OPINION
VOLINN, Bankruptcy Judge.
I. INTRODUCTION
A.
The plaintiff, Bruce E. Wilson, in his complaint alleged that the defendant (debt- or), on November 5, 1980, was the owner and operator of a Corvette automobile in which plaintiff was a passenger; that defendant operated said vehicle while he was
voluntarily intoxicated and was driving under the influence of said intoxicants, was aware of his intoxicated condition and was aware of the probable dangerous consequences of his conduct, and willfully and deliberately failed to avoid said consequences. At said time and place, defendant caused the vehicle he was operating to run off State Highway 33 and collide with a Southern California Edison Pole. T.R. 7 (Appellant’s Excerpts of Trial Record).
The complaint further alleged or implied that the claim resulted from defendant’s “grossly careless, reckless, negligent and wanton conduct.”
Plaintiff seeks damages for serious injury suffered by him as a result of the defendant’s wrongful conduct contending that liability for such misconduct is nondis-chargeable by virtue of 11 U.S.C. § 523(a)(6).
The defendant answered that plaintiff’s cause of action was “in the nature of negligence and not the result of willful and malicious injury caused by the debtor.” Defendant also filed and noted for hearing a Motion to Dismiss Adversary Proceeding for Failure to State a Claim.
B.
At the hearing on the motion to dismiss, plaintiff proffered affidavits from witnesses who were in vehicles passed by the Corvette who observed that its speed was in excess of 80 miles per hour and that plaintiff was waving his arms and looking panic stricken. T.R. 40-43. These statements were not considered by the court below.
Plaintiff in his statement of the case avers that defendant was arrested at the scene for violation of California Vehicle Code § 23101 (driving under the influence of liquor and causing injury) and pled guilty to that charge. The police estimated that his speed at the time of the accident was 83.8 miles per hour. It is not clear how these facts became part of the record but they are not challenged and are implicitly accepted by appellee in his responding brief.
[238]*238II. RULING OF TRIAL COURT
The trial court in entering its memorandum of decision and judgment, while adverting to findings and conclusions appears to have rendered its judgment on the legal issue tendered by the motion to dismiss. The court focused on plaintiff’s allegation that his injury and damage resulted from debtor’s grossly careless, reckless, negligent and wanton misconduct which plaintiff contended should be held nondischargeable under 11 U.S.C. § 523(a)(6). The court concluded that intoxication unaccompanied by specific intention to injure or harm is not a basis, under § 523(a)(6), for nondis-chargeability of the claim of a party whose injury was caused by the drunk driver. The court cited in support of its conclusion In re Bryson, 3 B.R. 593, 6 B.C.D. 199, 1 C.B.C.2d 1038 (Bkrtcy., N.D.Ill.1980), In re Ankowiak, 9 B.R. 746, 3 C.B.C.2d 964 (Bkrtcy., N.D.Ill.1981), In re Naser, 7 B.R. 116, 3 C.B.C.2d 211 (Bkrtcy., W.D.Wisc., 1980), In re Donnelly, 6 B.R. 19, 6 B.C.D. 1081 (Bkrtcy.D.Ore.1980) and In re Kriger, 2 B.R. 19, 5 B.C.D. 1380 (Bkrtcy.D.Ore.1979).
Appellee cites the foregoing cases to this court and urges that they are determinative because an intoxicated driver who does not intend harm is by definition not “willful and malicious” as required by § 523(a)(6). Appellee states:
Nowhere is it alleged that appellee intended to harm appellant. Defendant may have intentionally become intoxicated and may have intentionally drove {sic) at high speed, but he did not intend to injure or harm appellee. Nor is there a substantial certainty that appellee’s acts would result in harm to plaintiff. Defendant’s acts may have been reckless, but they do not present acts which show a substantial certainty of injury to appellant.” 2
Appellee recognizes that the case was decided in the context of a motion to dismiss, stating: “Finally appellant is unable in his pleadings to state a prima facie case to show that appellee acted willfully. Further, it is unlikely that appellant, at trial, could make an offer of proof to prove that appellee acted willfully to injure appellant.”
