(dissenting) — This case is about fault, not duty. The majority interprets a commercial vendor’s duty in this case to vary by the identity of victim: innocent third parties and minors can sue for a bartender’s negligent overservice of alcohol, but an injured first party cannot. Underlying the majority’s opinion is the tacit premise that an injured patron is wholly at fault and does not deserve to recover damages. Because a jury, not this court, should decide the comparative fault of the bartender and injured patron, I respectfully dissent. The majority stakes its opinion on a battle already lost; namely, that the common law does not permit suits against commercial vendors of alcohol. Citing Halvorson v. Birchfield Boiler, Inc., 76 Wn.2d 759, 458 P.2d 897 (1969), the majority concludes it is not a tort to serve alcohol to an able-bodied person. The majority then concedes two exceptions to the common-law rule: liability for serving alcohol to minors and liability to innocent third parties "for serving an obviously intoxicated adult”. Majority, at 37.
What the majority omits are the actual exceptions this court has established.
In Halvorson, we recognized and adopted the general common law rule of nonliability for furnishing intoxicants to an able-bodied person, while simultaneously recognizing the exceptions to the rule for obviously intoxicated persons, persons in a state of helplessness, or persons in a special relationship to the furnisher of intoxicants.
Wilson v. Steinbach, 98 Wn.2d 434, 438, 656 P.2d 1030 (1982) ; accord Burkhart v. Harrod, 110 Wn.2d 381, 383, 755 P.2d 759 (1988); Purchase v. Meyer, 108 Wn.2d 220, 225, 737 P.2d 661 (1987); Dickinson v. Edwards, 105 Wn.2d 457, 461, 716 P.2d 814 (1986); Young v. Caravan Corp., 99 Wn.2d 655, 658, 663 P.2d 834, modified, 672 P.2d 1267 (1983) ; Shelby v. Keck, 85 Wn.2d 911, 916, 541 P.2d 365 (1975).
Knowledge of a patron’s obvious intoxication obligates the bartender to cut the patron off. "Under the common law of this state, a commercial purveyor of alcoholic bever*44ages owes a duty not to furnish intoxicating liquor to a person who is obviously intoxicated”. Christen v. Lee, 113 Wn.2d 479, 488, 780 P.2d 1307 (1989); Purchase, 108 Wn.2d at 225 ("commercial purveyor of alcoholic beverages may be held liable for damages caused by furnishing intoxicating beverages to an 'obviously intoxicated’ person”). Under this duty, minors and injured third parties may sue the negligent bartender for damages. See Young, 99 Wn.2d at 658 (minors); Purchase, 108 Wn.2d at 228 (third parties injured by intoxicated minors); Dickinson, 105 Wn.2d at 461 (third parties injured by intoxicated adults).
The obvious intoxication exception recognizes that an intoxicated person cannot adequately judge his or her condition and, therefore, is in no shape to decide whether to have another drink. In the language of the common law, an obviously intoxicated person is no longer able-bodied, but rather in a state of helplessness. Shelby, 85 Wn.2d at 916.
The majority now limits the scope of this duty to exclude suits by patrons. "[Tjoday’s decision recognizes that while commercial vendors have a duty to minors and innocent bystanders, no duty arises when intoxicated adults harm themselves.” Majority, at 40. The majority gives three reasons for not recognizing the bartender’s duty to the patron. None of these reasons justifies treating injured patrons differently than injured third parties.
First, the majority fears that imposing liability for an intoxicated patron’s injury would be the "final step” in dismantling the common-law rule. Majority, at 37. This assumes that the common law denied liability in all cases. It did not. The final step involved in this case is to acknowledge that a bartender’s duty not to serve the obviously intoxicated protects customers as well as minors and third parties. The duty in each case is the same; the only question is who can sue.
Second, the majority notes at page 37 that this court has refused to impose broader exceptions to the common-law rule, citing Christen, 113 Wn.2d at 494. In Christen, the *45court declined to hold a bartender liable for the unforeseen violent acts of a patron "some distance” from the bar. Christen, 113 Wn.2d at 492. The majority fails to note the court’s conclusion in Christen.
