Cite as 329 Ark. 143 (1997)
In Parish v. Pitts, 244 Ark. 1239, 429 S.W.2d 45 (1968), this Court addressed the issue of abolishing the common-law principle of governmental immunity from tort actions and noted that "[t]he Legislature's broad investigative powers to determine facts and its greater flexibility in dealing with complex problems indicate a preference for a solution by statutory action." Id. at 1242. While a legislative deliberation was the preferred method to address the issue, this Court concluded that "considerations of public policy are not and never have been for determination by the legislature alone." Id., citing Oliver Wendell Holmes, The Common Law, 35 (1881).
Carr was decided in 1965 utilizing a rule of law from the early 1800s. In the 1800s, when the common-law rule was formulated, most people walked and some rode in horse-drawn carriages, no unreasonable risk to third persons was created by selling alcohol to a visibly intoxicated person or a minor. Today, patrons of bars and liquor stores no longer typically walk or ride on horses. They almost always travel by motor vehicle. The reality of modern life is evidenced by the fact that most drinking establishments and liquor stores provide patrons parking lots. Meade v. Freeman, 462 P.2d 54, 64-65 (Idaho 1969). See also, Right of Action at Common Law for Damages Sustained by Plaintiff in Consequence of Sale of Intoxicating Liquor or Habit-forming Drugs to Another, 120 A.L.R. 352 (1941); see generally, Bender, Tort Liability for Serving Alcohol: An Expanding Doctrine, 46 Mont. L. Rev. 381 (1985). Today, motor-vehicle crashes are the single greatest health hazard to people under the age of forty-five. Over 50% of all highway fatalities result from driving under the influence of alcohol. Over 250,000 people died in the United States in alcohol-related motor-vehicle accidents in the years between 1980-1990. Interim Report to the Nation from the Presidential Commission on Drunk Driving, p.1-2 (Dec. 13, 1995).
The law has undergone massive change since the 1800s. The ultimate test in determining the existence of a duty to use due care is found in the foreseeability that harm may result if care is not exercised. Common experience dictates that when a person is imbibing alcohol, that person reaches a level of toxicity after
