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Lyons v. Nasby3/20/1989
. . . 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.
Raymond v. Paradise Unified School Dist., 218 Cal. App. 2d 1, , 31 Cal. Rptr. 847, 851-52 (1963). See also Swartz v. Huffmaster Alarms Sys., 145 Mich. app 431, 377 N.W.2d 393 (1985).
In applying these factors, I do not find that a provide bands in such a relationship to an inebriated consumer than the law should impose a duty on the provider to act for the benefit of the consumer. The concerns of public policy do not extend to protect an intoxicated adult from the results of own intoxication. A person who intends to drink, before he picks up that first glass of liquor, should be aware that he is solely responsible for whatever havoc he may wreak upon himself. To give such person a cause of action against the provider shifts the responsibility from the imbiber, and says that to this extent the consumer need not be responsible. Any shifting of the blame from the intoxicated person, especially an intoxicated driver, is contrary to sound public policy. See Olsen v. Copeland, 90 Wis. 2d 483, 280 N.W.2d 178 (1979).
This underlying rationale, that a consumer of alcoholic beverages should be responsible for his own actions, was explained in Kindt v. Kauffman, 57 Cal. App. 3d 845, 855-58, 129 Cal. Rptr. 603, 610-12 (1976):
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 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. . . .
Government paternalism protecting people from their own conscious folly fosters individual irresponsibility and is normally to be discouraged. . . . 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.
I agree that imposing liability on a provider would contravene public policy. Rather, we should be guided by the policy that "human beings, drunk or sober, are responsible for their own torts. " State v. Hatfield, 197 Md. 249, 78 A.2d 754, 756 (Md. App. 1951). Allowing petitioner's cause of action against the respondent would only erode that responsibility. To recompense an intoxicated person for injury to himself or his property resulting from his own overindulgence tends to encourage, rather than to discourage, such overindulgence.
In addition, I do not believe that placing liability on the seller of alcoholic beverages would deter service of a drink to a visibly intoxicated customer. The seller already has a statutory duty not to serve intoxicants to one who is visibly intoxicated. If he breaches this duty, he risks both criminal penalties and civil suits brought by injured third parties. No additional deterrence will be gained by imposing liability for an intoxicated consumer's injury. However, such added liability will relieve a consumer of his personal responsibility. I believe that it cuts against the grain of good public policy to provide the person with the primary responsibility recourse for losses against one who is only secondarily responsible.
This situation may be compared to one in which a participant in an illegal act seeks to recover from another participant in that act. In such a case, the parties are deemed in pari delicto, and
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