Opinion
THE COURT.* A tavern customer here sues a tavern keeper, alleging that the latter negligently sold him alcoholic beverages when plaintiff was obviously intoxicated, in violation of Business and Professions Code section 25602, causing his involvement in a later automobile collision with injury to himself. The trial court sustained the tavern keeper’s general demurrer without leave to amend. Plaintiff appeals from the ensuing judgment of dismissal.
[848]California courts for many years adhered to the common law rule rejecting a liquor seller’s civil liability for damages suffered by a patron or a third person injured by such patron as a result of the latter’s intoxication. In Vesely v. Sager (1971) 5 Cal.3d 153 [95 Cal.Rptr. 623, 486 P.2d 151], the California Supreme Court partially abrogated the common law rule. Limiting itself to injury claims of third persons, the court ruled that section 25602 of the Business and Professions Code, making it a misdemeanor to furnish alcoholic beverages to an obviously intoxicated person, was designed to protect members , of the general public from injury resulting from excessive use of intoxicating liquor. The Supreme' Court stated:
“To the extent that the common law rule of nonliability is based on concepts of proximate cause, we are persuaded by the reasoning of the cases that have abandoned that rule. The decisions in those jurisdictions which have abandoned the common law rule invoke principles of proximate cause similar to those established in this state by cases dealing with matters other than the furnishing of alcoholic beverages. (See Schwartz v. Helms Bakery Limited (1967) 67 Cal.2d 232 [60 Cal.Rptr. 510, 430 P.2d 68]; Stewart v. Cox (1961) 55 Cal.2d 857, 863-864 [13 Cal.Rptr. 521, 362 P.2d 345]; Richardson v. Ham (1955) 44 Cal.2d 772, 111 [285 P.2d 269]; McEvoy v. American Pool Corp, (1948) 32 Cal.2d 295, 298-299 [195 P.2d 783]; Mosley v. Arden Farms Co. (1945) 26 Cal.2d 213, 218 [157 P.2d 372, 158 A.L.R. 872]; Stasulat v. Pacific Gas & Elec. Co. (1937) 8 Cal.2d 631, 637 [67 P.2d 678]; Prosser, Proximate Cause in California (1950) 38 Cal.L.Rev. 369.) Under these principles an actor may be liable if his negligence is a substantial factor in causing an injury, and he is not relieved of liability because of the intervening act of a third person if such act was reasonably foreseeable at the time of his negligent conduct. (Stewart v. Cox, supra, 55 Cal.2d at pp. 863-864; Richardson v. Ham, supra, 44 Cal.2d at p. 777; Eads v. Marks (1952) 39 Cal.2d 807, 812 [249 P.2d 257]; Benton v. Sloss (1952) 38 Cal.2d 399, 405 [240 P.2d 575]; Mosley v. Arden Farms Co., supra, 26 Cal.2d at p. 218; Fuller v. Standard Stations, Inc. (1967) 250 Cal.App.2d 687, 691 [58 Cal.Rptr. 792]; Ewert v. Southern Cal. Gas Co. (1965) 237 Cal.App.2d 163, 169-173 [46 Cal.Rptr. 631]; Rest.2d Torts, §§ 302, 302A, 431, 447.) Moreover, ‘If the likelihood that a third person may act in a particular manner is the hazard or one of the hazards which makes the actor negligent, such an act whether innocent, negligent, intentionally tortious or criminal does not prevent the actor from being liable for harm caused thereby.’ (Rest.2d Torts, § 449; Schwartz v. Helms Bakery Limited, supra, 61 Cal.2d at pp. 241-242; [849]Richardson v. Ham, supra, 44 Cal.2d 772, at p. 777, McEvoy v. American Pool Corp., supra, 32 Cal.2d 295, at p. 299.)”
On the subject of duty of care, the Supreme Court continued:
“A duty of care, and the attendant standard of conduct required of a reasonable man, may of course be found in a legislative enactment which does not provide for civil liability. [Citations.] In this state a presumption of negligence arises from the violation of a statute which was enacted to protect a class of persons of which the plaintiff is a member against the type of harm which the plaintiff suffered as a result of the violation of the statute. (Alarid v. Vanier (1958) 50 Cal.2d 617 [327 P.2d 897]; Satterlee v. Orange Glenn School Dist. (1947) 29 Cal.2d 581 [177 P.2d 279].) The Legislature has recently codified this presumption with the adoption of Evidence Code section 669: ‘The failure of a person to exercise due care is presumed if: (1) He violated a statute, ordinance, or regulation of a public entity; (2) The violation proximately caused death or injury to person or property; (3) The death or injury resulted from an occurrence of the nature which the statute, ordinance, or regulation was designed to prevent; and (4) The person suffering the death or the injury to his person or property was one of the class of persons for whose protection the statute, ordinance, or regulation was adopted.’ (Subd. (a).)
