dissenting.
I disagree that the second amended petition of plaintiffs states a cause of action in Texas. Accordingly, I dissent to the disposition rendered in the majority opinion.
This is an appeal from a judgment of dismissal. The suit alleged that Beard suffered personal injuries when he was struck by Moos’ pickup and that Moos was driving while intoxicated. Beard seeks to recover damages from the two couples declared to be the social hosts who served intoxicating liquor to Moos. The question is whether the plaintiffs have asserted a cause of action recognized in Texas: is there social host liability to a third party for the acts of an intoxicated adult guest?
It is the law in Texas that an injured third party has a valid claim against the vendor of the intoxicating liquor sold to the DWI defendant. TEX.ALCO.BEV.CODE ANN. §§ 2.01-2.03 (Vernon Supp.1990). This is the “dram shop” act which recognizes the liability of licensed providers if the allegations of the petition and the proof meet the standard enunciated in the Act. Enacted and in effect when El Chico Corp. v. Poole, 732 S.W.2d 306 (Tex.1987) was published, the statutory cause of action superseded the common law rule pronounced in El Chico.
The El Chico court expanded liability in this area by adopting a dram shop doctrine for commercial suppliers as a matter of common law. The legislature, in the meantime, agreed that the provider of liquors, under a license or permit, could be made the object of a statutory cause of action (1) when it was apparent to the provider at the time the provision occurred, (2) that the individual was obviously intoxicated (3) to the extent that he presented a clear danger to himself and others, and, (4) the intoxication of the recipient of the alcoholic beverage was a proximate cause of the damages suffered. TEX.ALCO.BEV.CODE ANN. § 2.02(a), (b)(l)(2) (Vernon 1990). Section 2.03 of the Act provides:
Statutory Remedy. The liability of providers under this chapter for the actions of their customers, members, or guests who are or become intoxicated is in lieu of common law or other statutory law warranties and duties of providers of alcoholic beverages. This chapter does not impose obligations on a provider of alcoholic beverages other than those expressly stated in this chapter. This chapter provides the exclusive cause of action for providing an alcoholic beverage to a person 18 years of age or older, (emphasis added)
TEX.ALCO.BEV.CODE ANN. § 2.03 (Vernon Supp.1990). Another express provision in the same area is found in section 2.02(a), of the Alcoholic Beverage Code which states that this chapter does not affect the right of any person to bring a common law action against the intoxicated person allegedly causing the injuries. There is no mention of a common law action against a social host who furnished the intoxicants. It is stated in the 1988 Supplement to PROSSER & KEETON, THE LAW OF TORTS § 53 Limited Duty (5th ed. 1984), *165that approximately 20 states have dram shop acts, some of which limit the damages recoverable. It is noteworthy that the Act in Texas specifies the predicates which must be alleged and proved in order to state a cause of action and to hold the commercial provider liable.
PROSSER & KEETON recollects that traditional common law, based upon notions of individual responsibility and social policy, held the supplier of alcohol free of liability, on the ground that the person who drank the liquor, not the person who supplied it, was the proximate cause of the harm. Although statutory dram shop liability, as well as common law liability against commercial providers of liquor, is now generally recognized by most jurisdictions, that is not the case when it comes to imposing liability in negligence on social hosts for supplying liquor to their guests whose resulting intoxication causes harm. See PROSSER & KEETON at § 53. (Supp.1988). For example, the California Supreme Court in Coulter v. Superior Court of San Mateo County, 21 Cal.3d 144, 145 Cal.Rptr. 534, 577 P.2d 669 (1978) adopted a common law negligence liability rule against social hosts. That state’s legislature immediately abrogated the rule. CAL.CIV.CODE § 1714 (West 1978). The California Act states in part that it is the legislature’s intent to reinstate the prior judicial interpretation of this section as it relates to proximate cause — that the furnishing of alcoholic beverages is not the proximate cause of injuries resulting from intoxication, but rather it is the consumption that is the proximate cause of injuries. The California Act also specifically eliminates the social host from liability. CAL. CIV.CODE § 1714(c).
The Iowa legislature replaced its dram shop statute, expressly overruling Clark v. Mincks, 364 N.W.2d 226 (Iowa 1985), which held the social host liable for a death caused by an intoxicated adult guest. That Act provides, in part:
b. The general assembly declares that this subsection shall be interpreted so that the holding of Clark v. Mincks, 364 N.W.2d 226 (Iowa 1985) is abrogated in favor of prior judicial interpretations finding the consumption of alcoholic beverages, wine, or beer rather than the serving of alcoholic beverages, wine, or beer as the proximate cause of injury inflicted upon another by an intoxicated person.
IOWA CODE ANN. § 123.49 (West 1987). Section 123.92 of the same Act expressly limits liability to vendors.
The state of Minnesota amended its statute to eliminate social host liability. Holmquist v. Miller, 367 N.W.2d 468, 470 (Minn.1985). See MINN.STAT.ANN. § 340A.801 (West Supp.1988). Other states have provided for limited liability of social hosts. New Mexico requires that the alcoholic beverages be provided to the social guest recklessly in disregard of the rights of others. See N.M.STAT.ANN. § 41-11-1(E) (1986). Oregon requires that the liquor be provided to the guest while he was visibly intoxicated, and the plaintiff must prove by clear and convincing evidence that the guest was served alcoholic beverages while visibly intoxicated. See OR.REV.STAT. § 30.950 (1987).
