134 Wn.2d 509, CROWE v. GASTON

Argued November 19, 1996. Decided February 26, 1998.

JOEL A.E. CROWE, Appellant, v. KENNETH GASTON, ET AL., Respondents.

[1] Judgment - Summary Judgment - Review - In General. An appellate court reviews a summary judgment by engaging in the same inquiry as the trial court (i.e., the court applies the standard of CR 56(c) directly to the evidence in the record as viewed most favorably toward the nonmoving party).

[2] Negligence - Elements - In General. Compensable negligence is established upon proof of (1) an injury (2) proximately caused by (3) the breach of (4) a legal duty of care.

[3] Negligence - Duty - Question of Law or Fact - In General. The existence of a duty of care is a question of law.

[4] Negligence - Duty - Standard of Care - Statutory Provisions - In General. The standard of care required of a reasonable person may be prescribed by a legislative enactment.

[5] Negligence - Violation of Statute or Regulation - Effect. The breach of a statutory duty of care constitutes evidence of negligence.

[6] Negligence - Duty - Standard of Care - Statutory Provisions - Protected Class - Necessity. A negligence claimant may be owed a statutory duty of care if the claimant is a member of the class of persons the statute was enacted to protect.

[7] Intoxicating Liquors - Minors - Selling Liquor to Minor - Statutory Prohibition - Duty - Scope - Persons Protected. The class of persons protected by RCW 66.44.270 and 66.44.320, which prohibit commercial sales of intoxicating liquor to minors, includes minors who are injured as the result of a minor, to

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whom alcohol has been sold in violation of the statutes, sharing the alcohol with other minors.

[8] Negligence - Duty - Scope - Foreseeability - Effect. An actor is responsible only for the foreseeable consequences of his actions.

[9] Negligence - Duty - Scope - Foreseeability - Question of Law or Fact. The foreseeability of a risk of harm is a question of fact that may be decided as a matter of law only if reasonable minds could not differ on the outcome.

[10] Intoxicating Liquors - Minors - Selling Liquor to Minor - Statutory Prohibition - Duty - Scope - Foreseeability of Harm - Factors. To determine whether it is foreseeable that alcohol purchased by one minor would be shared with other minors, the court may consider the following nonexclusive factors: (1) the amount and character of the alcohol sold, (2) the presence of other minors on the premises or in a vehicle, (3) the time of day the beverages are sold, and (4) statements made by the purchaser to the vendor.

[11] Negligence - Duty - Scope - Foreseeability - Test. The foreseeability standard for negligence liability is satisfied if the resulting harm is reasonably perceived as being within the general field of danger covered by the specific duty owed.

[12] Negligence - Proximate Cause - Legal Causation - Factors. The legal causation element of proximate cause is grounded in a policy determination of how far the consequences of a defendant's acts should extend and depends upon mixed considerations of logic, common sense, justice, policy, and precedent.

[13] Negligence - Proximate Cause - Legal Causation - Question of Law or Fact. When no facts are in dispute, legal causation is a question of law for the court to decide.

[14] Intoxicating Liquors - Minors - Selling Liquor to Minor - Statutory Prohibition - Proximate Cause - Legal Cause - Alcohol Shared With Other Minors. The risk that alcoholic beverages sold by a commercial vendor to a minor in violation of RCW 66.44.270 and 66.44.320 will be shared with other minors and that one or more of those minors will drive a motor vehicle in an intoxicated state and injure another party is not too remote a consequence to impose liability on the vendor, provided that the risk is foreseeable, the injured party is not more than 50 percent at fault, and the chain of causation has not been broken by a superseding cause.

[15] Negligence - Proximate Cause - Elements. Proximate cause in a negligence action is established upon proof of cause-in-fact as well as legal causation.

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[16] Negligence - Proximate Cause - Cause in Fact - Proof. Cause-in-fact in a negligence action is established upon proof that there was a sufficiently close, actual, causal connection between the defendant's conduct and the actual damage suffered by the plaintiff.

[17] Negligence - Proximate Cause - Intervening Causes - Superseding Cause. An intervening act constitutes a superseding cause if it breaks the chain of causation linking the defendant's negligence to the plaintiffs injury.

[18] Negligence - Proximate Cause - Intervening Causes - Foreseeability - Necessity. Whether an intervening act may be considered a superseding cause sufficient to relieve a defendant of negligence liability depends upon whether the intervening act could reasonably be foreseen by the defendant; only intervening acts that are not reasonably foreseeable are deemed superseding causes.