“In the instant case a duty of care is imposed upon defendant Sager by Business and Professions Code section 25602, which 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.’ This provision was enacted as part of the Alcoholic Beverage Control Act of 1935 (Stats. 1935, ch. 330, § 62, at p. 1151) and was adopted for the purpose of protecting members of the general public from injuries to person and damage to property resulting from the excessive use of intoxicating liquor.” (Id., at pp. 163-165.)
The Vesely court further declared, “ ... we do not decide . . . whether a person who is served alcoholic beverages in violation of the statute may recover for injuries suffered as a result of that violation.” (Id., at p. 157.)
Since Vesely, three Courts of Appeal and the California Legislature have considered the question here presented. Carlisle v. Kanaywer (1972) 24 Cal.App.3d 587, 591-592 [101 Cal.Rptr. 246] (First Dist., Div. Three) and Sargent v. Goldberg (1972) 25 Cal.App.3d 940, 944 [102 Cal.Rptr. [850300]] (Second Dist., Div. Three) both rejected a claim for the patron’s own injury or death on the ground that the allegation of his intoxication showed contributory negligence as a matter of law. Cooper v. National Railroad Passenger Corp. (1975) 45 Cal.App.3d 389 [119 Cal.Rptr. 541] (Second Dist., Div. Two) reached the same result, basing it upon three grounds. That opinion, at pages 393-394, states; “First, it has been said that the drinking of alcoholic beverages and not their serving is the proximate cause of any injury that results to the drinker from his own intoxication. (Cole v. Rush, 45 Cal.2d 345, 351 [289 P.2d 450, 54 A.L.R.2d 1137]; Hitson v. Dwyer, 61 Cal.App.2d 803, 808-809 [143 P.2d 952].) Second, it is also said that even though the server is negligent and in violation of law by continuing to serve alcoholic beverages to an obviously intoxicated drinker, the drinker’s cause of action is barred by his own contributory negligence (Cole v. Rush, supra, p. 356), or, we think more precisely, by his voluntary assumption of the known and conspicuous risks incident to the consumption of alcoholic beverages in bars. (McNally v. Addis (1970) 65 Misc.2d 204 [317 N.Y.S.2d 157, 180]; see Collier v. Stamatis (1945) 63 Ariz. 285 [162 P.2d 125, 127-128].) One of these known and conspicuous risks is the possibility that the bartender will negligently fail to recognize the drinker’s obviously intoxicated condition.1” Footnote 1 provides: "1 ‘Obvious intoxication is often recognizable only after the fact, and what is patent when the drinker falls off his bar stool may have been only latent 60 seconds earlier (cf. Hitson v. Dwyer, 61 Cal.App.2d 803 [143 P.2d 952]). Visual diagnosis of intoxication has not greatly improved upon Peacock’s rough and ready classification of 1829: “Not drunk is he who from the floor, Can rise alone and still drink more; But drunk is he, who prostrate lies, Without the power to drink or rise.” ’ ” “Thus, when a drinker occupies a stool at the bar, he implicitly acknowledges the possibility that the bartender may negligently continue to serve him alcoholic beverages even though he has become intoxicated and accident-prone as a result of his condition. (See Rest.2d Torts, § 496 F.) [Fn. omitted.] Third, we note that while the bartender who serves alcoholic beverages to an obviously intoxicated patron is violating the criminal law (Bus. & Prof. Code, § 25602) the patron is likewise violating the criminal law by being drunk in a public place (Pen. Code, § 647, subd. (f)). We have here a classic instance of parties in pari delicto, or equal criminal fault, and in their relationship to one another the law normally leaves the parties in the condition it finds them.
“We think each of the foregoing expressions of law reflects the basic view of society that self-police provides the primary defense against the [851]evils of intoxication and outside police plays only a secondary role. A failure of primary policing is not excused or condoned by a failure of secondary policing, and the person with primaty responsibility has no recourse for losses against one who is only secondarily responsible. This for the reason put forth by the Supreme Court of Connecticut in Nolan v. Morelli (1967) 154 Conn. 432 [226 A.2d 383, 387]: ‘To recompense in damages an injury to an intoxicated person or his property resulting from his own overindulgence in intoxicating liquor might, quite properly, be felt by the General Assembly to encourage, rather than to discourage, such overindulgence.’ ” (Italics added.)
