(dissenting in part and concurring in part).
I respectfully dissent from division I and concur in division II of the majority opinion.
I do not believe we should judicially impose liability on a “social host” even under the criteria delineated by the majority. This monumental change in Iowa’s tort law runs counter to the judgment of the General Assembly, the elected legislators of the people. It is a body much better equipped than we to consider and pass on the broad social policy questions involved. It is difficult to imagine how the legislature could have made it plainer that it has preempted the field and has chosen to make for itself the social decision present here.
An examination of the history of the Iowa dram shop statutes convinces me that the legislature has already decided against the position taken by the majority. Also, there are several other reasons for my dissent concerning division I of the majority opinion.
The district court correctly sustained the motion, filed by defendants Mincks, to dismiss the portion of the petition directed at them.
I. Originally, our common law did not recognize any right of action based on the giving or selling of intoxicating liquor. See Snyder v. Davenport, 323 N.W.2d 225, 226 (Iowa 1982). In 1862, the legislature abrogated the common-law rule by creating a statutory civil right of action against “any person” who furnished liquor illegally. See 1862 Iowa Acts 50. That statute remained in place for several decades. It did not, by its terms, limit the liability it created to only liquor licensees or permittees, and this court refused to so limit it in Williams v. Klemesrud, 197 N.W.2d 614, 616 (Iowa 1972), in which the statute (then Iowa Code section 129.2) was held to allow recovery against a person who illegally furnished liquor, even though that person was neither a licensee nor a permittee.
In 1963 the legislature passed another statute providing for civil liability of liquor *233licensees and permittees who served a person to the point of intoxication, or who served an intoxicated person. See 1963 Iowa Acts ch. 114, § 29, as amended by 1963 Iowa Acts ch. 115, § 8. (In Williams we held that the enactment of the 1963 statute Iowa Code section 123.95), which treated only the liability of licensees and permittees, did not repeal or abrogate the broader “any person” liability previously created by section 129.2.
Thus, at one time Iowa had two dram shop statutes, one providing for liability of licensees and permittees and one providing for liability of any person who illegally furnished liquor. This could include a social host.
Apparently dissatisfied with this state of affairs, the legislature in 1971 in the “Liquor and Beer Control” act expressly repealed both sections 129.2 and 123.95. See 1971 Iowa Acts ch. 131, § 152. At the same time it enacted a new dram shop statute with liability limited to licensees and permittees. See 1971 Iowa Acts ch. 131, § 92, now codified as Iowa Code § 123.92 (1985). In discussing this legislative action obviously aimed at restricting dram shop liability to licensees and permit-tees only, we said in Williams, 197 N.W.2d at 616, “it is apparent that cases such as this [i.e., attempting to impose dram shop liability on one who is neither a licensee or permittee] will not arise in the future.”
The majority unfortunately does not find this conclusion so apparent as did the Williams court. By ignoring Williams and the history of our dram shop statutes the majority manages to arrive at a result which the General Assembly no doubt thought it had in 1971 precluded: imposition of liability on a nonlicensee and non-permittee based on the illegal furnishing of intoxicants.
Rather than reach a result so patently contrary to the legislative intent on this action, the better course is to accord the General Assembly the deference owed to it on matters of social policy.
The limitation by the legislature of the parties, licensees and permittees, to be held liable for “selling or giving” intoxicants “was not mere inadvertence.” Nelson v. Restaurants of Iowa, 338 N.W.2d 881, 884 (Iowa 1983).
II. For the reasons above stated, the majority of this court was wrong in Haafke v. Mitchell, 347 N.W.2d 381, 388 (Iowa 1984), in stating that the current dram shop act did not preempt liability in this field and in allowing a common law negligence claim based on section 123.49(1) against employees of a licensee.
The dissent by Justice Harris in Haafke, 347 N.W.2d at 391-92, accurately states the principles that should have controlled the issues raised in Haafke.
