject to liability for physical harm resulting to them, (emphasis added)
Illustration No. 7 to § 390 goes on to provide:
A, who makes a business of letting out boats for hire, rents his boat to B and C, who are obviously so intoxicated as to make it likely that they will mismanage the boat so as to capsize it or collide with other boats. B and C by their drunken mismanagement collide with the boat of D, upsetting both boats. B, C, and D are drowned. A is subject to liability to the estates of B, C, and D under the death statute, although the estates of B and C may also be liable for the death of D.
The situation set out in the Illustration is analogous to one where a tavern owner or his employee(s) continue to serve drinks to a noticeably intoxicated patron. Injury to the intoxicated patron in our automotive society is no less foreseeable than injury to a third party, injury to whom Brigance recognized was forseeable. Id. at 304. Other courts faced with the same question have recognized no distinction on the foreseeability issue between third parties and the intoxicated patron. Lyons v. Nasby, 770 P.2d 1250, 1254 (Colo.1989); Bissett v. DMI, Inc., 220 Mont. 153, 717 P.2d 545, 547-548 (1986); See also Jevning v. Skyline Bar, 223 Mont. 422, 726 P.2d 326 (1986) and Brannigan v. Raybuck, 136 Ariz. 513, 667 P.2d 213, 216 (1983). I likewise see no rational distinction for a rule that would impose a duty running in favor of third parties while at the same time failing to recognize a duty in regard to the patron himself.
In ruling that no duty runs in favor of the intoxicated patron and in stressing our decision in Brigance afforded protection only for the “innocent bystander”, the majority appears to ignore the factual underpinnings of Brigance. Brigance involved injury to a passenger riding with the intoxicated driver. Although the injured party in Brigance was a minor it was alleged there he had been drinking alcohol with the intoxicated driver, another minor, at the tavern sued. One could, thus, hardly argue, as the majority appears to, that the victim in Brigance was an “innocent bystander”. Thus, the ruling in the instant case, coupled with our ruling in Brigance, ultimately leads to what I consider the following most illogical outcome.
Two persons go to a tavern to drink. Both become noticeably intoxicated and the tavern owner or his employee(s) continue to serve them alcohol. The two now intoxicated individuals travel home together in the same vehicle which is involved in a one-vehicle accident resulting in injury to both. Under Brigance the passenger has a cause of action against the tavern owner or its employee(s), but under the majority opinion’s teaching the driver does not. I simply do not see the logic in treating the two individuals differently. Aside from this inconsistency, it is my view the majority focuses much too much attention on the wrongful conduct of the inebriate and *523much too little on the wrongful conduct of the seller of alcohol.
Many courts, like the majority here, that have failed to recognize a duty on the part of the tavern owner to an inebriate do so on public policy grounds. See cases cited in Lyons, supra, 770 P.2d at 1255. The reasoning is based on the view that one who consciously engages in the self-indulgent act of voluntary intoxication thereby temporarily casting off ordinary powers of reason should be responsible for their own injuries resulting therefrom, protecting such individuals from their own folly fosters individual irresponsibility and allowing recovery to one who knowingly becomes intoxicated and thereby injures himself is morally indefensible. Although I agree that one who enters a tavern and drinks to noticeable intoxication and then drives away in an automobile is irresponsible, it is my view the person who continues to serve drinks to such an individual is also irresponsible and I fail to see why the common law continues to immunize such irresponsible conduct. The Supreme Court of Colorado in Lyons, supra, at 1255 expressed my thoughts when it said:
We agree that voluntary intoxication is a self-indulgent act. We also note that the person who voluntarily consumes alcohol to the point of intoxication is at the very least partially responsible for his injuries. However, the fact that the patron has acted in an unacceptable manner should in no way lessen the equally unacceptable conduct of a tavern owner. One who stands behind a bar and serves drink after drink to a visibly intoxicated customer engages in behavior which is as opprobrious as that of the customer. We think it “morally indefensible” to condone the conduct of a tavern owner who, so long as the patron is able to pay, continues to serve the intoxicated patron a steady stream of alcohol. In our view the conduct of both the patron and the tavern owner is reprehensible and should be discouraged. Insulating tavern owners, as a matter of law, from liability does not send the message that they, as well as their patrons, must be accountable for their actions.