During the 1972 regular session of the California Legislature, Assembly Bill No. 1864 was introduced (Assemblyman Ketchum—March 15, 1972). It was in part an attempt to codify the Vesely decision (see 5 Pacific L.J. 186, 191) and to extend its purview so as to make any person licensed under the Alcoholic Beverage Control Act civilly liable to the patron where the sale is in violation of Business and Professions Code section 25602 and it is reasonably foreseeable that the consumer will drive a motor vehicle while still under the influence of alcohol. This provision of the bill was deleted by amendment on June 16, 1972, and later the remainder of the bill died in the Senate. The Legislature thus joined the three appellate courts in rejecting an extension of the rule of compensability to the drunken patron.
Such was the status of the law on the subject when in 1975 the Supreme Court decided Li v. Yellow Cab Co., 13 Cal.3d 804 [119 Cal.Rptr. 858, 532 P.2d 1226]. There the court abolished California common law doctrines which interposed contributory negligence and assumption of risk as total barriers to recovery for negligence. In their place, the court established1 comparative negligence, which diminishes a negligent plaintiff’s recovery in proportion to his own negligence. (Id., at pp. 828-829.) No longer does a complaint fail to state a cause of action because on its face it portrays a contributorily negligent plaintiff. Such a plaintiff is not vulnerable to total ouster from the courts but only to a proportionate reduction of his damage recovery.
The issue now is whether the Li case has altered the otherwise judicially and legislatively well-settled law denying a remedy to the injured drunken patron against the tavern owner. Has the plaintiff here stated a cause of action for his damages, to be diminished only in proportion to his own misconduct?
[852]I
We note that the court in Li consciously failed to extend the doctrine of comparative negligence to the area of willful misconduct. It stated, “Finally there is the problem of the treatment of willful misconduct under a system of comparative negligence. . . . The thought is that the difference between willful and wanton misconduct and ordinary negligence is one of kind rather than degree in that the former involves conduct of an entirely different order, [fn. omitted] and under this conception it might well be urged that comparative negligence concepts should have no application when one of the parties has been guilty of willful and wanton misconduct . . . . [i] The existence of the foregoing areas of difficulty and uncertainty (as well as others which we have not here mentioned—see generally Schwartz, supra, § 21.1, pp. 335-339) has not diminished our conviction that the time for a revision of the means for dealing with contributory fault in this state is long past due and that it lies within the province of this court to initiate the needed change by our decision in this case. Two of the indicated areas (i.e., multiple parties and willful misconduct) are not involved in the cases before us, and we consider it neither necessary nor wise to address ourselves to specific problems of this nature which might be expected to arise. . . .” (Italics added.) (Id., at pp. 825-826.)
Two questions present themselves. First, is the drunken patron guilty of willful misconduct rather than negligence? Second, if so, should Li be extended to add a comparative willful misconduct doctrine to comparative negligence?
We answer the first question in the affirmative.1 Nothing is more elementary than that a person normally becomes intoxicated as a result of his own volition. As pointed out in Cooper, supra, the drunken patron in reality commits a crime as he sits upon the bar stool. Before imbibing at all, he is fully aware of the debilitating effects of alcohol upon the senses, and of its total effect upon himself. He knows that if he consumes it to excess, his subsequent activities may render him a danger and a menace to himself and others, especially innocent third persons. Yet, despite this prior knowledge, he inexcusably proceeds to consume alcohol in sufficient quantities to bring about the predicted result.2 This is willful and wanton misconduct as clear as any imaginable.
[853]Let us note parenthetically that we are not here concerned with a minor (cf. Boyles v. Hamilton (1965) 235 Cal.App.2d 492 [45 Cal.Rptr. 399]), nor with an alcoholic who suffers from an irresistible and pathological urge to drink excessively. Such a person may, in fact, be physically ill and incapable of self-control, thus under certain extremely limited and extraordinary circumstances not guilty of willful misconduct. (Cf. Tate v. Canonica (1960) 180 Cal.App.2d 898 [5 Cal.Rptr. 28].) Plaintiff pleads no such condition, but boldly, almost defiantly, asserts his drunken state as voluntarily induced. (Evid. Code, §§ 665, 668.) We are concerned with an adult plaintiff who became drunk because he desired and intended that result.
