I dissent. The majority, in my view, err on both basic points: (a) in holding that the proceedings on demurrer amounted to a “trial” within the meaning of Li v. Yellow Cab Co. (1975) 13 Cal.3d 804, 829 [119 Cal.Rptr. 858, 532 P.2d 1226], and (b) in refusing *863to recognize that a retail liquor seller owes his customer a duty of care to refrain from selling drinks to the customer when the latter has reached a stage of obvious intoxication.
I
The immediate history of our problem commences with Vesely v. Sager (1971) 5 Cal.3d 153 [95 Cal.Rptr. 623, 486 P.2d 151]. There the court considered the impact upon California tort law of Business and Professions Code section 25602. That statute provides: “Every person who sells, furnishes, gives, or causes to be sold, furnished, or given away, any alcoholic beverage to any habitual or common drunkard or to any obviously intoxicated person is guilty of a misdemeanor.”
In Vesely the Supreme Court abrogated the common law rule exempting liquor sellers from liability for injuries caused by drunken patrons. It held that a tavern keeper is presumptively negligent when he violates section 25602; held that the seller owes a duty of care to third persons injured by the intoxicated customer. The court expressly abstained from deciding whether the drunken patron could recover for his own injuries. (Vesely v. Sager, supra, 5 Cal.3d at p. 157; see generally, 5 Pacific L.J. 186 (1974); Keenan, Liquor Law Liability in California, 14 Santa Clara Law. 46 (1973); Silberberg, The Intoxicated Patron—A Reappraisal of the Duty of Care (1974) 20 McGill L.J. 491.)
Since Vesely, three California appellate courts have rejected attempts to extend the rule of compensability to the drunken patron himself. At a time when contributory negligence was a total bar to recovery, two courts held that a complaint exhibited contributory negligence on its face when it alleged intoxication of the plaintiff or plaintiff’s decedent, hence was vulnerable to general demurrer. (Carlisle v. Kanaywer (1972) 24 Cal.App.3d 587, 591-592 [101 Cal.Rptr. 246]; Sargent v. Goldberg (1972) 25 Cal.App.3d 940, 944 [102 Cal.Rptr. 300].) A third court held the customer barred by his assumption of risk, specifically by his assumption of the risk “that the bartender will'negligently fail to recognize the drinker’s obviously intoxicated condition.” (Cooper v. National Railroad Passenger Corp. (1975) 45 Cal.App.3d 389, 393-394 [119 Cal.Rptr. 541].)
These three post- Vesely cases were followed by the State Supreme Court’s seminal decision in Li v. Yellow Cab Co. (1975) 13 Cal.3d 804 [119 Cal.Rptr. 858. 532 P.2d 1226], In Li the court abolished California common law doctrines which interposed contributory negligence and assumption of risk as total barriers to recovery for negligence. In their *864place the court established the principle of comparative negligence, which diminishes a negligent plaintiff’s recovery in proportion to the contributory force of his negligence. (Id., at pp. 828-829.) No longer does a complaint fail to state a cause of action when, on its face, it portrays a contributorily negligent plaintiff. Such a plaintiff is not vulnerable to ouster from the courts but only to proportionate reduction of damages. Thus, if Li v. Yellow Cab Co. applies here, the three post- Vesely decisions, ousting drunken plaintiffs under now-discarded contributory negligence and assumption of risk rules, have lost their precedential force.
II
In Li v. Yellow Cab Co., supra, the Supreme Court accorded limited retroactivity to the new comparative negligence doctrine, confining it to cases in which “trial” began after the date the Li opinion became final. In the present case the defendants’ general demurrer was sustained without leave to. amend in August 1974 and a judgment of dismissal entered in September 1974, approximately seven months before the Li decision. This case was pending on appeal at the time of the Li decision. The majority opinion argues that the proceedings on demurrer amounted to a “trial,” citing such decisions as McDonough Power Equipment Co. v. Superior Court (1972) 8 Cal.3d 527, 531-532 [105 Cal.Rptr. 330, 503 P.2d 1338],
The word “trial” may be used broadly, as in McDonough, to describe any procedure for reaching a decision on the merits, or narrowly, as denoting the contest and decision on factual issues. (Superior Oil Co. v. Superior Court (1936) 6 Cal.2d 113, 116 [56 P.2d 950].) Whether a hearing on demurrer constitutes a trial depends upon the individualized purpose of the declaration in which the word appears. (4 Witkin, Cal. Procedure, Trial, § 2, p. 2862.)