[19] Negligence - Proximate Cause - Intervening Causes - Foreseeability - What Constitutes. An intervening act is not foreseeable if it is so highly extraordinary or improbable as to be wholly beyond the range of expectability.

[20] Negligence - Proximate Cause - Intervening Causes - Foreseeability - Question of Law or Fact. The foreseeability of an intervening act is a question of fact.

[21] Intoxicating Liquors - Providing Liquor - Underage Recipient - Social Host - Statutory Provisions - Third Person Injury. The class of persons protected by RCW 66.44.270(1) (under which it is generally unlawful to furnish alcohol to a minor) does not include a third person injured by an intoxicated minor who was furnished the intoxicant by a social host.

[22] Intoxicating Liquors - Minors - Permitting Consumption by Minor - Statutory Prohibition - Purpose. RCW 66.44.270(1), under which it is generally unlawful to furnish alcohol to minors, is intended to protect minors from injuries resulting from their own abuse of alcohol, not to protect third parties injured by intoxicated minors.

DURHAM, C.J., and DOLLIVER, J., concur by separate opinion; JOHNSON, SANDERS, SMITH, and TALMADGE, JJ., dissent in part by separate opinions.

Nature of Action: A minor who was injured in an automobile driven by an intoxicated minor sought damages from a third minor who had furnished alcoholic beverages to the driver and from the commercial vendor that had sold the beverages to the third minor.

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Superior Court: The Superior Court for Clark County, No. 94-2-03790-4, Edwin L. Poyfair, J., on January 12, 1996, entered summary judgments dismissing the action against both defendants.

Supreme Court: Holding that statutes prohibiting the commercial sale of alcoholic beverages to minors created a duty of care, that the plaintiff was within the class of persons the statutes were intended to protect, that there remained an unresolved issue of material fact as to whether the harm suffered by the plaintiff was a foreseeable result of the vendor's unlawful sale of the alcohol, that the harm suffered by the plaintiff was not too remote to have been legally caused by the vendor's negligence, that there remained unresolved issues of material fact as to whether intervening acts by the intoxicated minor and the purchasing minor were foreseeable and broke the chain of causation linking the vendor to the plaintiff, and that the purchasing minor could not be held liable for the plaintiffs injuries, the court affirms the judgment dismissing the action against the third minor and reverses the judgment dismissing the action against the vendor.

Anthony J. Lowe, for appellant.

Bullivant, Houser, Bailey, Pendergrass & Hoffman, by Douglas F. Foley and R. Daniel Lindahl; Thorsrud, Cane & Paulich, Inc., P.S., by Russell C. Love; and Hoffman Hart & Wagner, by James P. Murphy, for respondents.

Bryan P. Harnetiaux, Gary N. Bloom, and Debra L. Stephens on behalf of Washington State Trial Lawyers Association, amicus curiae.

MADSEN, J. - Joel Crowe seeks review of a trial court

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order granting defendants Oscar's and Kevin Rettenmeier's motions for summary judgment. At issue is whether Oscar's can be liable for alcohol-related injuries to Crowe when Oscar's sold alcohol to a minor who shared it with another minor who then injured Crowe. We find that Oscar's can be held liable and reverse the trial court's order granting Oscar's motion for summary judgment.

Also at issue is whether Kevin Rettenmeier, the minor who bought the alcohol, can be found liable for Crowe's injuries for supplying alcohol to the minor who then injured Crowe. We conclude that he cannot and affirm the trial court's order granting Rettenmeier's motion for summary judgment.

STATEMENT OF THE CASE

On February 11, 1994, Kevin Rettenmeier, age 17, met Joe Schweigert and two of Schweigert's friends, Brad Rosenquist and Adam Fitzpatrick, all of whom were under 21, and agreed to buy them beer. They all proceeded to Oscar's, Rettenmeier traveling in a separate car. When they arrived, Schweigert and his friends gave money to Rettenmeier, who then entered the store and purchased beer while the others stayed in their car out of sight. It is not clear from the record how much beer was purchased. Rettenmeier purchased either 24, 12-ounce cans plus two 40-ounce bottles, or 12, 12-ounce cans, or four to possibly seven 40-ounce bottles of beer. Rettenmeier gave all the beer he purchased to Schweigert and his friends.

Afterward, the group decided to go over to the house of another acquaintance, Steve Dean. At Dean's house they were joined by Joel Crowe and others. The group drank beer and played pool; however, Crowe claims he did not drink any beer. Later that evening, Crowe accepted a ride home by an intoxicated Fitzpatrick. During the ride, Fitzpatrick drove off the road and hit a tree, causing injuries to Crowe.