The second question is more thought provoking. Heretofore and prior to Li, while contributory negligence was held not to bar a claim based upon willful misconduct, contributory willful misconduct was recognized as a complete bar thereto. (Cawog v. Rothbaum (1958) 165 Cal.App.2d 577, 591 [331 P.2d 1063]; 4 Witkin, Summary of Cal. Law (8th ed. 1974) Torts, § 688, p. 2974; Rest.2d Torts, § 482.) It does not however follow readily upon the Li decision that because we now have comparative negligence we also have comparative willful misconduct. Whether we do or not hinges upon whether a duty of care should be declared to exist in favor of the willful wrongdoer; this in turn requires formulation of public policy. As observed by the Li court, the difference between negligence and willful misconduct being one of kind, the comparative negligence concept should arguably not apply to the latter.
A threshold question is whether the obviously intoxicated customer is a member of the class protected by section 25602. According to Vesely, the statute was designed to protect “members of the general public from injuries . . . resulting from excessive use of intoxicating liquor.” (Vesely v. Sager, supra, p. 165.) This court stated in Hitson v. Dwyer (1943) 61 Cal.App.2d 803, 808 [143 P.2d 952], that the statute was not adopted to protect the obviously intoxicated customer. The language of the statute, together with the Vesely pronouncement, lead us to disapprove the Hitson dictum, as did the Supreme Court. (Vesely v. Sager, supra, p. 167.) The plaintiff here, as a customer in the defendant’s tavern, was one of the members of the general public for whose benefit section 25602 was enacted.
[854]This conclusion does not however ipso facto generate the duty which is essential for civil liability in plaintiff’s favor. 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 still whether the defendant owes a duty of care to the injured person, and the existence of a criminal statute punishing the defendant’s conduct is but one element in the perception of duty.
The existence of duty requires also a determination of reasonable foreseeability (Weirum v.RKO General, Inc. (1975) 15 Cal.3d 40, 46 [123 Cal.Rptr. 468, 539 P.2d 36]; Dillon v. Legg (1968) 68 Cal.2d 728, 739-741 [69 Cal.Rptr. 72, 441 P.2d 912, 29 A.L.R.3d 1316]), which we have no difficulty finding here. Necessarily, however, the inquiry still does not stop there, for the concept of duty is far more complex. “ ... it should be recognized that ‘duty’ is not sacrosanct in itself, but only an expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection.” (Prosser, Law of Torts (3d ed. 1964) pp. 332-333; Dillon v. Legg, supra, 68 Cal.2d at p. 734.) In Raymond v. Paradise Unified School Dist. (1963) 218 Cal.App.2d 1, 8 [31 Cal.Rptr. 847], we summarized the policy considerations underlying the duty of care: “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; . . . 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.” These factors are subsumed within the categories of (1) administrative, (2) moral, and (3) socio-economic considerations, all of which must be evaluated. (Amaya v. Home Ice, Fuel & Supply Co. (1963) 59 Cal.2d 295, 310-315 [29 Cal.Rptr. 33, 379 P.2d 513], overruled on other grounds in Dillon v. Legg, supra.) In substance and in the last analysis, the attribution of a duty to the tavern keeper here must be “ ‘inspired by natural reason and an innate sense of justice ....’” (Rodriguez v. Bethlehem Steel Corp. (1974) 12 Cal.3d 382, 393 [115 Cal.Rptr. 765, 525 P.2d 669].)
[855]Administrative considerations, while militating against the plaintiff (as they always do), do not cause us to recoil at the prospect of allowing recovery. Indeed, accepting the premise that “Justice . . . exists only when it can be effectively administered” (Amaya, supra at p. 310), we are troubled by the efficacy of a decision-making process that would allow the sought-after cause of action. In order for the cause of action to arise, the defendant must violate Business and Professions Code section 25602, that is, sell intoxicating liquor to an “obviously intoxicated person.”3 (Vesely v. Sager, supra at p. 165.) To be obviously intoxicated one must first be in fact intoxicated. By the time the tavern owner (or his agent) violates the statute, the patron has already put himself into such a state as to be dangerous to himself and others. If he is then served a single drink, following which he leaves the premises and injures himself, who is to say that the tavern owner’s statutory violation by service of the one drink contributed as a proximate cause to the injury? Or if before the injury he visits a few more taverns and consumes one drink at each of them, who is to say which of the drinks at which of the taverns was a proximate cause? The standard response is that it is a question of fact for the jury; and so it is. But the speculation to be indulged in by the fact finder, whether the violation involve a single drink or a dozen, one tavern or five, is considerable.