This court in Haafke fashioned a negligence claim in a commercial setting against the employees of a licensee based on alleged violation of section 123.49(1), a criminal statute, for the sale of intoxicants to an intoxicated person. That negligence action should not have been allowed in view of the legislative policy choice made in 1971 which preempted this liquor area and confined liability to licensees and permittees. A remedy for a section 123.49(1) violation should have been restricted to its criminal sanction. See Iowa Code section 123.50(1).
The majority here relies upon Haafke and Lewis v. State, 256 N.W.2d 181 (Iowa 1977), to reach its result. For the reasons stated above, I believe Haafke should be overruled as contrary to the public policy of this state. Neither does Lewis provide a firm base for today’s expansion of liability to nonlicensees and nonpermittees. As we noted in Snyder v. Davenport, 323 N.W.2d at 226-27, the facts in Lewis arose when the section 129.2 “any person” dram shop statute was still in force.
III. The majority in the present case now builds on and embellishes the Haafke holding and section 123.49(1) to impose civil liability on the “social host” who negligently gives intoxicants to a person.
I agree with the New York court that stated:
Extending liability to non-sellers would open a virtual Pandora’s box to a wide range of numerous potential defendants *234when the Court does not believe that the legislature ever intended to enact a law that makes social drinking of alcoholic beverages and the giving of drinks of intoxicating liquors at social events actionable.
Edgar v. Kajet, 84 Misc.2d 100, 103, 375 N.Y.S.2d 548, 552 (Sup.Ct.1975), aff'd, 55 A.D.2d 597, 389 N.Y.S.2d 631 (1976).
The only other state that has imposed liability on the “social host” by judicial decision that has not been abrogated is New Jersey. This occurred in Kelly v. Gwinnett, 96 N.J. 538, 476 A.2d 1219 (1984), a four-to-three decision. Even that case is readily distinguishable because New Jersey has no dram shop act. Therefore, the Kelly court implied that the absence of a dram shop statute, with its specific definitions of liability and who is liable, gave the court more freedom to consider important public policy issues in reaching its decision.
We do not have such freedom here because the legislature made its clear policy decision in 1971 and we should abide by it. We should not impose liability on the dram shop “social host” (“any person”) after the legislature chose not to do so.
IV. The other decision wherein an appellate court imposed liability on a “social host” is Coulter v. Superior Court of San Mateo County, 21 Cal.3d 144, 145 Cal.Rptr. 534, 577 P.2d 669 (1978). However, the California legislature abrogated that decision five months later. See Cartwright v. Hyatt Corp., 460 F.Supp. 80, 81 n. 5 (D.D. C.1978).
The California legislation clearly outlines the rights of third parties concerning social hosts and vendors who serve intoxicants. California Civil Code section 1714(b) (West Supp.1985) provides that the consumption of alcoholic beverages, rather than the furnishing of same, is the proximate cause of injuries inflicted upon another by an intoxicated person. Section 1714(c) provides social hosts will not be liable to either their guests or to those who are injured by their guests for serving alcoholic beverages. Other relevant provisions are California Business and Professions Code §§ 25602(a) and (b) and 25602.1 (West Supp.1985).
V. Finally, the allowance of a claim here against a social host in the context of the intoxicated person who drives a motor vehicle will open the door for a plethora of claims in other fields by analogy to the present decision. It would be no great leap from the majority's holding to make the social host civilly responsible for the injury done by his or her intoxicated guest in assaults, sexual abuse, or other criminal acts that might occur after the guest has left the hospitality of the social host. Such a result is easily reached even though the majority has attempted to tighten its criteria for liability of the social host as much as possible.
The better choice, which the majority refuses to take, is to simply acknowledge the court was wrong in Haafke and, therefore, refuse to judicially impose liability on the social host when the legislature chose not to do so.
For the several reasons above stated, I would affirm the district court’s sustention of the motion to dismiss by. defendants Mincks. I agree with the majority that the district court should have sustained Bogle’s motion for summary judgment against plaintiffs.
HARRIS, CARTER and WOLLE, JJ., join in this dissent in part and concurrence in part.