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Crowe sued Oscar's and Rettenmeier, among others, for damages. Crowe claimed that Oscar's and Rettenmeier were liable for his injuries because they had furnished the alcohol that caused Fitzpatrick's intoxication. The trial court granted Oscar's and Rettenmeier's motions for summary judgment. Crowe appealed the trial court's order to the Court of Appeals. This court granted the Appellant's motion to transfer the case from the Court of Appeals.

STANDARD OF REVIEW

[1] An appellate court engages in the same review as the trial court when reviewing a summary judgment order. Reynolds v. Hicks, 134 Wn.2d 491, 495, 951 P.2d 761 (1998). Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Id. If, after considering the evidence in the light most favorable to the nonmoving party, reasonable minds could come to but one conclusion, then the motion for summary judgment will be granted. Id.

VENDOR LIABILITY

The issue presented in this case is whether Oscar's, a commercial vendor, can be liable for injuries to Crowe which resulted from Oscar's illegal sale of alcohol to Kevin Rettenmeier. Crowe bases his claim of negligence on Oscar's violation of RCW 66.44.320«1» and RCW 66.44.270,«2» which prohibit the sale of alcohol to anyone under the age of 21.

[2] In order to prove an actionable claim for negligence, Crowe must show (1) the existence of a duty to the plaintiff, (2) a breach of that duty, (3) a resulting injury, and (4) the breach as the proximate cause of the injury. See Reynolds, 134 Wn.2d at 495. Oscar's argument in this case is

«1» RCW 66.44.320 provides: "[e]very person who shall sell any intoxicating liquor to any minor shall be guilty of a violation of Title 66 RCW."

«2» RCW 66.44.270(1) provides: "[i]t is unlawful for any person to sell . . . liquor to any person under the age of twenty-one . . . ."

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two-fold. First Oscar's contends that it did not owe a duty of care to Crowe. Second, Oscar's asserts that, even if it owed a duty of care to Crowe, it was not the legal cause of Crowe's injuries.

A. Duty of Care

[3-6] We turn first to whether Oscar's owed a duty of care to Crowe. The existence of a legal duty is a question of law. Schooley v. Pinch's Deli Market, Inc., 134 Wn.2d 468, 474, 951 P.2d 749 (1998). Washington courts have recognized that a legislative enactment may prescribe a standard of conduct required of a reasonable person that when breached may be introduced to the trier of fact as evidence of negligence. Id. at 474; Purchase v. Meyer, 108 Wn.2d 220, 737 P.2d 661 (1987). To determine whether a defendant owes a duty of care to a complaining party based upon a statutory violation, this court has adopted the RESTATEMENT (SECOND) OF TORTS § 286«3» which, among other things, requires the injured person to be within the class of persons the statute was enacted to protect. Schooley, 134 Wn.2d at 474-75. Oscar's argues that this prong of the Restatement test is not satisfied.

Citing our decisions in Young and Purchase, Oscar's contends that Crowe is not a member of the protected class because only minor purchasers and third persons injured by the minor purchaser are protected by the statutes in question. See Young v. Caravan Corp., 99 Wn.2d 655, 663 P.2d 834, 672 P.2d 1267 (1983) (a minor purchaser's estate had an action in negligence for the minor's alcohol-related

«3» RESTATEMENT (SECOND) OF TORTS § 286 (1965) provides:

"The court may adopt as the standard of conduct of a reasonable man the requirements of a legislative enactment . . . whose purpose is found to be exclusively or in part

"(a) to protect a class of persons which includes the one whose interest is invaded, and

"(b) to protect the particular interest which is invaded, and

"(c) to protect that interest against the kind of harm which has resulted, and

"(d) to protect that interest against the particular hazard from which the harm results."

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death against the tavern owner who sold alcohol to the minor); Purchase, 108 Wn.2d 220 (a third person injured by an intoxicated minor purchaser had a cause of action against the tavern owner who sold alcohol to the minor). However, in our recent decision in Schooley, we found the protected class was not so limited.