Disquieting as this may be, the Supreme Court has repeatedly made it clear that such considerations ought not to bring about a wholesale rejection of a right of recovery. (See the discussion in Dillon v. Legg, supra, pp. 735-739.) They did not prevent the Vesely v. Sager extension of liability. And even though it causes us to pause for reflection, the administrative factor does not cause us to deny to the drunken patron recovery for his own injuries.
The moral and socio-economic factors however lead us to the conclusion that the requisite duty of the tavern owner to the drunken patron does not exist, that the comparative negligence doctrine of Li does not apply to willful misconduct, and that the Vesely v. Sager rule does not extend to injuries to the drunken patron himself.
The inestimable gift of reason and self-control cries out for preservation in every person, and the duty of its preservation devolves upon each member of the public. When the restraint of reason and the ability to [856]care for one’s self are perverted by a conscious, self-indulgent act of voluntary intoxication which temporarily casts off those powers, no societal or personal wrong, nor violation of public or social policy is accomplished or violated if the actor is alone held answerable for his injury. “[T]he voluntary, independent, uncoerced, uninvited self-indulgence of him who knowing the difference between right and wrong and the injurious effects apt to follow” (Collier v. Stamatis (1945) 63 Ariz. 285 [162 P.2d 125, 128]) nonetheless consumes alcohol arouses no ready sympathy; and when it is repeated so as to trigger a violation of Business and Professions Code section 25602, it merits no reward.
Governmental paternalism protecting people from their own conscious folly fosters individual irresponsibility and is normally to be discouraged. (Cf. Duff v. Harrah South Shore Corp. (1975) 52 Cal.App.3d 803, 807 [125 Cal.Rptr. 259].) To go yet another step and allow monetary recovery to one who knowingly becomes intoxicated and thereby injures himself is in our view morally indefensible.
Does this plaintiff’s conduct differ conceptually from that of a driver who engages in a speed contest on a crowded city street, attains a speed of 100 miles per hour, loses control of his vehicle, injures himself, and then sues his fellow contestant on a comparative willful misconduct theory? Would we, should we, allow such a driver to recover? Certainly not. Yet, all the arguments in favor of plaintiff here are equally available and applicable there, including the contention that by denying recovery we allow the culpable defendant to escape an accounting for his misdeed. This latter is not necessarily so, for the defendant in either case is subject to criminal prosecution for his misconduct, and such prosecution may be instigated by the injured and indignant speed driver or drunk patron as much as by law enforcement officers (22 C.J.S., Crim. Law, § 300, p. 790). But even if it were so, we are faced with a practical choice of “favoring” the drunk patron and speed contestant on the one hand or the tavern owner and cocontestant on the other.4 Without conceding a “favor” to any one, the age-old doctrine of pari delicto (42 C. J.S. 490) directs us to deny recovery.
Let us dispel the fantasy that application of a comparative fault principle here would not favor the patron, rather that it would merely assess to him a proper portion of his loss while at the same time giving [857]equal treatment to the tavern owner. While this is semantically attractive, in reality the allowance of any recovery to an injured drunk plaintiff patron against the tavern owner accrues to the financial benefit of the patron. It is no less a benefit to him, and no less immoral under the principles espoused herein, because the recovery could be greater. Heretofore, no recovery has been allowed such a plaintiff; to now allow it in any degree would be to award a pure and simple financial windfall to an undeserving plaintiff, which no amount of temporal theorizing can change.