A series of misjudgments leads the majority to its erroneous appraisal of the Li declaration of partial retroactivity. First, the Li opinion was ambiguous at this point. Second, the majority of this court attempt to resolve the ambiguity by resort to abstract definitions from other sources without regard to the individualized purpose of the Li declaration. Third, the majority quote but ignore the only statement of the Li opinion supplying a clue to the Supreme Court’s intention. That statement reads (13 Cal.3d at p. 829): “Upon mature reflection, in view of the very substantial number of cases involving the matter here at issue which are *865now pending in the trial and appellate courts of this state, and with particular attention to considerations of reliance applicable to individual cases according to the stage of litigation which they have reached, we have concluded that a rule of limited retroactivity should obtain here. Accordingly we hold that the present opinion shall be applicable to all cases in which trial has not begun before the date this decision becomes final . . . ."
Only rarely can the contributory negligence issue be decided on demurrer; usually the issue must await the trial of fact and the verdict of the jury. Thus, the “stage of litigation” which disposes of the contributory negligence issue is the jury trial, not the preliminary, easily reparable jousting on the pleadings. The “considerations of reliance” mentioned in Li revolve around the assemblage of evidence and its presentation to .the jury under instructions shaped by then current legal doctrines. Of course, only the Supreme Court holds the key to its own cryptic utterance. Construing that utterance in context, I believe that the court confined the word “trial” to the trial of fact.
Ill
Next, we arrive at the principal question, the question left unanswered in Vesely—is the tavern keeper civilly liable to the customer who was served drinks while obviously intoxicated?
Vesely considered the seller’s liability to a third person injured by the drunken customer; it found a duty of care running from the seller to the third person. The post- Vesely Court of Appeal decisions—Carlisle, Sargent and Cooper—asserted a bar arising from the plaintiff’s conduct, a bar which has now been removed by Li v. Yellow Cab Co. Aside from obiter dicta, none of the post- Vesely decisions inquired into the existence of a duty of care owed by seller to customer. The question is thus at large. The majority correctly conclude that section 25602 is designed to protect the intoxicated customer along with other members of the public. Thus, I join in the majority’s disapproval of the dictum in Hitson v. Dwyer (1943) 61 Cal.App.2d 803, 807-808 [143 P.2d 952], As a criminal licensing regulation, section 25602 does not stay its hand until the drunken customer injures a third party. It is violated when the bartender sees an obviously intoxicated customer and sells him drinks. The statute is designed to guard the customer’s as well as the third party’s safety.
*866A statute prohibiting the defendant’s conduct does not ipso facto generate a rule of civil liability. A criminal prohibition becomes a rule of civil liability only because the courts under common law principles accept it as a controlling standard. (Alber v. Owens (1967) 66 Cal.2d 790, 798-799 [59 Cal.Rptr. 117, 427 P.2d 781]; Clinkscales v. Carver (1943) 22 Cal.2d 72, 75 [136 P.2d 777].) As in Vesely, the prime question is whether the defendant owes a duty of care to the injured person. The existence of •a criminal statute-punishing the. defendant’s conduct is but one element in the perception of a duty.
My colleagues of the majority indulge in a subjective and idiosyncratic approach to the duty problem. First they place the concededly intoxicated plaintiff on their personal moral scales, find him wanting and pronounce him guilty of willful misconduct on the face of the pleadings and as a matter of law. Having pushed him beyond the pale of judicial solicitude, they indulge in a seeming rationalization which culminates in the negation of duty. Evolution of the comparative fault doctrine has not reached the point where a plaintiff, guilty of willful misconduct, may recover part of his loss from a merely negligent defendant. (Li v. Yellow Cab Co., supra, 13 Cal.3d at pp. 825-826.) Once the majority find the patron guilty of willful misconduct, their duty rationalization is a superfluity. In terms of result, the majority punish the drunken customer and reward the law-breaking liquor seller by immunizing the latter from sharing in the loss. Disavowing judicial paternalism, they explicitly withhold it from the customer and silently extend it to the tavern keeper. The result is hardly an example of even-handed justice. In terms of social utility, it represents utter disadvantage.
