dissenting.
I respectfully dissent.
I disagree with the Court’s conclusion that the jury verdict must be vacated on the ground that the defendant in the circumstances of this case owed no duty to these plaintiffs.
The determination of the existence of a duty is necessarily an ad hoc process, specific to the facts of each case. Concededly, no legal duty is owed to an unforeseeable plaintiff. See Palsgraf v. Long Island R.R., 248 N.Y. 339, —, 162 N.E. 99, 99-100 (1928). But when a plaintiff is foreseeable, a duty will exist if “reasonable persons would recognize that it exists.” W. Keeton, D. Dobbs, R. Keeton & D. Owen, Prosser and Keeton on Torts, § 53 at 359 (5th ed. 1984) [hereinafter “Prosser & Kee-ton”]. In this case, it is reasonable for the trial court and the jury to have recognized a duty on the part of the defendant to protect the plaintiffs from an unreasonable risk of harm caused by the defendant through its employee.
Viewing the evidence in the light most favorable to the plaintiffs, we must conclude that the jury believed Grantham’s testimony that at the informal Christmas party in the office of shipping supervisor Mooney, Mooney saw Grantham and other drivers drinking their own liquor in violation of both company policy and State Liquor Commission regulations, but did not do or say anything to prevent such conduct. We must also conclude that the jury found that Mooney was aware Grantham was employed at Burger King in addition to his position at Cumberland and York and that Grantham had been driving a company delivery truck for 10 hours the day before the accident and from 6:55 A.M. until 12:50 P.M. the day of the accident. It would not require a great leap of logic for Mooney to realize that Grantham and his co-workers might become drowsy, if not intoxicated, as a result of the impromptu drinking party .held in Mooney’s office.1
The defendant and Mooney knew that the employees drove to and from work in their automobiles. An employer is ordinarily not obligated to restrain the operation of a motor vehicle by an employee who he knows is impaired. But where the employer shares responsibility for that impairment, a duty to third persons is clearly imposed upon him. For Mooney to have allowed Grantham and his co-workers to drink intoxicating liquor in Mooney’s office and then drive away in their motor vehicles after working since early morning was to create a foreseeable and unreasonable risk of harm to innocent third party motorists. See Dickinson v. Edwards, 105 Wash.2d 457, 474, 716 P.2d 814, 823 (1986) (Utter, J. concurring); Kelly v. Gwinnell, 96 N.J. 538, 548, 476 A.2d 1219, 1224 (1984).
*264The duty to the Plaintiffs does not depend on the existence of company policy or State Liquor Commission regulations prohibiting drinking on the premises. Rather, it derives from the common law “reasonably forseeable plaintiff” standard followed in American Jurisprudence for nearly six decades. See Palsgraf, 162 N.E. at 100, 101; Prosser & Keeton, § 31 at 171. However, company policy and State regulations are relevant factors to be considered together with all other circumstances in determining whether a plaintiff is reasonably foreseeable. The Superior Court correctly perceived that common law negligence liability was an additional consequence of failing to do what company policy and State regulations already required the employer to do. The Court’s heavy reliance on the absence of visible intoxication and the fact that defendant did not supply Grantham with the liquor he consumed is misplaced. Both of these issues are critical to liability of a social host2 and to liability under the Dram Shop Act. This case involves an employer and not a social host, and the jury appropriately rendered a verdict on the Dram Shop Count in defendant’s favor. Moreover, in the context of common law negligence, the employer’s tacit acquiesence in the employee’s consumption of his own intoxicants in the permissive environment of an impromptu Christmas party on the employer’s premises is, for purposes of determining the existence of a duty, the functional equivalent of an employer affirmatively furnishing liquor at such a gathering.
Far from creating a “paternalistic duty” or imposing strict liability, a result that the Court understandably seeks to avoid, the facts of this case form a firm foundation upon which a common law duty may be predicated. The jury could reasonably have concluded that the Plaintiff was foreseeable and therefore a duty was owed and breached by the defendant and that damages were proximately caused by the breach of that duty. Liability here is not predicated on the mere failure to warn or prohibit an employee, not otherwise visibly intoxicated from the consumption of his own liquor, from operating his own motor vehicle. To the contrary, it is based on an act of omission, a failure by the employer to prevent an employee under its control from consuming liquor in violation of company and State regulations, and in fact acquiescing in such conduct.3
In these circumstances, particularly in view of Mooney’s awareness that Grant-ham had another job and had a potential for fatigue, the jury was justified in concluding that this first act of nonfeasance generated the further duty on the part of the employer either to warn the employee of the dangers of drowsiness or perhaps prevent the employee from operating his motor vehicle.
Moreover, I am persuaded that the widely used risk-benefit approach to determine the existence of a duty has particular application here. See United States v. Carroll Towing Co., 159 F.2d 169, 173 (2d Cir.1947), rehearing denied, 160 F.2d 482; Prosser & Keeton, § 32 at 173. That method of analysis requires a balancing of the importance of the societal interest and the probability and burden of potential injury to a plaintiff against the burden placed on a defendant if he were required to take precautions to prevent injury. Employing this approach here, it is clear that a duty was owed by the defendant to the plaintiffs. It cannot be said that the burden placed on the defendant in this case outweighed the burden the defendant placed on the driving public by permitting its employees to consume intoxicants at its warehouse. The defendant’s conduct, acting *265through its supervisor, was irresponsible. It was unnecessarily risky for this employer to have allowed employees, particularly Grantham, to consume intoxicating liquor at an impromptu party on its premises at the end of a work day, knowing they would soon drive off in their own motor vehicles. In finding the defendant in violation of a legal duty, the jury reasonably concluded that the burden of this risk should be borne by the Defendant, not the public. That common sense judgment should not be disturbed on appeal.
I would affirm the judgment of the Superior Court.
. Even if Mooney did not realize that Grantham and others might become drowsy as a result of their drinking, the jury could have concluded that a reasonable person in Mooney’s position should have realized this. See Restatement (Second.) of Torts, §§ 284(a) 285(d); § 285, comment (g); see also Prosser and Keeton, § 32 at 175; O.W. Holmes, The Common Law, at 87 (1881).
. See Dickinson, 716 P.2d at 819; Kelly, 476 A.2d at 1224 (guest must be visibly intoxicated before social host, held liable for torts committed by guest).
. Mooney’s failure to act, i.e., his failure to prevent the drinking in his office, could have been found to be negligent by the jury. The majority’s suggestion to the contrary, slip op. at 9 n. 2, is incorrect. See Restatement (Second) of Torts, § 284(b). Moreover, the supposed distinction between an act and omission is a difficult one to make: “In theory the difference between the two is fairly clear; but in practice it is not always easy to draw the line and say whether conduct is active or passive.” Prosser & Keeton, § 56 at 374 (footnote omitted).