[T]he history of the duty owed by a furnisher of intoxicating liquor in this state evinces a well considered and reasoned reluctance on the part of this court, in light of the Legislature’s repeal of this state’s dramshop act, to now judicially decree common law liability in cases other than those fitting within the well-recognized exceptions to the common law rule.
(Italics mine.) Christen, 113 Wn.2d at 495. Liability for service to an obviously intoxicated patron clearly fits within the exceptions to the common-law rule.
Third, the majority declares that acknowledging a duty in this case "would usurp the Legislature’s authority to weigh who should be held accountable for alcohol-related accidents”. Majority, at 38. This argument applies with equal force to third-party claims. When it repealed the dramshop act in 1955, the Legislature not only eliminated claims by the intoxicated patron, it also abolished claims by any "person who shall be injured in person or property ... by any intoxicated person”. Laws of 1905, ch. 62, § 1, p. 120. But this court has held under the common law that injured third parties may sue the bartender for negligence. Christen, 113 Wn.2d at 495. If the majority means what it says, both Christen and Dickinson were wrongly decided.
We did not usurp the Legislature’s authority by allowing third-party claims. The repeal of the dramshop act reintroduced the common-law rule but did not grant commercial vendors absolute immunity. Christen, 113 Wn.2d at 512 (Utter, J., concurring in part, dissenting in part); Halvorson, 76 Wn.2d at 762. With the common law comes our obligation to interpret the law in each case. We fulfilled our responsibility in prior cases by defining the common law exception for obvious intoxication. Here, the majority avoids its obligation with a claim of deference to the Legislature. A commercial vendor’s duty to an *46intoxicated customer is the same, regardless of whether an injured third party or an injured customer sues.
The majority missteps when it disjoins a bartender’s duty not to overserve. Tort duties must not vary by the identity of the injured party.
[P]etitioners seek a rule which would require differing duties and render different results depending on the identity of the victim. We find this argument wholly unpersuasive. Recently, in the context of the family or household exclusion clause in automobile insurance policies, we rejected just such an attempt to justify different results based on the identity of the injured victims as violative of this state’s public policy. See Mutual of Enumclaw Ins. Co. v. Wiscomb, 97 Wn.2d 203, 209, 643 P.2d 441 (1982). Our decision in Wiscomb was premised partially on the realization that exclusions based on the identity of the injured party permit such distinctions to divert attention from the real issue of the conduct of the driver— the party who is or may be negligent. Wiscomb, at 209. We discern no better reason under these circumstances to reach a different result based on the identity of the injured party, whether it be the guest herself or a third party injured by the guest.
Wilson, 98 Wn.2d at 439-40.
The majority claims the applicability of Wilson to commercial vendors is "dubious”. Majority, at 40. The court in Wilson spoke directly to the error of varying any tort duty by the identity of the victim. The majority also claims that the purpose of the duty on commercial vendors is to protect innocent bystanders and minors. On this point, the majority ignores what we have said before.
The postdramshop act cases of this court addressing the duty not to furnish intoxicating liquor to an obviously intoxicated person commonly involve automobile accidents. In such cases, the plaintiff seeks recovery directly from the one who furnished intoxicating liquor to the person causing the accident. It follows that the general type of harm encompassed by this duty is that of alcohol-induced driver error. Driver error is a commonly understood and foreseeable consequence of serving intoxicants to an already obviously intoxicated person.
(Footnotes omitted.) Christen, 113 Wn.2d at 495-96. The *47purpose of the obvious intoxication exception is to prevent accidents by drunk drivers.
Foreseeability, rather than the identity of the injured party, limits the scope of the commercial vendor’s duty. In Christen, we ruled that
"the harm sustained must be reasonably perceived as being within the general field of danger covered by the specific duty owed by the defendant.” Maltman v. Sauer, 84 Wn.2d 975, 981, 530 P.2d 254 (1975). The limitation imposed thereby is important because, as this court has previously observed, "a negligent act should have some end to its legal consequences.” Hunsley v. Giard, 87 Wn.2d 424, 435, 553 P.2d 1096 (1976).