The majority approach rests on a usurpation of the jury function. When a lawsuit turns on willful misconduct, its occurrence is essentially a question of fact, that is, an issue for the jury and not for the court. (Reuther v. Viall (1965) 62 Cal.2d 470, 475 [42 Cal.Rptr. 456, 398 P.2d 792].) Intoxication is but one of the factors a jury should consider in determining the issue of willful misconduct. (Sholar v. Barker (1962) 211 Cal.App.2d 31, 34 [27 Cal.Rptr. 451]; Fuller v. Chambers (1959) 169 Cal.App.2d 602, 605 [337 P.2d 848].) The majority cite not one decision for their ex cathedra, ex arbitrio pronouncement fastening the drunken plaintiff with willful misconduct ex proprio vigore and per se.
The error of the majority’s willful misconduct assumption is underscored by decisions which refuse to find an intoxicated plaintiff contribu*867torily negligent as a matter of law. (Emery v. Los Angeles Ry. Corp. (1943) 61 Cal.App.2d 455, 461 [143 P.2d 112]; Robinson v. Pioche, Bayerque & Co. (1855) 5 Cal. 460, 461; 65A C.J.S., Negligence, § 143, p. 174; 17 A.L.R.2d 1085, 1105-1108.)
IV
The comparative fault doctrine of Li v. Yellow Cab Co. effectively rearranges the pro and con factors affecting the formulation of a duty of care. The prospect of split liability or shared loss plays a profound and powerful role in the duty analysis.
According to current California negligence doctrine, reasonable foreseeability of harm is the initial, court-determined test of a duty of care; secondarily, a series of policy factors moves the courts to decide, as a matter of law, whether to accord protection to the particular plaintiff. (Weirum v. RKO General, Inc. (1975) 15 Cal.3d 40, 46 [123 Cal.Rptr. 468, 539 P.2d 36]; Rodriguez v. Bethlehem Steel Corp. (1974) 12 Cal.3d 382, 399 [115 Cal.Rptr. 765, 525 P.2d 669]; Dillon v. Legg (1968) 68 Cal.2d 728, 739-741 [69 Cal.Rptr. 72, 441 P.2d 912, 29 A.L.R.3d 1316].)
In Raymond v. Paradise Unified School Dist. (1963) 218 Cal.App.2d 1, 8 [31 Cal.Rptr. 847], this court sought to capsulize the array of policy considerations underlying the duty of care issue: “The social utility of the activity out of which the injury arises, compared with the risks involved in its conduct; the kind of person with whom the actor is dealing; the workability of a rule of care, especially in terms of the parties’ relative ability to adopt practical means of preventing injury; the relative ability of the parties to bear the financial burden of injury and the availability of means by which the loss may be shifted or spread; the body of statutes and judicial precedents which color the parties’ relationship; the prophylactic “effect of a rule of liability; in the case of a public agency defendant, the extent of its powers, the role imposed upon it by law and the limitations imposed upon it by budget; and finally, the moral imperatives which judges share with their fellow citizens—such are the factors which play a role in the determination of duty.” The duty factors have been grouped into moral, administrative and socio-economic categories. (Amaya v. Home Ice, Fuel & Supply Co. (1963) 59 Cal.2d 295, 309-315 [29 Cal.Rptr. 33, 379 P.2d 513], overruled on other grounds in Dillon v. Legg, supra; see generally, Green, The Duty Problem in Negligence Cases (1928) 28 Colum.L.Rev. 1014, (1929) 29 Colum.L.Rev. 255.)
*868Accidental injury is a reasonably foreseeable result of the sale of drinks to one who is already obviously intoxicated. At least, we apprehend that a jury would probably find reasonable foreseeability.1
In a compensation system based upon fault, the moral blame attached to the parties’ conduct is thrown into the balance. (Amaya v. Home Ice, Fuel & Supply Co., supra, 59 Cal.2d at p. 315; see Bauer, The Degree of Moral Fault as Affecting Defendant’s Liability (1933) 81 U.Pa.L.Rev. 586). The now-discarded contributory negligence defense did not “rest upon the idea that the defendant [was] relieved of any duty toward the plaintiff.” (Prosser on Torts (4th ed.) p. 417.) In the preliminary duty-of-care inquiry, the court could at that time focus upon the defendant’s moral responsibility. If the plaintiff too bore responsibility, the jury would likely deny recovery. Thus the plaintiff’s moral blame had little significance in the court’s investigation of the defendant’s duty. The court could examine the defendant’s responsibility for the safety of others with little regard for the plaintiff’s responsibility for the safety of self.