How far removed is this from one who voluntarily undertakes with another to engage in an affray (Pen. Code, § 415) or a duel (Pen. Code, § 225) and who thereafter sues his antagonist for an injury caused thereby? Should a comparative assault and batteiy concept now evolve? Curiously enough, there are jurisdictions which have imposed total, not just comparative, liability upon the antagonist in such cases (see Prosser, Law of Torts (4th ed. 1971) fn. 96, p. 107). Such holdings have by now been thoroughly discredited. (See 4 Witkin, Summary of Cal. Law, supra, Torts, § 198, pp. 2484-2485; Prosser, Law of Torts, supra, p. 107; Rest.2d Torts, § 60, pp. 92-93.) Prosser puts it in these words: “But the cases have been roundly criticized on the grounds that no one should be rewarded with damages for his own voluntary participation in a wrong, particularly where, as is usually the case, he himself commits a crime; that the state is fully able to protect itself by a criminal prosecution; and that the parties, if they give any thought to the law at all, which is quite improbable, are quite as likely to be encouraged by the hope that if they get hurt they can still win in court. A minority of some eight states, with the support of the Restatement, have held that the consent will defeat the civil action, except where the force used exceeds the consent.” (Idem.) (Fns. omitted.) (Italics added.) In California, the precise question has not been ruled upon (cf. Hudson v. Craft (1949) 33 Cal.2d 654 [204 P.2d 1, 7 A.L.R.2d 696]), but in Sayadoff v. Warda (1954) 125 Cal.App.2d 626 [271 P.2d 140], a closely analogous case, the restatement rule was followed, the court saying (at p. 631): “Admittedly, the court should discourage the violation of the penal statutes of this state, but it is highly doubtful that this end should be sought through the medium of civil litigation. It is also highly doubtful that any deterrent would be afforded by allowing damages in such a case as this. Such holding might well encourage a line of conduct such as we have before us,—the submission to abortions with no complaint if they are successful, but with the assurance of financial reward if the woman participant is injured.” We find this volenti non fit [858]injuria notion of intentional tort law highly analogous to the case before us. Just as the willful participant in a speed contest should be precluded from proceeding against his cocontestant for injuries incurred in the contest, so should the drunken patron be precluded from proceeding against the tavern owner.
Socio-economic considerations also militate against allowance of a cause of action here. There are over 25,000 licensed on-sale alcohol dispensing businesses throughout the State of California, and there are hundreds of thousands of patrons who use their facilities daily, a large percentage of whom drive automobiles after some consumption of alcohol. The latter are largely responsible for the devastating highway carnage resulting' from automobile accidents. Everything reasonably conceivable should be done to discourage such activity; conversely, nothing should be done to encourage it, particularly by the judiciary. A rule of liability here could have no other possible effect upon patrons than to encourage them to excessive liquor consumption at taverns. Forthwith upon the announcement of a rule of law which permits a drunken patron to recover damages for his own injuries from the tavern keeper, patrons who have heretofore felt concern for their own safety should they become overly intoxicated will relax their personal efforts, for three readily apparent reasons. First, because they will assume that the bartenders will exercise greater care in their behalf; second, because they very naturally will feel that if they are hurt they will be compensated for such hurt; and third, because we, the judiciary, will in effect have encouraged their overindulgence, by pampering their delinquency. It cannot be otherwise. The already tragic statistics which so horribly describe the slaughter of innocent persons by drunk drivers will immediately increase, to society’s further disadvantage.
There would be no converse prophylactic effect to society in terms of a deterrent to the tavern owner. We are fully aware of. the practical difficulty of criminally and administratively policing section 25602 and of how such policing has been ineffective to stem the slaughter on our highways. But it simply does not follow that the creation of a rule of civil liability in favor of the patron would have any salutary effect. All that would occur would be that a rash of lawsuits would be filed by or in behalf of patrons of tavern owners, ranging from the patron who falls off his stool (Hitson v. Dwyer, supra) to the heirs of the patron who kills himself in his own shower at home, hours after his revelries (to say nothing of the inevitable plaintiff who will claim damages because his [859]wife divorced him when he came home drunk and beat her). These lawsuits will bring about uniform substantial upward adjustments in liability insurance premiums.5 Tavern owners will pay the higher premiums and appropriately increase their liquor prices to the public, with absolutely no reasonably foreseeable change in the rate of adherence to the Business and Professions Code section 25602 proscription.
If more efficacious enforcement of section 25602 is to be carried out at public expense, let it be done directly, by such methods as increased emphasis and concentration upon surveillance (including the addition of the necessary manpower) to detect and prosecute violators, and stricter and more financially painful administrative penalties for violators.6 But to expect undesirable lawsuits by undeserving drunks to serve as the panacea which will accomplish this result is naive and unrealistic.
There are of course other considerations, both favorable and unfavorable to both sides of the issues, which we have not deemed it necessary to minutely detail here (see Raymond v. Paradise Unified School Dist., supra). We have carefully considered and analyzed them all, and have found the scales tipped heavily against allowance of recovery. Our conclusion is further confirmed by the negative action of the Legislature in refusing to enact proposed legislation which would have brought about an opposite result. (See Eu v. Chacon (1976) 16 Cal.3d 465, 470 [128 Cal.Rptr. 1, 546 P.2d 289].)