(Footnote omitted.) Christen, 113 Wn.2d at 492. A commercial vendor’s sale of alcohol to an obviously intoxicated customer is a negligent act. The foreseeability of subsequent injuries, not the status of the injured party, bounds the legal consequences of this negligence.
Here, dangerous driving was a foreseeable consequence of serving alcohol to the already obviously intoxicated patrons. Christen, 113 Wn.2d at 495-96.
The majority’s arguments for limiting the bartender’s duty have been unpersuasive in the past and are unpersuasive now. The arguments are cover for the unstated premise of the majority’s decision: intoxicated patrons are wholly at fault for their injuries and should never recover damages.
The structure of the majority’s opinion points to this hidden premise. Using moralistic phrases like "self-inflicted”, "absolve”, and "callow and imprudent behavior”, the majority casts blame on the intoxicated patron. This majority is arguing about fault, about who is to blame for the injuries.
Absent from the majority’s arguments is any discussion of the bartender’s responsibilities. The obvious intoxication exception recognizes a simple truth: once a person is intoxicated, and the bartender knows it, the bartender, not the patron, makes the decision of whether the patron has *48another drink. This responsibility comes with the business.
Specific arguments by the majority also reveal the underlying premise of fault. To distinguish third parties from patrons, the majority announces: "[a]s a matter of public policy, we have premised the duty of commercial vendors on the need to protect innocent bystanders from intoxicated patrons”. Majority, at 40-41 (citing Christen, 113 Wn.2d at 497). According to the majority, it is the injured third party’s innocence, his or her complete lack of fault, which justifies recovery.
The majority, not precedent, imposes this requirement of innocence. Under Washington law, an injured third party need not be innocent to recover damages from a bartender for overservice. Instead, the Legislature has directed triers of fact to weigh the comparative fault of responsible parties.
In all actions involving fault of more than one entity, the trier of fact shall determine the percentage of the total fault which is attributable to every entity which caused the claimant’s damages ...[.]
RCW 4.22.070(1). We would not deny the existence of a duty to a third party if that third party shared some fault for his or her injuries. The innocence of the third party is relevant to fault, not duty.
The same principle applies to first-party claims. A customer’s responsibility for his own drunkenness is an issue of fault. If a customer were at fault for his injuries, as the Family Tavern’s lawyer contended at trial, the jury would consider this in reaching a verdict.
The Legislature has also limited a patron’s right to recover for intoxication. Under RCW 5.40.060(1),
it is a complete defense to an action for damages for personal injury or wrongful death that the person injured or killed was under the influence of intoxicating liquor or any drug at the time of the occurrence causing the injury or death and that such condition was a proximate cause of the injury or *49death and the trier of fact finds such person to have been more than fifty percent at fault.
When the intoxicated party is at fault for a majority of his or her injuries, the Legislature has determined that the intoxicated party is responsible for the entire amount of damages. An intoxicated customer who is more than 50 percent at fault for his or her injuries would therefore not recover damages from a commercial vendor.
The jury in Kelly’s case reached an appropriate verdict under these two rules. The court instructed the jury correctly on comparative fault and the 50 percent rule, and the parties argued their cases. Plaintiff’s counsel acknowledged the dual responsibility of Kelly and the Family Tavern; Defendant’s counsel argued that Kelly alone was responsible for his drinking and his death. After submitting a question to the judge on the 50 percent rule, the jury returned a verdict for Plaintiff and divided the fault 50-50.
The court should respect the ability of juries to determine responsibility. By adopting comparative fault, the Legislature has given juries the obligation to determine the moral responsibility of the parties in a case of negligence. A first-party claim against a commercial vendor is no different. Rather than conclude a customer has no right to sue a tavern, the court should permit a jury to determine the relative fault of tavern and customer in a case of obvious intoxication.
I would affirm the judgment of the Superior Court in Estate of Kelly v. Falin, and reverse the summary judgment of the Superior Court in Wolfram v. Lahaina Louie’s Pub & Cafe.
Johnson, J., and Utter, J. Pro Tern., concur with Guy, J.
Reconsideration denied September 7, 1995.