In cases like this—where a finding of the plaintiff’s negligence is a frequent or expected eventuality—the comparative negligence doctrine now permits the jury to reduce the plaintiff’s recovery in proportion to his responsibility. The prospect of a plaintiff’s recovery for his intoxication-caused injuries encounters expectable judicial-moral resistance. Some of the decisions conceal moral disapproval of the drunken plaintiff behind a veil of legal doctrine.2 In the past, when contributory *869negligence supplied a complete defense, appellate judges could privately satisfy their moral predilections by publicly charging the drunken plaintiff with contributory negligence “as a matter of law.” The comparative negligence rule now blocks this juridical escape route. To deliver the drunken plaintiff from responsibility for his own safety must be squarely faced as a duty-of-care factor.
In view of the majority’s subjective moral expressions, we may as well lay bare what most opinion writers conceal beneath a cloak of “reasoning” and “rules.” A moving force in the evaluation processes of the substantive common law is the court’s “innate sense of justice.”3 In assessing moral blame as a duty factor, the courts are really “giving attention to that which is no real part of the law.” (Bauer, op. cit. supra, 81 U.Pa.L.Rev. at p. 586.) Recognition of responsibility norms as the substructure of negligence liability entails identification of those norms. The generally held ethical imperatives of Western civilization are characterized by the opposition between two forces, egoism and altruism, care for self and care for others. The tension between these forces is resolved by the credo: “Do unto others as you would they would do unto you.” Although uttered in a religious context,- this credo appeals to religionists and humanists alike.4 Transported into tort law, it finds expression in a normative concept of duty which addresses simultaneous and equally forceful demands to the parties: (1) that each assume responsibility for his own safety, and (2) that each assume responsibility for the safety of others. (See Rest.2d Torts', § 463, com. b.)
Real life situations frequently forestall simultaneous fulfillment of these dual aims. Compromise and partial fulfillment are frequently in order. The comparative negligence doctrine places the moral forces in approximate equilibrium by abrogating the traditional rule of contributory negligence, which penalized the guilty plaintiff and immunized the guilty defendant.5 Comparative negligence recognizes that the plaintiff may be irresponsible; that this irresponsibility will not allow the *870irresponsible defendant to get off scot-free. As in any comparative fault situation, approximate equilibrium is attainable here by forcing the irresponsible plaintiff and the law-breaking defendant to share the former’s loss. Each loses and neither wins.
The equilibrium is shattered by a duty formulation which excoriates the plaintiff for lack of self-responsibility, insulates the defendant from responsibility for others and turns in disgust from the whole messy business. To assign the plaintiff’s culpability as a reason for rejecting the defendant’s duty obstructs the new concept of shared responsibility. When both parties bear moral blame, negation of a duty of care toward the culpable plaintiff only exonerates the culpable defendant.
V
The intoxicated plaintiff’s ability to limit his own consumption does not necessarily exclude him as the beneficiary of a duty of care. The comparative negligence doctrine described in Li v. Yellow Cab Co. envisions negligent plaintiffs who may recover a share of their loss. A plaintiff’s ability to guard his own safety does not foreclose imposition of a duty upon the defendant. If it did, there would be no occasion for the comparative negligence rule.
The customer may be an occasional or recreational drinker with initial control over his own consumption, a problem drinker with impaired control or a compulsive drinker with no control. His ability to prevent injury by limiting his drinking should not be obscured by assigning his plight to the “disease” of alcoholism.6 Only when he reaches the stage of visible intoxication does the defendant’s continued sale of drinks offend the statutory prohibition. (See infra.) Whatever his original ability to control his drinking, the bar patron who has reached that stage has sharply diminished ability to prevent harm.
*871Balanced against the intoxicated customer’s blameworthiness is the moral blame attaching to the tavern keeper or his employee. The liquor business is “attended with danger to the community,” thus subject to close regulation by the state. (Crowley v. Christensen (1890) 137 U.S. 86, 91 [34 L.Ed. 620, 623-624, 11 S.Ct. 13]; Sandelin v. Collins (1934) 1 Cal.2d 147, 153 [33 P.2d 1009, 93 A.L.R. 956].) The Alcoholic Beverage Control Act declares a purpose to protect the welfare and safety of the people of the state; declares also, that its provisions involve in the highest degree the people’s economic, social and moral well-being and safety. (Bus. & Prof. Code, § 23001.)
