HUNTLEY, Justice.
This appeal presents the issue of whether a cause of action lies against a licensed [260]*260vendor of intoxicating beverages for the wrongful death of and personal injuries to third parties caused by the continued serving of alcohol to the patron of the bar.
Steven Newton Bergman was killed while driving his pickup on Highway 95 near Athol, Idaho, when he was struck head-on in his own lane by a vehicle driven by Terri Lynn Henry. Mary Ruth Bergman brought this action both for the wrongful death of her husband and individually for injuries she suffered as a passenger in the Bergman pickup.1
Hagadone Hospitality Corporation, doing business as the Holiday Inn in Coeur d’Al-ene, and two of its employees, Jane Does I and II, were joined as defendants for allegedly continuing to serve alcoholic beverages to Henry knowing that she was becoming “extremely and dangerously intoxicated,” and further knowing that she would be operating a motor vehicle while in an “extremely impaired condition.”
After filing an Answer alleging that Bergman failed to state a claim against the defendants upon which relief could be granted, Hagadone Hospitality filed a motion for judgment of dismissal on the pleadings pursuant to I.R.C.P. 12(c). The district court granted the motion dismissing the complaint against Hagadone Hospitality and Jane Does I and II, basically on the ground that Idaho did not recognize, at that time, a cause of action based on “dram shop” liability.2
In Meade v. Freeman, 93 Idaho 389, 462 P.2d 54 (1969), this Court held that, in the absence of a specific statute, the vending of alcoholic beverages to an obviously intoxicated individual could not be the proxi[261]*261mate cause of damage to third parties resulting from the tortious or unlawful acts of the obviously intoxicated individual. Later, in Alegria v. Payonk, 101 Idaho 617, 619 P.2d 135 (1980), the Court overruled Meade in part, stating:
We therefore declare that [Meade], to the extent it infers that under common-law rule and present statutes the vending of intoxicants can never be the proximate cause of damage to third parties resulting from the tortious or unlawful acts of the consumer, is overruled.
Id. at 621, 619 P.2d at 139.
The alleged facts in Alegría involved a defendant, Payonk, who was under the legal drinking age and to whom two tavern owners continued to serve alcoholic beverages well after he was obviously intoxicated. The Court noted that it saw no reason why a purveyor of spirits should be exempt from the general duty “one owes to every person in our society to use reasonable care to avoid injury to the other person in any situation in which it could be reasonably anticipated or foreseen that a failure to use such care might result in such injury.” (Emphasis added). Alegria, 101 Idaho at 619, 619 P.2d at 137, quoting from Kirby v. Sonville, 286 Or. 339, 594 P.2d 818, 821 (1979). The Court then proceeded with the following analysis:
And in Harper v. Hoffman, 95 Idaho 933, 523 P.2d 536 (1974), this Court stated:
Every person has a general duty to use due or ordinary care not to injure others, to avoid injury to others by any agency set in operation by him, and to do his work, render services or use his property as to avoid such injury. 95 Idaho at 935, 523 P.2d at 588, quoting from Whitt v. Jarnagin, 91 Idaho 181, 188, 418 P.2d 278, 285 (1966).
In determining whether such duty has been breached by the allegedly negligent party, his conduct is measured against that of an ordinarily prudent person acting under all the circumstances and conditions then existing. Nagel v. Hammond, 90 Idaho 96, 408 P.2d 468 (1965). We perceive no justification for excusing the licensed vendor of intoxicants from the above general duty to which each person owes all others in our society. (Emphasis added).
Alegria, 101 Idaho at 619, 619 P.2d at 137.
This Court then applied the above -analysis to facts before it:
The “negligent entrustment” tort approved in Kinney [v. Smith, 95 Idaho 328, 508 P.2d 1234 (1973)] is a recognition of the risk of injury which exists when two ingredients are combined; the automobile and an incompetent or incapacitated driver. In Kinney, we said that a party may be liable for providing an intoxicated individual with an automobile. The issue in this case is the converse, i.e., should a party ever be held liable for providing the driver of an automobile with intoxicants.
In ruling on the correctness of the summary judgment entered in this case, we must determine “whether [appellants’] injury and the manner of its occurrence [were] so highly unusual that we can say as a matter of law that a reasonable man, making an inventory of the possibilities of harm which his conduct might produce, would not have reasonably expected the injury to occur. Kirby v. Sonville, supra. We are constrained to hold that, under the facts alleged at this stage of the proceedings, the question is not one of law but of fact, and should be resolved not by the court but the jury. It appears to this Court that if appellants are able to prove by a preponderance of the evidence that respondents knew or reasonably should have known that the intoxicated minor Payonk would operate an automobile upon leaving their establishment, in addition to proving the allegations of the complaint, a reasonable jury could conceivably find liability. (Emphasis added).