The New Jersey Supreme Court’s decision in Kelly v. Gwinnell, 96 N.J. 538, 476 A.2d 1219 (1984) was the first in which a state supreme court imposed social host liability for injuries caused by an intoxicated adult guest that the state legislature did not subsequently overrule. See Comment, The Continuing Search for Solutions to the Drinking Driver Tragedy and the Problem of Social Host Liability, 82 NW. U.L.REY. 403, 413 (1988). The Kelly v. Gwinnell court limited its holding to affect only the host who had directly served his guest and who did so even though he knew the guest was intoxicated and would soon be driving. It is significant that in the present case, even though relying heavily on Kelly v. Gwinnel, 96 N.J. 538, 476 A.2d 1219 (1984), neither the majority opinion nor the appellants so limit their use of Kelly v. Gwinnett to the specific social host who directly served the intoxicants, knowing the guest was intoxicated and would soon be driving. The New Jersey court emphasized that it was passing only on the duty of a social host who “directly *166serves the guest and continues to do so even after the guest is visibly intoxicated.” Id. at 556, 476 A.2d 1219. In fact, the manner in which that case is presently applied by the majority opinion, without any limitations, would authorize imposition of liability against all social hosts, including spouses and co-host friends, although only one of them has served intoxicants to a guest who later injures a third party. Kelly v. Gwinnell did not sweep with so broad a brush.
A few states have recognized a cause of action against a social host when the intoxicated person served is a minor, usually basing the court’s holding on specific statutes which forbid sale of alcoholic beverages to minors, as well as those which prohibit serving or furnishing intoxicants to a minor as a per se violation of the law. We do not have that circumstance in this case.
The noted article recites that since the decision in Kelly v. Gwinnell, courts in nine states have refused to recognize a cause of action based on social host liability. They are Arizona, Florida, Maryland, Minnesota, Mississippi, Missouri, New York, and South Carolina. 82 NW.U.L. REV. at 418 (all citations listed in footnote). There are three rationales justifying rejection of social host liability in negligence reflected in those states’ opinions: that criminal liquor control statutes regulate only commercial suppliers of alcohol, and therefore do not establish a standard of conduct for social hosts; that the traditional common law rule — the serving of liquor is not the proximate cause of injury, rather the consumption is the proximate cause — should remain in place unless the legislature changes it; and, that the state dram shop act is the exclusive remedy for third parties’ alcohol-related injuries and does not apply to social hosts.
Although the facts of Walker v. Children’s Services, Inc., 751 S.W.2d 717 (Tex. App.-Amarillo 1988, writ denied) involved the intoxicated driver’s cause of action against his social host, that court nevertheless addressed the liability question now before this court:
We must now examine whether Texas should join the minority of jurisdictions and extend the liability found in El Chico to a social host. We conclude that the duty should not be extended.
Id. at 720. The court also stated the great weight of authority supports the position that a social host should not be held liable to his guests nor to third parties whom his guests may injure. Id. Contrary to the majority’s assertion that the statements in the opinion concerning third party injuries are dicta, it is noteworthy that the court specifically included and decided that issue by stating that one of the two questions on appeal in Walker was: “Does a cause of action exist in Texas which imposes a duty on social hosts not to serve liquor to guests who are obviously intoxicated in order to prevent them from harming themselves or others?” Id. at 718.
It is reasonable to conclude, as did the Walker court, that in El Chico the Supreme Court found significant legislative policy in existing Alcoholic Beverage Code regulations to impart knowledge of foreseeable risk on the commercial provider of the alcohol, and the court thus could fashion a civil remedy for negligently creating that risk. The Walker court concluded there was nothing to indicate a legislative policy with regard to social hosts and declined to extend a civil remedy to social guests who injure themselves or others. Walker v. Children’s Services, Inc., 751 S.W.2d at 720. Therefore, it is important to the jurisprudence of this state and to the disposition of the present case that the Supreme Court of Texas did tacitly approve the reasoning in Walker regarding the liability of social hosts either to the guest himself or to an injured third party by denying the application for writ of error.
While some states are wholly governed by the common law, Texas is not one of them. It is a state governed by statutes and codes almost to the exclusion of common law which has not been codified. The Texas Legislature long ago actively entered the particular field of alcoholic beverages regulation. It has constantly updated that Code, responding to societal needs and changes. It has clearly indicated its ability *167to deal with such a policy question as the one before this court. The courts of Texas do not write on “a clean slate” in this field as would a court in a wholly common law jurisdiction. The issue of civil liability for a social host has broad ramifications with many conflicting interests and concerns of society involved. The judiciary is not equipped to receive public input as is our legislature, with its public committee hearings, and to resolve broad public policy questions based on a societal consensus. See Bankston v. Brennan, 507 So.2d 1385, 1387 (Fla.1987). The question before this court has many ramifications affecting society which have not been addressed and cannot be resolved by the majority holding. It is one that is properly within the realm of the legislature to resolve. See Burkhart v. Harrod, 110 Wash.2d 381, 755 P.2d 759, 761-63 (1988) (comprehensive discussion of the reasons why social host liability is a subject best left to the body equipped to deal with it — the legislature). As noted in Burkhart, the decision to defer the issue of social host liability to the legislature is fully supported by precedent. Id. at 762 (citations omitted).
Therefore I respectfully dissent. I would hold the second amended petition does not state a recognized cause of action in Texas and affirm the judgment of the trial court.