In section 25602 the Legislature indulges in its own normative judgment, expressing disapproval of the liquor retailer who profits by selling drinks to his obviously intoxicated customer. The syndrome is all too familiar—the customer staggers from the tavern, endangering himself and threatening the safety of others. Startling statistics demonstrate the potential of tragedy posed by the drinker who drives his automobile from the tavern, weaving toward his next destination.7 Viewed as a duty-of-care factor, the prohibitory statute expresses the obverse of the responsibility ethic—responsibility for the safety of others. Denying recovery to the irresponsible customer shields the irresponsible liquor seller. Unless one cares to indulge in the sterilities of comparative disapprobation, the moral pros and cons are at a dead heat.
The administrative facet of the duty inquiry denotes several kindred elements—the need to place relational boundaries on extensions of tort liability and the effectiveness of fact-finding tribunals in deciding cases of the kind at hand. (Amaya v. Home Ice, Fuel & Supply Co., supra, 59 Cal.2d at pp. 310-313.) As the Palsgraf decision8 teaches, foreseeability is itself an inhibition on the spread of liability. Yet there are foreseeable risks for which the law, apprehensive of undue extensions, permits no recovery. (See, for example, Adams v. Southern Pac. Transportation Co. (1975) 50 Cal.App.3d 37 [123 Cal.Rptr. 216].) In this case the extension problem is simple. In Vesely v. Sager, supra, the court extended the duty of care to a victim of the statutory violation. Here there is privity between the tavern keeper and the future plaintiff, a direct physical and economic nexus between the defendant’s injury-producing conduct and the plaintiff’s injury-producing intoxication.
*872The problems of courtroom proof and jury efficacy may be scrutinized simultaneously with the socio-economic phase of the duty congeries—the workability of a rule of care, especially in the terms of the parties’ relative ability to adopt practical means of preventing injury. The proposed standard of care is that supplied by Business and Professions Code section 25602. The statute’s appropriateness as a standard of care, the kind of proof aimed to show compliance or breach, the jury’s efficacy in finding compliance or breach—these can be measured only by examining the statute as a practicably expedient rule of conduct.
VI
The statutory phrase obviously intoxicated assumes pivotal significance to the liquor seller who seeks to comply with the law. A drinker passes by somewhat imperceptible degrees from sobriety to mild tipsiness to recognizable inebriety. Short of blatant displays, diagnosis through visual observation is difficult and uncertain. The drinking establishment may be crowded, its employees too busy to scrutinize individual customers. Refusal of service early in the patron’s revels poses a delicate problem of customer relations.
Vesely v. Sager establishes a rule of liability for negligence or fault, not a rule of strict liability or status liability. Three decades ago section 25602 was so construed as to make it a practicably expedient standard of conduct on the part of a liquor dispenser who wishes to comply with the law. It does not require the seller to test his customer’s sobriety or to check his progress from sobriety to inebriety. The statute is aroused only when the customer is obviously, that is, visibly of manifestly, intoxicated; if the customer is visibly or manifestly intoxicated and the seller continues to serve him, the seller has violated the law, either because he failed to observe what was easily seen by others or because, having observed, he ignored that which was apparent. (People v. Johnson (1947) 81 Cal.App.2d Supp. 973, 975-976 [185 P.2d 105]; see also People v. Smith (1949) 94 Cal.App.2d Supp. 975 [210 P.2d 98].)
Thus, for the past three decades, section 25602 has stood as a practicable rule of conduct for law-abiding liquor retailers. Applied in jury instructions conforming to its long-established interpretation, section 25602 does not make the liquor seller an insurer of his patrons’ sobriety or safety; neither does it demand extraordinary vigilance. Workable as a criminal and regulatory measure, it is also workable as a civil rule of care.
*873A false issue is created by postulating jury inability to decide which drink pushed the customer “over the line” of obvious intoxication. The bar patron’s faculties may be substantially impaired well in advance of that state. He may injure himself or another in a preliminary condition of alcohol-induced impairment short of visible intoxication. Under those circumstances no comparison of each party’s ability to prevent harm is needed because section 25602 is not yet activated. When the customer has in fact reached the stage of obvious intoxication, as found by a jury, he has diminished ability to exercise self-protective care.
When section 25602, as interpreted in People v. Johnson, is scrutinized as a presumptive rule of care, the factors of proof, of jury instructions and jury capability are manageable and clear-cut. Juries are frequently called upon to determine a party’s state of sobriety, particularly in “driving under the influence” cases. (Veh. Code, §§ 23101, 23102.) In a civil damage trial the courtroom problems are no more difficult and the decisional questions no less explicit. In sum, the “workability” factors gravitate toward a declaration of duty.