Our principal point of departure from our dissenting brother justice is in his treatment of the plaintiff’s act as one of negligence rather than willful misconduct. Indeed, application of the Li doctrine compels a right of recovery, if the drunken plaintiff is merely negligent. Prior to Li, the California appellate cases denying plaintiff recovery (Cole v. Rush (1955) 45 Cal.2d 345 [289 P.2d 450, 54 A.L.R.2d 1137]; Carlisle v. Kanaywer, supra; Sargent v. Goldberg, supra, etc.) spoke in terms of [860]negligence (except for the above quoted portion of Cooper v. National Railroad Passenger Corp., supra). There was, of course, no need for them to delve deeper into the niceties of distinction between negligence and willful misconduct (or even intentional wrong) as they relate to the patron’s conduct. The Li case, of course, requires indulgence in such considerations; and having noted the plaintiff’s conduct to be willful, our reasoning.leads us to the conclusion which we have reached.7
II
There is another reason procedurally why this plaintiff in this case would not be entitled to recover, even if a rule of comparative willful misconduct had been enunciated. The Li court gave its comparative negligence doctrine limited retroactivity. In so doing, it stated, “It remains for us to determine the extent to which the rule here announced shall have application to cases other than those which are commenced in the future. It is the rule in this state that determinations of this nature turn upon considerations of fairness and public policy. [Citations.] Upon mature reflection, in view of the very substantial number of cases involving the matter here at issue which are now 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 in this court, but that it shall not be applicable to any case in which trial began before that date (other than the instant case)—except that if any judgment be reversed on appeal for other reasons, this opinion shall be applicable to any retrial.” (Italics added.) (Li v. Yellow Cab Co., supra,.at p. 829.)
Defendant’s demurrer was sustained in May 1974, and a judgment of dismissal entered September 1974. Li v. Yellow Cab Co. was filed March 31, 1975. Defendant claims that within the meaning of Li and its retroactive application (id., at p. 829), the case was “tried” prior to the finality of Li. The contention is correct and thus itself disposes of plaintiff’s appeal.
[861]Plaintiff questions whether a “trial” took place where judgment of dismissal was entered after sustaining a demurrer without leave to amend. It did. At the time of the hearing on demurrer, the law applicable to the pleadings under attack had been clearly enunciated in Cole v. Rush, supra, Carlisle v. Kanaywer, supra, and Sargent v. Goldberg, supra; the ruling on demurrer was therefore correct.
Trial has been variously defined to always include a hearing on demurrer if that proceeding was dispositive of the action. In O’Day v. Superior Court (1941) 18 Cal.2d 540, 544 [116 Cal.Rptr. 621], the court defined trial as follows, “Generally speaking, a ‘trial’ includes all rulings of a court in proceedings before it made in furtherance of the decisions made upon the issues in the case which form the basis of the judgment. (Stow v. Superior Court, 178 Cal. 140 . . . .)” In Berri v. Superior Court (1955) 43 Cal.2d 856 [279 P.2d 8], the court at page 859 stated, “When the demurrer has been sustained and judgment of dismissal has been entered, there has been a trial and the action is not subject to dismissal under section 583. ... [1] [I]t has been said generally in defining a trial that it is the determination of an issue of law or fact; a demurrer of course calls for the determination of an issue of law only. (City of Pasadena v. Superior Court, 212 Cal. 309 [298 P. 968]; O’Day v. Superior Court, 18 Cal.2d 540 [116 P.2d 621]; Redington v. Cornwell, 90 Cal. 49 [27 P. 40]; Tregambo v. Comanche M. & M. Co., 57 Cal. 501; Booth v. County of Los Angeles, 69 Cal.App.2d 104 [158 P.2d 401]; . . .”
Our Supreme Court in McDonough Power Equipment Co. v. Superior Court (1972) 8 Cal.3d 527, at page 531 [105 Cal.Rptr. 330, 503 P.2d 1338], stated, “ ... in defining ‘trial’ we have said ‘that it is the determination of an issue of law or fact’ (Berri v. Superior Court (1955) 43 Cal.2d 856, 859 [279 P.2d 8]) or ‘the examination ... of the facts or law put in issue in a cause . . . . ’ (Tregambo v. Comanche M. and M. Co. (1881) 57 Cal. 501, 505; see also Adams v. Superior Court (1959) 52 Cal.2d 867, 870 [345 P.2d 466] and cases there cited; Carney v. Simmonds (1957) 49 Cal.2d 84, 90 [315 P.2d 305]; City of Pasadena v. Superior Court (1931) 212 Cal. 309, 313 [298 P. 968]; Good v. State of California, supra, 273 Cal.App.2d 587, 590-591; Smith v. City of Los Angeles, supra, 84 Cal.App.2d 297, 301-302 and cases there cited.)”