Id. 101 Idaho at 620, 619 P.2d at 138.
Thus, this Court in Alegría applied the rule that there is “no justification for excusing the licensed vendor of intoxicants from the ... general duty which each person owes all others” to its instant facts, [262]*262which involved the serving of alcohol to a minor who was obviously intoxicated.
Five years later in Estates of Braun v. Cactus Pete’s, Inc., 107 Idaho 484, 690 P.2d 939 (App.1985), the Idaho Court of Appeals applied the Alegría standard to a case involving the vending of alcoholic beverages to an obviously intoxicated adult, reasoning:
We do not believe that such a determination should be removed from the province of the jury simply because the intoxicated consumer’s age exceeds the statutory minimum. In a given factual context, the chronological immaturity of an underage alcohol consumer might make it more foreseeable that injury would result from his intoxication than if the consumer were legally old enough to drink. However,
Free access — add to your briefcase to read the full text and ask questions with AI
HUNTLEY, Justice.
This appeal presents the issue of whether a cause of action lies against a licensed [260]*260vendor of intoxicating beverages for the wrongful death of and personal injuries to third parties caused by the continued serving of alcohol to the patron of the bar.
Steven Newton Bergman was killed while driving his pickup on Highway 95 near Athol, Idaho, when he was struck head-on in his own lane by a vehicle driven by Terri Lynn Henry. Mary Ruth Bergman brought this action both for the wrongful death of her husband and individually for injuries she suffered as a passenger in the Bergman pickup.1
Hagadone Hospitality Corporation, doing business as the Holiday Inn in Coeur d’Al-ene, and two of its employees, Jane Does I and II, were joined as defendants for allegedly continuing to serve alcoholic beverages to Henry knowing that she was becoming “extremely and dangerously intoxicated,” and further knowing that she would be operating a motor vehicle while in an “extremely impaired condition.”
After filing an Answer alleging that Bergman failed to state a claim against the defendants upon which relief could be granted, Hagadone Hospitality filed a motion for judgment of dismissal on the pleadings pursuant to I.R.C.P. 12(c). The district court granted the motion dismissing the complaint against Hagadone Hospitality and Jane Does I and II, basically on the ground that Idaho did not recognize, at that time, a cause of action based on “dram shop” liability.2
In Meade v. Freeman, 93 Idaho 389, 462 P.2d 54 (1969), this Court held that, in the absence of a specific statute, the vending of alcoholic beverages to an obviously intoxicated individual could not be the proxi[261]*261mate cause of damage to third parties resulting from the tortious or unlawful acts of the obviously intoxicated individual. Later, in Alegria v. Payonk, 101 Idaho 617, 619 P.2d 135 (1980), the Court overruled Meade in part, stating:
We therefore declare that [Meade], to the extent it infers that under common-law rule and present statutes the vending of intoxicants can never be the proximate cause of damage to third parties resulting from the tortious or unlawful acts of the consumer, is overruled.
Id. at 621, 619 P.2d at 139.
The alleged facts in Alegría involved a defendant, Payonk, who was under the legal drinking age and to whom two tavern owners continued to serve alcoholic beverages well after he was obviously intoxicated. The Court noted that it saw no reason why a purveyor of spirits should be exempt from the general duty “one owes to every person in our society to use reasonable care to avoid injury to the other person in any situation in which it could be reasonably anticipated or foreseen that a failure to use such care might result in such injury.” (Emphasis added). Alegria, 101 Idaho at 619, 619 P.2d at 137, quoting from Kirby v. Sonville, 286 Or. 339, 594 P.2d 818, 821 (1979). The Court then proceeded with the following analysis:
And in Harper v. Hoffman, 95 Idaho 933, 523 P.2d 536 (1974), this Court stated:
Every person has a general duty to use due or ordinary care not to injure others, to avoid injury to others by any agency set in operation by him, and to do his work, render services or use his property as to avoid such injury. 95 Idaho at 935, 523 P.2d at 588, quoting from Whitt v. Jarnagin, 91 Idaho 181, 188, 418 P.2d 278, 285 (1966).
In determining whether such duty has been breached by the allegedly negligent party, his conduct is measured against that of an ordinarily prudent person acting under all the circumstances and conditions then existing. Nagel v. Hammond, 90 Idaho 96, 408 P.2d 468 (1965). We perceive no justification for excusing the licensed vendor of intoxicants from the above general duty to which each person owes all others in our society. (Emphasis added).