VII
The social utility (“prophylactic effect”) of potential liability is a factor in the duty-of-care discernment. In California approximately 11,000 licensed establishments dispense hard liquor for consumption on the premises; a similar number sell hard liquor by the bottle; over 14,000 retail on-sale and off-sale licensees are located in Los Angeles County alone.9 Available law enforcement and Alcoholic Beverage Control personnel can supply only sporadic policing at best.10 Sustained, effective control of these myriad establishments through criminal and licensing sanctions is virtually impossible. An absentee tavern keeper may reap profit from his bartender’s chronic disregard of the statute, shielding himself from criminal liability by claims of ignorance and nonparticipation. As a criminal and licensing sanction, section 25602 is ineffectual to stem the tide of drink-caused traffic carnage. In a civil damage action the tavern operator’s responsibility for the bartender’s breach would stimulate the operator to energetic policing of his own *874establishment. Damage eligibility, extended to all within the protective scope of section 25602, would supply a silent, steadfast deterrent to the statute’s violation.
Beyond any doubt, the duty of care advocated by this dissenting opinion would have a profound and sobering effect upon California bars and taverns. It would diminish the carefree flow of drinks to drunken patrons, compel dispensers' to refuse them service and dry up illicit revenues in those establishments which habitually ignore the law. The prime policy issue lies in a choice between a relatively free-wheeling liquor trade and a reduction in the rate of alcohol-induced injuries and deaths. The social utility of a duty of care strongly urges the duty’s affirmation.
As to the parties’ relative ability to bear the financial burden of injury and the availability of means to shift or spread the loss, the problem bears the general features of enterprise negligence liability as these are shaped by the new rule of comparative negligence. Ongoing experience in this area of liability would provide a basis.for computing liability insurance premiums as one of the expenses of the retail liquor trade. Because of the frequency of contributory negligence, recovery and settlement averages would be low in comparison to other varieties of enterprise damage payments.11
VIII
The coloration lent by the body of American decisional law is diluted by a number of state “dramshop acts” fixing the character and extent of *875the liquor seller’s civil liability. (See Annots. 64 A.L.R.2d 705, 65 A.L.R.2d 923.) The Vesely opinion (5 Cal.3d at pp. 161-162) lists a number of jurisdictions which, by decisional development, have nullified the common law rule of nonliability to third-party plaintiffs. A few states have manifested a disposition to adhere to the common law rule in its entirety. (See 54 A.L.R.2d 1152.) Other courts have recognized a statute or administrative regulation prohibiting liquor sales to a “visibly intoxicated” person as the source of a duty which makes the tavern keeper civilly liable to the injured patron himself. (Galvin v. Jennings (3d Cir. 1961) 289 F.2d 15 (applying New Jersey law); Ramsey v. Anctil (1965) 106 N.H. 375 [211 A.2d 900]; Soronen v. Olde Milford Inn. Inc. (1966) 46 N.J. 582 [218 A.2d 630]; Majors v. Brodhead Hotel (1965) 416 Pa. 265 [205 A.2d 873]; see also, Vance v. United States (D. Alaska, 1973) 355 F.Supp. 756 (based upon Alaska statute).
A collateral problem should be attacked. Among the states recognizing the liquor seller’s common law liability to the visibly intoxicated patron, two, New Jersey and Pennsylvania, hold that contributory negligence is not a defense.12 In those states the liquor seller bears the entire loss caused by his violation of the liquor sales restriction; the customer bears none. These decisions are grounded upon a rule withholding the,defense of contributory negligence where the defendant’s negligence consists of violation of a statute adopted to protect a class of persons against their own inability to protect themselves. A parallel rule has been followed in a California child labor case. (Boyles v. Hamilton (1965) 235 Cal.App.2d 492, 496-498 [45 Cal.Rptr. 399]; see Rest.2d Torts, § 483, com. c.)
Whether contributory negligence is available to defeat or diminish recovery for a statutory violation depends upon the statute’s purpose. If the statute is designed merely to establish a standard of ordinary care for the plaintiff’s protection against a risk, the plaintiff’s contributory negligence may be asserted; if the statute is designed to protect persons in a state of personal helplessness, it may not. (Alter v. Owens, supra, 66 Cal.2d at pp. 797-798; Boyles v. Hamilton, supra, 235 Cal.App.2d at pp. 496-497; 4 Witkin, Summary of Cal. Law, Torts, § 687, pp. 2973-2974; Prosser on Torts (4th ed.) pp. 425-426; see Haft v. Lone Palm Hotel (1970) 3 Cal.3d 756, 770, fn. 14 [91 Cal.Rptr. 745, 478 P.2d 465].) Child labor laws exemplify the latter kind of statute. (Boyles v. Hamilton, supra.)
