Red Flame, Inc. v. Martinez

HOWE, Chief Justice,

concurring:

¶ 14 I reluctantly concur that the Dram-shop Act is subject to the dictates of the comparative fault statute. I do so only because of the provisions of sections 78-27-37(2) and 78-27-38(3), which provide that a defendant who is strictly liable (like a dram-shop defendant) is liable only for its proportion of the total fault. It appears to me that the intent of the Dramshop Act as originally enacted was to make dramshops liable without regard to the fault of the intoxicated person, whose fault would seem to be greater and more proximate than the dramshop’s fault. I believe that Justice Durham is correct that the Dramshop Act was intended to be both punitive and regulatory as well as compensatory to injured third parties. However, with the enactment of the Liability Reform Act of 1986, the impact of the Dram-shop Act was diluted by the abolishment of joint and several liability. I am not sure the legislature intended that dilution, but I am constrained by the language of sections 78-27-37(2) and 78-27-38(3) to apply those sections in this dramshop case.