III. DISCUSSION
A. Application of Tinker v. Colwell
Two lines of authority have developed in drunk driving discharge cases under 11 U.S.C. § 523(a)(6). These eases for the most part focus their respective views on the applicability of Tinker v. Colwell, 193 U.S. 473, 24 S.Ct. 505, 48 L.Ed. 754 (1904). In that case a husband contended that the bankrupt’s discharge could not bar a claim for the tort of criminal conversation or seduction of his wife. The bankrupt contended that there was no evidence that his conduct was “willful or malicious.” The court in effect held that if the conduct is gross or wanton, it is equivalent to specific intent to injure or harm. Tinker has been interpreted in many subsequent cases as creating a reckless or lesser standard than the literal specific intent standard of § 17a(8), the Bankruptcy Act predecessor of § 523(a)(6). Present controversy has been fueled by a legislative history note which states that Tinker has been overruled by § 523(a)(6) to the extent that it held that a looser standard than deliberate or intentional was meant by the statutory “willful.” [House Report No. 95-595, 95th Congress, 1st Sess. 363 (1977), U.S.Code Cong. & Admin.News 1978, p. 5787.] Despite that statement, the exact language “willful and malicious” was retained in the new legislation. See discussion in 1 Norton Bankruptcy Law and Practice, § 27.-53 and cases cited therein, particularly In re Bryson, supra, where a drunk driver ran a red light, crossed over center line and ran head on into plaintiff’s vehicle. In Bryson the court held that because there was no evidence that the debtor intended harm to plaintiff, the discharge would bar recovery.
[239]*239There is a variant in the rejection of Tinker’s less than willful standard which was articulated by In re Rainey, supra, which dealt with a 15-year-old drunk driver. Rainey’s approach involved an examination of whether or not the injury was a necessary consequence of the drunken behavior. It is contended that this is a more objective test than the wanton or reckless standard. Concededly, Rainey’s standard is different, but it appears to exchange one subjective criterion for another. In any event, as indicated below, we are of the view that the standard articulated in Rai-ney is neither productive nor appropriate.
The present trend, however, seems to be toward revitalizing Tinker. An excellent summary of present caselaw is found in In re Callaway, 41 B.R.
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OPINION
VOLINN, Bankruptcy Judge.
I. INTRODUCTION
A.
The plaintiff, Bruce E. Wilson, in his complaint alleged that the defendant (debt- or), on November 5, 1980, was the owner and operator of a Corvette automobile in which plaintiff was a passenger; that defendant operated said vehicle while he was
voluntarily intoxicated and was driving under the influence of said intoxicants, was aware of his intoxicated condition and was aware of the probable dangerous consequences of his conduct, and willfully and deliberately failed to avoid said consequences. At said time and place, defendant caused the vehicle he was operating to run off State Highway 33 and collide with a Southern California Edison Pole. T.R. 7 (Appellant’s Excerpts of Trial Record).
The complaint further alleged or implied that the claim resulted from defendant’s “grossly careless, reckless, negligent and wanton conduct.”
Plaintiff seeks damages for serious injury suffered by him as a result of the defendant’s wrongful conduct contending that liability for such misconduct is nondis-chargeable by virtue of 11 U.S.C. § 523(a)(6).
The defendant answered that plaintiff’s cause of action was “in the nature of negligence and not the result of willful and malicious injury caused by the debtor.” Defendant also filed and noted for hearing a Motion to Dismiss Adversary Proceeding for Failure to State a Claim.
B.
At the hearing on the motion to dismiss, plaintiff proffered affidavits from witnesses who were in vehicles passed by the Corvette who observed that its speed was in excess of 80 miles per hour and that plaintiff was waving his arms and looking panic stricken. T.R. 40-43. These statements were not considered by the court below.
Plaintiff in his statement of the case avers that defendant was arrested at the scene for violation of California Vehicle Code § 23101 (driving under the influence of liquor and causing injury) and pled guilty to that charge. The police estimated that his speed at the time of the accident was 83.8 miles per hour. It is not clear how these facts became part of the record but they are not challenged and are implicitly accepted by appellee in his responding brief.