*876Exclusion of the contributory negligence defense is not compatible with the analysis culminating in an affirmation of duty. It profoundly disturbs the array of policy factors. Here, their analysis has been significantly influenced by the new California comparative negligence doctrine. That doctrine permits liquor buyer and liquor seller to bear damages proportioned to the share of fault imputed to each by the jury. The proportioned damage rule here serves two policy objectives, each supporting an affirmation of duty. Consistently with the principle that every person should pay reasonable regard to his own safety,13 it permits the jury to impose part of the loss on the intoxicated customer. Simultaneously, it provides a practical deterrent to the seller’s violation of the Alcoholic Beverage Control Act. The division of damages establishes an equilibrium of responsibility. To exempt the customer from a share of the loss destroys the equilibrium of responsibility.
The rule which removes the contributory negligence defense from certain statutory violation cases was born in an environment which featured contributory negligence as a complete defense. The new comparative negligence doctrine may ultimately demand its reexamination. A presumption of negligence plus unavailability of contributory negligence would accomplish the virtual equivalent of strict or status liability. (See Mula v. Meyer (1955) 132 Cal.App.2d 279, 284 [282 P.2d 107].) The tavern keeper’s negligence, fault, was the gravamen of Vesely v. Sager. Here we need do no more than enlarge the area of duty which Vesely recognized as the springboard of negligence liability.
The plaintiff's immunization from contributory negligence is not necessary to achieve the objective of Business and Professions Code section 25602. The liquor customer usually commences his progress toward injury in a state of sobriety. In the trial of the case the plaintiff’s attorney seeks to prove the defendant’s violation of duty by portraying his client’s drift into the statutory condition of obvious intoxication. The more effective his portrayal, the greater his client’s exposure to a finding of contributory negligence. It is difficult to imagine a case in which the jury would not be able to draw an inference of contributory negligence from the plaintiff’s getting drunk, regardless of his conduct after he became drunk. In the early stage of his progression toward obvious intoxication, the plaintiff is not bereft of the ability to exercise self-protective care. At that stage he is outside the statute’s protective *877scope. Thus the statute does not call for the exclusion of contributory negligence.
In my view, the analysis and balance of policy factors calls for an affirmative declaration of the defendants’ duty of care. I would reverse the judgment and direct the trial court to overrule the general demurrer of defendants Kauffman.
A petition for a rehearing was denied May 17, 1976, and appellant’s petition for a hearing by the Supreme Court was denied June 24, 1976.
An inquiry into duty of care frequently poses questions paralleling those ultimately presented to the jury. (2 Harper & James, Law of Torts, § 18.8, pp. 1059-1061.) In Wright v. Arcade School Dist. (1964) 230 Cal.App.2d 272, 277 [40 Cal.Rptr. 812], we suggested that foreseeability, even as a duty factor, was a question of fact, i.e., one for decision by the jury. The suggestion was based on a passage in Richards v. Stanley (1954) 43 Cal.2d 60, 66 [271 P.2d 23], This phase of the Wright opinion was recently cited with approval in Weirum v. RKO General, Inc., supra, 15 Cal.3d at page 46. Nevertheless, other Supreme Court decisions have made it apparent that foreseeability, as a duty factor, is a question for court, not jury, determination. (Dillon v. Legg, supra, 68 Cal.2d at p. 741; Amaya v. Home Ice, Fuel & Supply Co., supra, 59 Cal.2d at p. 308.) Synthesis of these viewpoints lies in recognition that the court makes a preliminary determination of foreseeability for the purpose of the duty inquiry, for example, on demurrer. In the trial stage, foreseeability becomes a jury question as an ingredient in the ultimate determination of negligence. .
My colleagues of the majority dispense with the veil. I respectfully suggest that they misapprehend the moral factor in duty analysis. That factor is not compounded of subjective scorn or praise. The judges should reduce personal coloration to an irreducible minimum. Liability for fault does not bend with the visceral leanings of appellate judges; it interweaves with the generally held ethical expectations of western civilization.
