(dissenting.)
I respectfully dissent for two reasons.
First, I maintain that social policy suggested by state law shows concern for intoxicated adults as greatly as for intoxicated minors. While the law is sensitive to dangers connected with intoxication of minors, and supports a special responsibility of adults to control occurrences of drinking by minors, I do not find in the law any cause for preferential respect for that policy as against the policy to discourage the selling or giving of liquor to an intoxicated adult.
Many of the observations which favor the liability of hosts for minors apply as convincingly to hosts for intoxicated adults. This is true, for example, regarding observations about 1977 legislative debates. The debate focused on the Civil Damages Act and not on common-law liability. This is significant as to prospective liability for hosts of minors, but equally significant as to prospective liability for hosts of intoxicated adults. Likewise, it may be important that Minn.Stat. § 340.73(3) (1982) says a sale occurs when liquor is furnished “in any way.” Illegal giving of liquor is deemed an illegal sale of liquor. This is true for liquor given to a minor, but also for liquor given to an intoxicated adult.
Second, based on the observations which follow, I conclude that an analysis of Cole v. City of Spring Lake Park, 314 N.W.2d 836 (Minn.1982), does not permit the anomaly of liability for some categories of social hosts but not for others. Commenting on the 1977 amendment of the Civil Damages Act, Minn.Stat. § 340.95 (1980) (Dram Shop Act), the court in Cole said:
The legislature has been anything but silent; the specific removal of the word ‘giving’ is legislative activity which we interpret here as intent to preempt a Civil Damages Act or common-law remedy against social hosts. There was, as the legislature knew, no right of action at common-law against social hosts in this jurisdiction, only the statutory cause of action under the Dram Shop Act, which was eliminated with the word ‘giving.’ (emphasis added)
1. In a footnote to the opinion, the court discussed foreign state decisions which distinguish between drinking adults and drinking minors. 314 N.W.2d at 839, n. 2. The note ended with this comment:
The cases under consideration by this court do not involve a minor or the statute in regard to minors.
This observation may explain an argument that the case has no effect on the prospect for common-law liability founded on a violation of Minn.Stat. § 340.73(1) (1982), which declares the illegality of furnishing liquor to minors. The argument is not convincing.
An understanding of the Cole decision requires recognition that Dram Shop liability attaches for those who “illegally” distribute liquor. Minn.Stat. § 340.95 (1982). The illegality of furnishing liqúor must be established under other provisions of Chapter 340. Hollerich v. City of Good Thunder, 340 N.W.2d 665 (Minn.1983).
The facts in Cole involved illegal furnishing of liquor to an intoxicated guest. Minn.Stat. § 340.73(1), which deals with distributions to minors, is also the statutory basis for determining the illegality of furnishing liquor to an obviously intoxicated person. Similarly, Minn.Stat. § 340.-14(la) (1982), deals both with sales to minors and sales to obviously intoxicated persons.
Hence, Cole has an important effect in shaping our understanding of prospective liability for violations of Minn.Stat. § 340.-73(1).
*542. As noted above, the Cole decision dealt with illegal acts under § 340.73. That statute does not specially deal with intoxicated adults. Rather, the statute deals with furnishing liquor to an intoxicated person, young or old.
3. In Cole, the Supreme Court distinguished two cases in which it had recognized common-law actions. Both cases involved vendors. One of those vendor cases, Trail v. Christian, 298 Minn. 101, 213 N.W.2d 618 (1973), involved sale to a minor, explaining these words in Cole:
In the instant cases we have neither a vendor, a minor, 3.2 beer (not included in the Civil Damages Act at the time of Trail), nor an out-of-state vendor (the basis for common-law liability in Blamey v. Brown, 270 N.W.2d 884 (Minn.1978)).
Id. 314 N.W.2d at 840.
As the court then noted, the Trail opinion was expressly limited to common-law liability of commercial vendors, and as to sales of liquor “to minors or those already intoxicated.” The distinction appears to focus on vendors, not guests who are minors.
4. As stated earlier, it was decided in the Cole case that 1977 legislative action preempted social host liability. The Supreme Court observed in its opinion that the legislation was designed to end liability recognized in Ross v. Ross, 294 Minn. 115, 200 N.W.2d 149 (1972). It is significant that the Ross decision dealt with Civil Damages Act liability for the social host of a minor. That social host situation was at the core of legislative and judicial action culminating in the Cole decision.
5. Citing Walker v. Kennedy, 338 N.W.2d 254 (Minn.1983), the majority notes that the Minnesota Supreme Court acknowledges that some social hosts could be held liable in a common-law negligence action founded on one form of violation of Minn.Stat. § 340.73 (1982), the furnishing of liquor to a minor. In fact, the majority of the court does not address the question whether the Cole decision would permit such a result, and four concurring justices say it would not.
In summary, two questions are prompted by the majority decision. The first is a policy question as to whether the court should recognize protected and nonprotect-ed categories of social hosts. I believe it should not. The second is an analytical question as to whether that result is permitted in light of a careful study of the Cole decision. I believe that it is not.
I would affirm the District Court, Yellow Medicine County, and furnish compatible answers to the questions certified by the District Court, St. Louis County.