Alegria, 101 Idaho at 619, 619 P.2d at 137.
This Court then applied the above -analysis to facts before it:
The “negligent entrustment” tort approved in Kinney [v. Smith, 95 Idaho 328, 508 P.2d 1234 (1973)] is a recognition of the risk of injury which exists when two ingredients are combined; the automobile and an incompetent or incapacitated driver. In Kinney, we said that a party may be liable for providing an intoxicated individual with an automobile. The issue in this case is the converse, i.e., should a party ever be held liable for providing the driver of an automobile with intoxicants.
In ruling on the correctness of the summary judgment entered in this case, we must determine “whether [appellants’] injury and the manner of its occurrence [were] so highly unusual that we can say as a matter of law that a reasonable man, making an inventory of the possibilities of harm which his conduct might produce, would not have reasonably expected the injury to occur. Kirby v. Sonville, supra. We are constrained to hold that, under the facts alleged at this stage of the proceedings, the question is not one of law but of fact, and should be resolved not by the court but the jury. It appears to this Court that if appellants are able to prove by a preponderance of the evidence that respondents knew or reasonably should have known that the intoxicated minor Payonk would operate an automobile upon leaving their establishment, in addition to proving the allegations of the complaint, a reasonable jury could conceivably find liability. (Emphasis added).
Id. 101 Idaho at 620, 619 P.2d at 138.
Thus, this Court in Alegría applied the rule that there is “no justification for excusing the licensed vendor of intoxicants from the ... general duty which each person owes all others” to its instant facts, [262]*262which involved the serving of alcohol to a minor who was obviously intoxicated.
Five years later in Estates of Braun v. Cactus Pete’s, Inc., 107 Idaho 484, 690 P.2d 939 (App.1985), the Idaho Court of Appeals applied the Alegría standard to a case involving the vending of alcoholic beverages to an obviously intoxicated adult, reasoning:
We do not believe that such a determination should be removed from the province of the jury simply because the intoxicated consumer’s age exceeds the statutory minimum. In a given factual context, the chronological immaturity of an underage alcohol consumer might make it more foreseeable that injury would result from his intoxication than if the consumer were legally old enough to drink. However, the fact that the consumer is of legal age does not make the possible consequences of his intoxication so less foreseeable that a jury would have to find that the vendor could not reasonably have foreseen injuries resulting from the tortious conduct of the intoxicated consumer. (Emphasis added).
Id. at 486, 690 P.2d at 941.
Estates of Braun involved a tavern in Jackpot, Nevada, but the accident later occurred in Idaho between Idaho residents. This Court subsequently vacated the Court of Appeals decision, noting that the Court of Appeals erroneously decided the choice of law issue there involved and should have applied Nevada law, which does not recognize a dram shop cause of action. Nevertheless, Justice Bakes, writing for the majority, acknowledged the Alegría rule while reversing the Court of Appeals on the conflict of laws issue:
In Alegria v. Payonk, 101 Idaho 617, 619 P.2d 135 (1980), this Court held that such a cause of action would be recognized in Idaho, at least as to minors. In Aleg-ría, the general duty to use reasonable care was noted. In discussing this general duty, Justice Donaldson wrote: “We perceive no justification for excusing the licensed vendor of intoxicants from the above general duty which each person owes all others in our society.” However, application of conflict of law rules directs us to conclude that the district court correctly applied Nevada law. It is undisputed that the courts of Nevada would not recognize a cause of action against the casino under these facts. (Emphasis added).
Estates of Braun v. Cactus Pete’s, Inc., 108 Idaho 798, 702 P.2d 836 (1985).
Applying the Alegría standard to the facts before us, as well as the reasoning of the Court of Appeals in Estates of Braun, we hold that a cause of action does lie against a licensed vendor of spirits for negligently continuing to serve alcoholic beverages to an obviously intoxicated adult. We see no reason for distinguishing between serving liquor to a minor and an adult when either is obviously intoxicated. The consequential factor is not whether the individual is of legal age, but whether that individual is so obviously intoxicated that harm to a third party is foreseeable. Such an issue of foreseeability is one where reasonable minds could draw differing inferences, and should be resolved by the trier of fact. Estates of Braun, supra.
Finally, given the fact that the Idaho Legislature subsequently has passed a dram shop act, today’s ruling only shall apply prospectively, that is, only to this case and other causes of action arising subsequent to September 20, 1985, which have not yet come to final judgment. See Jones v. Watson, 98 Idaho 606, 608, 570 P.2d 284 (1977).
Reversed and remanded for proceedings consistent herewith. Costs to appellants, no attorney fees awarded.