Consistently with these authorities, we hold that where a plaintiff files a complaint which under existing law states no cause of action, and a general demurrer thereto is sustained without leave to amend, and judgment is entered thereon fully and finally disposing of [862]the litigation, a “trial” has taken place, the only trial to which plaintiff is entitled. Analytically we perceive no other sense in which the Li court could have used the word as it relates to a case where contributory negligence appears on the face of the complaint. In such-a context, fully expecting the trial courts to follow binding precedent (People v. Triggs (1973) 8 Cal.3d 884, 890 [106 Cal.Rptr. 408, 506 P.2d 232]; 6 Witkin, Cal. Procedure (2d ed. 1971) Appeal, § 664, p. 4578), life Supreme Court could not have contemplated a full trial including plaintiff’s evidence, defendant’s evidence, rebuttal, argument, verdict or intended decision, and finally judgment; for such an all-inclusive trial prior to Li would have been impossible, unless conducted by a maverick court refusing to follow precedent. At some point, the trial court would have performed its duty and resolved the litigation adversely to the plaintiff by such procedures, inter alia, as directed verdict (Code Civ. Proc., § 624), nonsuit (Code Civ. Proc., § 581c), judgment under Code of Civil Procedure section 631.8, summary judgment (Code Civ. Proc., § 437c), or judgment on the pleadings (4 Witkin, Cal. Procedure (2d ed. 1971) Proceedings Without Trial, § 161 et seq., p. 2816). These procedures must necessarily all be deemed to constitute a trial, for the logically inescapable reason that given the law of the instant, plaintiff has by each of them received a full exposition of his entire case before a judicial tribunal, and a disposition accordingly. He receives no less when his complaint fails to state a cause of action and a general demurrer thereto is sustained. In using the phrase “cases in which trial has not begun before the date this decision becomes final,” the Supreme Court doubtless had in mind the hundreds of pending cases in which the defense of contributory negligence was pleaded, and which were entitled to proceed to trial (evidentiary hearing) in any event; as to these, the comparative negligence concept would or would not apply, depending upon whether “trial has . . . begun.” There was no intent to upset legally correct dispositions by demurrer or other similar ruling on the applicable law, long since final as to the trial court, any more than to upset similar results following evidentiary trial. Li v. Yellow Cab Co., supra, does not apply.
The judgment is affirmed.
Before Friedman, Acting P. J., Paras, J., and Evans, J.
In juxtaposition to the plaintiff’s willful misconduct is the wrongful act of the tavern owner (or his bartender), a violation of a penal statute (Bus. & Prof. Code, § 25602). For purposes of this decision, we deem it to also be willful misconduct.
While the degree of intoxication progresses “imperceptibly” with the continued consumption of alcohol, there is nothing imperceptible or obscure about the drinker’s [853]preconception of ultimate results as he embarks upon his bacchanal. In fact, limiting our remark to the context of this litigation only, we perceive little conceptual difference between our drunken plaintiff here and the person who injects heroin or LSD into his body.
We note that the portion of Business and Professions Code section 25602 which prohibits sale to a “habitual or common drunkard" is not involved in this case.
See an excellent discussion of our judgment value problem in 20 McGill L.J. 492, 507-509.
See footnote 10 of the dissenting opinion.
There were over 27.000 on-sale and over 21,000 off-sale alcoholic beverage licenses issued during 1974 and 1975. The Department of Alcoholic Beverage Control filed only 333 accusations (for violation of § 25602) during 1974 and 249 during 1975 (a number of which were doubtless disposed of without any interruption of business under Bus. & Prof. Code. § 23095). It thus, appears that this area needs considerable legislative and executive attention, particularly since “Over 407 of all fatal accidents and 17.67 of all injury accidents [show that] the party causing the accident . . . had been drinking.” (1974 Annual Report of Fatal and Injury Motor Vehicle Accidents, California Highway Patrol, p. 57.)
In reaching our conclusion, the decisional law of other jurisdictions has been of little assistance. A few states have departed from the traditional common law concept which denies relief to the drunken patron; some have adopted,“dram-shop statutes” providing for a right of action for the patron; the majority continue to adhere to the common law concept, for various articulated reasons, and deny the intoxicated patron a right of relief. (54 A.L.R.2d 1152; 64 A.L.R.2d 705; 65 A.L.R.2d 923; 75 A.L.R.2d 833.)