[7-11] In that case, Lori Schooley became intoxicated from alcohol obtained from another minor purchaser and injured herself. Schooley, 134 Wn.2d at 472. The alcohol vendor in Schooley made a similar argument which we rejected, finding the protected class extends to injuries which result when a minor purchaser shares the alcohol with other minors. Id. at 476. We noted that this court in Purchase emphasized that vendors owed a duty not only to the minor purchaser but "'to members of the general public as well.'" Id. at 476 (quoting Purchase, 108 Wn.2d at 228). In light of the purpose of the legislation, which is to prevent against the hazard of "'alcohol in the hands of minors,'" we found it was arbitrary to draw a distinction between third persons injured by the intoxicated minor purchaser and those injured as a result of the minor purchaser sharing the alcohol with other minors. Id. at 476 (quoting Hansen v. Friend, 118 Wn.2d 476, 481-82, 824 P.2d 483 (1992)). We found this distinction especially illogical when faced with the fact that minors who drink commonly do so with other minors. Id. at 476. "[Protecting all those injured as a result of the illegal sale of alcohol to minors is the best way to serve the purpose for which the legislation was created, to prevent minors from drinking." Id.

In this case, similar to the situation in Schooley, Kevin Rettenmeier purchased alcohol which he gave to a number of other minors. One of those minors then drove while intoxicated causing injuries to Crowe. Thus, we find that Crowe is part of the protected class.

The alcohol vendor, of course, is responsible only for the foreseeable consequences of his actions. Id. at 477; see also Burkhart v. Harrod, 110 Wn.2d 381, 395, 755 P.2d 759

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(1988). In this way, foreseeability serves to limit the scope of the duty owed by the alcohol vendor to Crowe. See Schooley, 134 Wn.2d at 477. Whether or not it was foreseeable that the minor purchaser would share the alcohol with others resulting in the injury to Crowe is a question of fact for the jury. See id. at 477. The trier of fact may consider the amount and character of the alcohol purchased, the time of day, the presence of other minors on the premises or in a vehicle, and statements made by the purchaser to determine whether it was foreseeable the alcohol would be shared with others. Id.

Oscar's asks this court to find, as a matter of law, that the circumstances of the sale of beer to Rettenmeier could not put the seller on notice that the beer would be shared with others and that they would then drive while intoxicated. We will decide issues of foreseeability as a matter of law only where reasonable minds cannot differ. Schooley, 134 Wn.2d at 477. Based on the facts of this case, however, we decline to find that Crowe's injuries were not foreseeable.

First, in Schooley we determined that reasonable minds could conclude that a minor purchasing substantial quantities of alcohol would share it with other minors. Id. at 477. Second, and more important, there is a genuine issue of material fact in this case concerning how much beer was actually purchased. Thus, it is for the trier of fact to determine how much beer was actually purchased and if the amount purchased would indicate that it would be shared with others.

Additionally, we find that reasonable minds could conclude that minors who obtain alcohol from another minor purchaser would then drive while intoxicated. The question is whether "'"[t]he harm sustained [is] reasonably perceived as being within the general field of danger covered by the specific duty owed by the defendant." (Quoting Hansen, 118 Wn.2d at 484). Id. at 478. We have previously recognized that the general harm encompassed by this duty is that of alcohol-induced driver error. Christen

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v. Lee, 113 Wn.2d 479, 495, 780 P.2d 1307 (1989). In fact, a minor is guilty of driving under the influence in Washington if the minor has a breath test reading of .02 grams of alcohol per 210 liters of breath. RCW 46.61.503, .506. This standard is one-fifth that of adults. See RCW 46.61.502. It follows that the Legislature was particularly concerned about the danger of minors driving while intoxicated. Thus, we leave the question of whether Crowe's injuries were foreseeable to the jury.

B. Legal Causation

[12, 13] Next, Oscar's argues that it was not the legal cause of Crowe's injuries. Legal causation is one of the elements of proximate causation and is grounded in policy determinations as to how far the consequences of a defendant's acts should extend. Schooley, 134 Wn.2d at 478-79. A determination of legal liability will depend upon "'"mixed considerations of logic, common sense, justice, policy, and precedent."'" Id. at 479 (quoting King v. City of Seattle, 84 Wn.2d 239. 250, 525 P.2d 228 (1974)). Where the facts are not in dispute, legal causation is for the court to decide as a matter of law.

[14] As the petitioner did in Schooley, Oscar's argues that Crowe's injuries are too remote from the initial sale and that legal consequences of the sale cannot extend that far. See Schooley, 134 Wn.2d at 481. Oscar's bases this argument solely on the policy concern of unlimited liability. In Schooley, however, we found this argument unpersuasive noting that other legal principles such as foreseeability, superseding causation, and contributory negligence serve to dispel these fears. Id. at 481-82. We found that the policies behind legislation prohibiting the sale of alcohol to minors outweighed Petitioner's concerns. Id. at 480-83.