Rodriguez v. Bethlehem Steel Corp., supra. 12 Cal.3d at p. 393. The role of “justice” or “morality" in the evolution of decisional law was initially described in Justice Cardozo’s seminal Nature of the Judicial Process (1921). One noted commentator on the appellate process describes it as “situation-sense.” (Llewellyn, The Common Law Tradition: Deciding Appeals (1960) pp. 59-61.) See also. Ames, Law and Morals, reprinted in Jurisprudence in Action (1953) page 1.
See ethics, altruism, egoism, utilitarianism (Encyclopedia Britannica (1972)).
Thus the Li v. Yellow Cab Co. opinion describes the “inequitable” operation of the former contributory negligence defense, which “fails to distribute responsibility in proportion to fault” and “remains irresistible to all reason and all intelligent notions of *870fairness” (13 Cal.3d at pp. 810-811.) It states that “fundamental justice" counsels against retention of the old doctrine (iii., at pp. 812-813.) Frank expressions of this sort bespeak the moral underpinnings of the new doctrine.
This case does not involve that part of section 25602 prohibiting liquor sale to an “habitual or common drunkard" but only the prohibition against sale to an obviously intoxicated person. The inquiry does not entail entry into the ongoing debate aroused by proposals to dilute the legal responsibility of alcoholics by classifying alcoholism as a disease. In Powell v. Texas (1968) 392 U.S. 514 [20 L.Ed.2d 1254. 88 S.Ct. 2145], only a minority of the federal Supreme Court recognized alcoholism as a disease. (Sec Jacobs v. California Unemployment Ins. Appeals Bel. (1972) 25 Cal.App.3d 1035 [102 Cal.Rptr. 364].) In a negligence action against the tavern keeper, there should be no implication that proof of the plaintiff's alcoholism bars a finding of contributory negligence. At this juncture, we evaluate the plaintiff's ability to prevent injury only as a duty factor, not as a means of measuring his fault.
A recent California statistical compilation declares; “Over 40% of all fatal accidents and 17.6% of all injury accidents showed the party causing the accident . . . had been drinking." (1974 Annual Report of Fatal and Injury Motor Vehicle Accidents. California Highway Patrol, p. 57.)
Palsgraf v. Long Island R. Co. (1928)248 N.Y. 339 [162 N.E. 99.59 A.L.R. 1253],
California Department of Alcoholic Beverage Control, Alcoholic Beverage Licenses as of April 1, 1975.
Department of Alcoholic Beverage Control records, of which we take judicial notice, reveal the filing of 333 accusations for violation of section 25602 during the calendar year 1974 and 249 during 1975. These figures create the inference that inspection personnel and facilities are not able to cope with the probable rate of violation.
Recent newspaper accounts declare that liability insurance carriers are imposing vastly increased premium rates on California tavern owners as a consequence of the third-party claims emanating from Vesely v. Sager. The same accounts reveal fears that some tavern owners may be forced out of business; alternatively, that the price of drinks must be raised. Liability to injured customers as well as third persons would add to the reported economic burden. If the reported premium increases are based upon actual loss experience, that fact reveals widespread and lamentable violations of section 25602/ If the increases are not based upon loss experience, they are indicative of a need for inquiry into the rate-fixing practices of the insurance industry. The past years have witnessed the expansion and extension of tort liability doctrines without corresponding attention to the reparations system. Commerce and industry have experienced increased liability insurance costs, which are ultimately borne by the consuming public. As the current medical malpractice predicament illustrates, insurance cost increases, justified or unjustified, ultimately result in politico-economic pressures which arouse legislative attention. The rate-fixing practices of the insurance industry, not ongoing social need, finally generate some legislative renovations. Judicial development of new or extended liability doctrines thus triggers forces far beyond judicial control. The courts must fit decisional law to changing times as best they may. leaving the executive and legislative branches to protect the business community and the public against unwarranted financial burdens.
Soronen v. Olde Milford Inn, Inc., supra, 218 A.2d at pp. 634-636: Majors v. Brodhead Hotel, supra, 205 A.2d at p. 876. A third state. New Hampshire, holds a tavern keeper liable but permits him to assert the intoxicated customer’s contributory negligence as a defense. (Ramsey v. Anctil, supra, 211 A.2d at pp. 901-902.)
Restatement Second, Torts, section 463, comment b; 4 Witkin, Summary of California Law, Torts, section 684, page 2969.