[238]*238II. RULING OF TRIAL COURT
The trial court in entering its memorandum of decision and judgment, while adverting to findings and conclusions appears to have rendered its judgment on the legal issue tendered by the motion to dismiss. The court focused on plaintiff’s allegation that his injury and damage resulted from debtor’s grossly careless, reckless, negligent and wanton misconduct which plaintiff contended should be held nondischargeable under 11 U.S.C. § 523(a)(6). The court concluded that intoxication unaccompanied by specific intention to injure or harm is not a basis, under § 523(a)(6), for nondis-chargeability of the claim of a party whose injury was caused by the drunk driver. The court cited in support of its conclusion In re Bryson, 3 B.R. 593, 6 B.C.D. 199, 1 C.B.C.2d 1038 (Bkrtcy., N.D.Ill.1980), In re Ankowiak, 9 B.R. 746, 3 C.B.C.2d 964 (Bkrtcy., N.D.Ill.1981), In re Naser, 7 B.R. 116, 3 C.B.C.2d 211 (Bkrtcy., W.D.Wisc., 1980), In re Donnelly, 6 B.R. 19, 6 B.C.D. 1081 (Bkrtcy.D.Ore.1980) and In re Kriger, 2 B.R. 19, 5 B.C.D. 1380 (Bkrtcy.D.Ore.1979).
Appellee cites the foregoing cases to this court and urges that they are determinative because an intoxicated driver who does not intend harm is by definition not “willful and malicious” as required by § 523(a)(6). Appellee states:
Nowhere is it alleged that appellee intended to harm appellant. Defendant may have intentionally become intoxicated and may have intentionally drove {sic) at high speed, but he did not intend to injure or harm appellee. Nor is there a substantial certainty that appellee’s acts would result in harm to plaintiff. Defendant’s acts may have been reckless, but they do not present acts which show a substantial certainty of injury to appellant.” 2
Appellee recognizes that the case was decided in the context of a motion to dismiss, stating: “Finally appellant is unable in his pleadings to state a prima facie case to show that appellee acted willfully. Further, it is unlikely that appellant, at trial, could make an offer of proof to prove that appellee acted willfully to injure appellant.”
III. DISCUSSION
A. Application of Tinker v. Colwell
Two lines of authority have developed in drunk driving discharge cases under 11 U.S.C. § 523(a)(6). These eases for the most part focus their respective views on the applicability of Tinker v. Colwell, 193 U.S. 473, 24 S.Ct. 505, 48 L.Ed. 754 (1904). In that case a husband contended that the bankrupt’s discharge could not bar a claim for the tort of criminal conversation or seduction of his wife. The bankrupt contended that there was no evidence that his conduct was “willful or malicious.” The court in effect held that if the conduct is gross or wanton, it is equivalent to specific intent to injure or harm. Tinker has been interpreted in many subsequent cases as creating a reckless or lesser standard than the literal specific intent standard of § 17a(8), the Bankruptcy Act predecessor of § 523(a)(6). Present controversy has been fueled by a legislative history note which states that Tinker has been overruled by § 523(a)(6) to the extent that it held that a looser standard than deliberate or intentional was meant by the statutory “willful.” [House Report No. 95-595, 95th Congress, 1st Sess. 363 (1977), U.S.Code Cong. & Admin.News 1978, p. 5787.] Despite that statement, the exact language “willful and malicious” was retained in the new legislation. See discussion in 1 Norton Bankruptcy Law and Practice, § 27.-53 and cases cited therein, particularly In re Bryson, supra, where a drunk driver ran a red light, crossed over center line and ran head on into plaintiff’s vehicle. In Bryson the court held that because there was no evidence that the debtor intended harm to plaintiff, the discharge would bar recovery.