This is especially so where the duty involved is not onerous. The alcohol vendor is simply required to check the buyer's identification. Additionally, if, after the purchaser presents identification, the vendor still has doubts about the purchaser's age the vendor can fill out and have the purchaser sign a certification card complying with RCW

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66.20.190. If the vendor completes this step the vendor is immune from any criminal or civil liability regarding the sale of alcohol to the minor. RCW 66.20.210; see also Schooley, 134 Wn.2d at 481.

In this case we find the injuries to Crowe are not so remote as to preclude liability. The policy consideration behind the legislation prohibiting vendors from selling alcohol to minors are best served by holding vendors liable for the foreseeable consequences of the illegal sale of alcohol to minors. Thus, we conclude that legal cause is satisfied in this case.

C. Superseding Causation

[15-17] Finally, Oscar's argues that the intervening intentional misconduct of Rettenmeier, the minor purchaser, and Fitzpatrick, the driver, serve to break the chain of causation in this case. A finding of proximate causation is premised upon the proof of cause in fact, as well as the legal determination that liability should attach. Mailman v. Sauer, 84 Wn.2d 975, 981, 530 P.2d 254 (1975). Cause in fact requires proof that "'there was a sufficiently close, actual, causal connection between defendant's conduct and the actual damage suffered by plaintiff.'" Id. (quoting Rikstad v. Holmberg, 76 Wn.2d 265, 268, 456 P.2d 355 (1969)). A defendant's negligence is the cause of the plaintiffs injury only if such negligence, unbroken by any new independent cause, produces the injury complained of. Id. at 982. Where an intervening act does break the chain of causation, it is referred to as a "superseding cause." Id.

[18-20] "'Whether an act may be considered a superseding cause sufficient to relieve a defendant of liability depends on whether the intervening act can reasonably be foreseen by the defendant; only intervening acts which are not reasonably foreseeable are deemed superseding causes.'" Cramer v. Department of Highways, 73 Wn. App. 516, 520, 870 P.2d 999 (1994) (quoting Anderson v. Dreis & Krump Mfg. Corp., 48 Wn. App. 432, 442, 739 P.2d 1177 (1987)). An intervening act is not foreseeable if it is "'so highly extraordinary or improbable as to be wholly beyond

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the range of expectability.'" Christen, 113 Wn.2d at 492 (quoting McLeod v. Grant County Sch. Dist. No. 128, 42 Wn.2d 316, 323, 255 P.2d 360 (1953)). The fbreseeability of an intervening act, unlike the determination of legal cause in general, is ordinarily a question of fact for the jury. Cramer, 73 Wn. App. at 521. Thus, in this case it is for the jury to decide whether the acts of Rettenmeier and Fitzpatrick break the chain of causation, thus relieving Oscar's from liability.

SOCIAL HOST LIABILITY

Crowe also asserts that Rettenmeier is liable for his injuries because Rettenmeier breached a duty owed to Crowe when he supplied beer to Fitzpatrick. Crowe's claims concern the duties of a social host rather than a commercial vendor of alcohol. The issue presented in this case is whether a social host, Rettenmeier, who furnishes alcohol to a minor, Fitzpatrick, owes a duty of care to a third person, Crowe, injured by the intoxicated minor.

[21, 22] Plaintiff contends that RCW 66.44.270(1) creates a duty of care owed by Rettenmeier to Crowe. RCW 66.44.270(1) makes it unlawful for any person to "give, or otherwise supply liquor to any person under the age of twenty-one years . . . ." This court has recognized that a minor who is injured as a result of alcohol intoxication has a cause of action against the social host who supplied the alcohol based on a violation of RCW 66.44.270(1). See Hansen, 118 Wn.2d 476. However, in Reynolds, we recently held that social host liability based on RCW 66.44.270(1) does not extend to injuries to third persons. See Reynolds, 134 Wn.2d at 501.

In Reynolds, we emphasized our reluctance to hold social hosts liable to the same extent as commercial vendors. "'Social hosts are not as capable of handling the responsibilities of monitoring their guests' alcohol consumption as are their commercial and quasi-commercial counterparts . . . . "[T]he commercial proprietor has a proprietary interest and profit motive, and should be expected to

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exercise greater supervision than in the (non-commercial) social setting."'" Id. at 497 (alteration in original) (quoting Burkhart v. Harrod, 110 Wn.2d 381, 386-87, 755 P.2d 759 (1988)).