As noted, the majority appears to focus exclusively on the wrongful conduct of the customer and seems to ignore the wrongful conduct of the tavern owner or its employee(s). In doing so it rules as a matter of law and on its view of public policy that a tavern customer is solely responsible for injuries suffered in a one-vehicle accident. Although I agree voluntary intoxication is a self-indulgent act and one who engages in such conduct is partly to blame for his injuries, the framework I would use to decide this case and to analyze negligence claims generally would not be so casually and cavalierly thrown aside each time I disapprove of a plaintiffs conduct. Lyons, supra at 1255.
To me, the proper method to register disapproval of either the patron or tavern owner’s conduct normally lies in our comparative negligence statute which allows the trier of fact (usually a jury) to assess the degrees of fault of the parties in determining liability. 23 O.S.1981, § 13. Our fundamental law, as embodied in the Oklahoma Constitution, provides contributory negligence is exclusively a question for the jury. OKLA. CONST, art. 23, § 6. A statute exists to the same effect. 23 O.S.1981, § 12. The majority avoids these provisions and, instead, implicitly indicates it is better positioned than the people of this State to determine the respective fault of the parties. I cannot countenance such a view. When the evidence in any particular case warrants a conclusion that both the customer and the seller of alcohol have engaged in wrongful conduct it is not for us, an appellate court, to take the decision-making power away from the people. In the normal case it is the jury that is in the best position to make the judgment as to relative fault when evidence is presented that both parties to the transaction have acted negligently. Although the rule espoused by the majority may have made sense when any negligence on the part of a plaintiff precluded all recovery, it makes no sense today, over a decade after our Legislature adopted comparative negligence in this jurisdiction.
*524My position would not place tavern owners under a greater duty than they are already under by virtue of the Oklahoma Constitution and the statutes of this State. It would merely provide an additional monetary incentive for tavern keepers to conform their conduct to already existing law. OKLA. CONST, art. 28, § 5 specifically provides it is a felony to sell alcoholic beverages to an intoxicated person. 37 O.S. Supp.1988, § 538(G), in carrying out the constitutional provision, provides, “[a]ny person who shall knowingly sell ... alcoholic beverage to an ... intoxicated person shall be guilty of a felony, and shall be fined not less than Five Hundred Dollars ($500.00) nor more than One Thousand Dollars ($1,000.00), or imprisoned in the State Penitentiary for not more than one (1) year, or both such fine and imprisonment”. Thus, a duty already exists to not sell alcohol to intoxicated persons. A criminal case construing a predecessor provision to § 538(G) makes clear only when the customer would be recognized by his conduct and demeanor as noticeably intoxicated to a person of ordinary experience will criminal liability attach, the basic standard I would apply in the civil arena. Kyle v. State, 366 P.2d 961, 965-966 (Okla.Crim.App.1961). Just as a tavern owner or employee may not escape criminal liability by shutting their eyes and ears when faced with an obviously intoxicated patron this Court should not shut its eyes and ears by continuing a rule of law which ignores the wrongful conduct of a seller of alcohol merely because it abhors the conduct of the customer who drinks it.
I wish to stress the test I would apply is not whether the patron is “legally intoxicated”, i.e. considered to be under the influence of alcohol by virtue of a breath or blood test performed pursuant to Oklahoma statutes which show an alcohol content of ten-hundredths (0.10) or more. 47 O.S.Supp.1990, § 11-902. In my view, such a rule may be an impossible standard to place on tavern owners. However, tavern owners should easily be able to determine in the exercise of reasonable judgment whether a patron is noticeably intoxicated, a judgment I believe is capable of being made by an ordinary person under similar circumstances.
Although I dissent from that part of the majority opinion which fails to recognize the potentiality of a cause of action under the common law I concur in Part III(A), which holds a violation of 37 O.S.Supp. 1985, § 537(A)(2) does not amount to negligence per se.
I am authorized to state Justice KAU-GER joins in the views expressed herein.