[239]*239There is a variant in the rejection of Tinker’s less than willful standard which was articulated by In re Rainey, supra, which dealt with a 15-year-old drunk driver. Rainey’s approach involved an examination of whether or not the injury was a necessary consequence of the drunken behavior. It is contended that this is a more objective test than the wanton or reckless standard. Concededly, Rainey’s standard is different, but it appears to exchange one subjective criterion for another. In any event, as indicated below, we are of the view that the standard articulated in Rai-ney is neither productive nor appropriate.
The present trend, however, seems to be toward revitalizing Tinker. An excellent summary of present caselaw is found in In re Callaway, 41 B.R. 341, 344 (Bkrtcy.E.D.Pa.1984), which states: “Clearly, the trend in recent caselaw is to find debts arising from injuries caused by intoxicated drivers nondischargeable under § 523(a)(6). We are inclined to support this view....” See also the discussion in “Accidental ‘Willful and Malicious Injury’: The Intoxicated Driver and Section 523(a)(6),” 1 Bankr. Dev.J. 135, 152-54 (1984), and cases cited therein: In re Greenwell, 21 B.R. 419 (S.D. Ohio 1982), In re Askew, 22 B.R. 641 (Bankr.M.D.Ga.1982), and In re Wooten, 30 B.R. 357 (Bankr.N.D.Ala.1983). One of the cases cited in Wooten is In re Rice, 18 B.R. 562 (Bankr.N.D.Ala.1982), where an innocent bystander was shot by a pistol-wielding participant in a barrom brawl. The court concluded: “Miscreants who choose to engage in gun battles in public places, endangering the lives of innocent people, should not find a haven for their wrong doing in the Bankruptcy Court.” (emph. supp.) Wooten at 359, quoting Rice at 566. Such a situation is analogous to that of the voluntarily intoxicated tortfeasor under consideration here. Given this factual setting, we do not believe Tinker to be applicable as will be noted below.
B. Standard of Review on Motion to Dismiss
In general, the allegations of a complaint and all inferences to be fairly drawn from them are taken as true. Dismissal is warranted only where plaintiff has not stated and cannot state a claim. Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957), and In re Verco Industries, 27 B.R. 615 (Bkrtcy. 9th Cir., 1982) stating: “The dismissal under Rule 12(b)(6) is likely to be granted only in the unusual case in which a claimant includes allegations that show on the face of the complaint that there is an insuperable bar to relief....”
IY. RELATIONSHIP OF § 523(a)(6) TO VOLUNTARY INTOXICATION
As indicated, the extent of Tinker’s current viability is subject to controversy. In any event, little if any illumination will be cast on the dischargeability of a claim against a drunk driver by considering the relevance or logic of this early case dealing with the tor,t of criminal conversation.3 The cases discussed and cited above, while attempting to distinguish Tinker, essentially demonstrate that its application to drunk driving eases is inapposite. We are of the view that because the element of intent is inherent in voluntary intoxication, any discussion of a less than willful standard (thereby invoking Tinker) is irrelevant.
[240]*240Plaintiff’s complaint is stated in terms of an intentional tort brought about by a defendant who voluntarily and willfully rendered himself bereft of the capacity to operate his vehicle with reasonable competence and due regard for the safety of others. The question presented by such a claim is if a person may intentionally initiate and continue a course leading to intoxication and then claim exculpation from or inapplicability of § 523(a)(6) because the injury or result of his drunkenness was non-volitional or unintended. We think not. The necessary specific intent is present when the election to embark upon such a course with its attendant risks occurs. The inherent danger of driving while intoxicated supplies the necessary maliciousness. If the consequent lack of capacity or failure to exercise reasonable care in the operation of the vehicle causes the injury, the requirements of § 523(a)(6) are met.
CONCLUSION
One who voluntarily embarks upon a course, which a reasonable person knows, or should know, may significantly impair ability to exercise reasonable care, should be held to have intended the consequences which occur as a result of the diminished capacity.
We hold that a driver who ingests an intoxicating substance should be subject to a claim of nondischargeability under 11 U.S.C. § 523(a)(6), if it be proved that lack of reasonable care resulting from intoxication caused the accident and injury. On the record before us the complaint was not subject to dismissal.
Reversed and remanded for further proceedings consistent herewith.