Additionally we found that RCW 66.44.270 was enacted to protect minors from injuries resulting from their own abuse of alcohol, not to protect third parties injured by intoxicated minors. Reynolds, 134 Wn.2d 499. We explained that RCW 66.44.270(1) does not make it unlawful for the minor's parent or guardian to give alcohol to the minor if consumed in the presence of the parent or guardian, indicating that the statute was not designed for the protection of third persons. Reynolds, 134 Wn.2d at 499-500; see also Mills v. Estate of Schwartz, 44 Wn. App. 578, 584, 722 P.2d 1363 (1986) (finding that the Legislature, by allowing minors to drink alcohol if furnished by the minor's parent, did not intend to protect third persons); Hostetler v. Ward, 41 Wn. App. 343, 354, 704 P.2d 1193 (1985) (based on the exception to the statute, the court found that RCW 66.44.270 was designed to protect minors, not third persons, from injury). We noted in Reynolds that expanding the protected class to include injured third persons would "lead to an illogical result whereby a person who did not violate RCW 66.44.270 would then be liable in negligence pursuant to the same statute." Reynolds, 134 Wn.2d at 500. We concluded that RCW 66.44.270(1) was not enacted to protect third persons injured by an intoxicated minor. Id. at 500.

We also noted that the Legislature provided alcohol vendors with a means by which they can immunize themselves from civil liability for alcohol-related injuries resulting from the sale of alcohol to a minor, but did not provide the same protection for social hosts. Id. at 499; RCW 66.20.210.«4» This distinction, we stated, evinced an intent by the Legislature that commercial vendors would be held liable to a greater extent than social hosts.

«4» If, after a purchaser presents identification, the vendor still has doubts about the purchaser's age the vendor can fill out and have the purchaser sign a certification card complying with RCW 66.20.190. If the vendor completes this step the vendor is immune from any criminal or civil liability regarding the sale of alcohol to the minor. RCW 66.20.210.

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Thus, in the present case, Rettenmeier owed no duty of care to Crowe.

CONCLUSION

We reverse the trial court's order granting Oscar's motion for summary judgment and affirm the trial court's order granting Rettenmeier's motion for summary judgment.

GUY and ALEXANDER, JJ., concur.

DURHAM, C.J. (concurring) - I agree with the majority that a commercial vendor's duty to refrain from selling alcohol to minors extends to all minors and third parties who are foreseeably injured as a result. I also agree that, as a gratuitous furnisher of alcohol, Rettenmeier should not be liable for injuries to third parties caused by the minor to whom he furnished alcohol. However, I would do so for the reasons expressed in my concurrence in Reynolds v. Hicks, 134 Wn.2d 491, 503, 951 P.2d 761 (1998) (Durham, C.J., concurring).

DOLLIVER, J., concurs with DURHAM, C.J.

JOHNSON, J. (concurring in part, dissenting in part) - For the reasons articulated in my dissent in Reynolds v. Hicks, 134 Wn.2d 491, 951 P.2d 761 (1998); (Johnson, J., dissenting), I must reaffirm my position and concur in part and dissent in part. The facts of the present case involve a commercial alcohol vendor who sells alcohol to a minor, who transfers alcohol to another minor, who becomes intoxicated and injures another person. In this single case we are confronted with commercial alcohol vendor liability, the issue in Schooley v. Pinch's Deli Market, 134 Wn.2d 468, 951 P.2d 749 (1998), and social host liability, the issue in Reynolds.

The majority's position that commercial alcohol vendors

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are liable when they illegally sell alcohol to minors is consistent with our decision in Schooley; however, the majority continues to justify the illegal conduct of providing alcohol to minors when the person providing the alcohol is a social host. I have clearly stated my position on this issue in my dissent in Reynolds and in State v. Hansen, 118 Wn.2d 476, 824 P.2d 483 (1992). Under RCW 66.44.270(1), social hosts have a duty of care and may be found liable in negligence when an injury is caused by breach of this duty.

SMITH and TALMADGE, JJ., concur with JOHNSON, J.

SANDERS, J. (concurring in part, dissenting in part) - I would affirm the trial court's dismissal of claims against Oscar's for the reasons set forth in my dissenting opinion in Schooley v. Pinch's Deli Market, Inc., 134 Wn.2d 468, 483, 951 P.2d 749 (1998) (Sanders, J., dissenting). I concur with the majority that the claim against Rettenmeier must be dismissed based on Reynolds v. Hicks, 134 Wn.2d 491, 951 P.2d 761 (1998).