dissenting.
Although I recognize in these circumstances some justification in providing plaintiffs with a remedy against the United States, I do not believe we are at liberty to custom-fashion one just for their purposes. The plaintiffs, however, would not be left without any recognized remedy as under Illinois law there exists a cause of action against the army sergeant.
The question is whether the Federal Tort Claims Act provides relief against the United States for an alleged violation of the Illinois Dram Shop Act. The Federal Tort Claims Act requires as a prerequisite to liability a “negligent or wrongful act” by a government employee while acting within the scope of his employment.1 In addition, the Act provides that a cause of action against the United States lies only “in accordance with the law of the place where the act or omission occurred.” Starting with the assumption that the legislative purpose is expressed by the ordinary meaning of that statutory language, the Supreme Court in Richards v. United States, 369 U.S. 1, 9, 82 S.Ct. 585, 591, 7 L.Ed.2d 492 (1962), found “that it would be difficult to conceive of any more precise language Congress could have used to command application of the law of the place where the negligence occurred than the words it did employ in the Tort Claims Act.” (Emphasis added.)
Bearing in mind as we must that it is axiomatic that waivers of sovereign immunity by Congress are not to be construed expansively, but are to be strictly interpreted, United States v. Sherwood, 312 U.S. 584, 590, 61 S.Ct. 767, 771, 85 L.Ed. 1058 (1940); United States v. Sheehy, 541 F.2d 123 (1976), we must look to the law of Illinois as “the law of the place where the negligence occurred” to see if it may support a claim under the Act.
As the majority concedes, the Illinois Dram Shop Act2 is a strict liability statute. The presence or absence of negligence is totally irrelevant to that statute. The majority further concedes that the Dram Shop Act is the exclusive civil remedy in Illinois against tavern operators for intoxication injuries. Since the Federal Tort Claims Act requires negligence but the Dram Shop Act does not, perhaps some support may be found in the common law of Illinois. The Illinois Supreme Court, in a case cited by the majority, while recognizing that there *882may be “some merit” in creating a new rule of liability, however, has clearly held there is and has been no common law of Illinois on the subject.
The historical background of the [Dram Shop Act] seems to disclaim any notion that it was intended to complement a common-law remedy against the tavern owners and operators. We would be delving in judicial metaphysics if we were to say that the legislature intended to provide a remedy in addition to a common-law remedy which existed but had not as yet been declared by the courts. Legislative intent must be ascertained through examination of the practical considerations to which the legislature directed itself when enacting section 5 of the original statute. These considerations are: the fact that the legislature found no common-law precedent for the liability of a tavern operator for the mere sale of intoxicating liquor, and the fact that the temperance forces were demanding that the cost of the intoxicating liquor should bear the damages it caused. The inescapable conclusion is that the legislature did not intend the act to be complementary to a common-law right it knew nothing about, but, on the contrary, intended to create a remedy in an area where it believed none existed.
Cunningham v. Brown, 22 Ill.2d 23, 28-29, 174 N.E.2d 153, 156 (1961). In the case of Colligan v. Cousar, 38 Ill.App.2d 392, 187 N.E.2d 292 (1963), also cited by the majority, involving a conflict of law question, the appellate court for the First District speculated about what the Illinois common law might have been in the absence of the Dram Shop Act. That case is of no consequence to us since it must be recognized that Illinois does not in fact have any common law on the subject, but on the other hand does have the Dram Shop Act as alleged in plaintiffs’ complaint.
To avoid this “law of the place” the majority begins by stating that “we are not required to find a common law negligence action” resulting from intoxication because plaintiffs’ remedy is provided by the Federal Tort Claims Act. It seems to me we have only circled around Illinois law and are back where we started.
Recognizing that the Federal Tort Claims Act specifically requires a negligent or wrongful act which must be shown to be the proximate cause of the injury, the majority then attempts to graft those two alien concepts on to the Illinois Dram Shop Act. To accomplish that, the majority in addition to Colligan v. Cousar, supra, the inapplicable conflicts case, and Cunningham v. Brown, supra, which is adverse to plaintiffs, relies on Ney v. Yellow Cab Co., 2 Ill.2d 74, 117 N.E.2d 74 (1954). Yellow Cab stands for nothing more than the proposition that a common law action lies against an owner who left the keys in his car permitting a third party to take the car resulting in injury to another. Neither the Dram Shop Act nor the Federal Tort Claims Act are involved in any way in that negligence case.
The trial court relying on Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427 (1953), held that the waiver of sovereign immunity did not extend to an action under the strict liability provisions of the Illinois Dram Shop Act. The majority distinguishes Daiehite. Daiehite, nevertheless, reveals a recognition by the Supreme Court that the doctrine of strict liability is to be distinguished from a negligence theory. 346 U.S. at 44, 73 S.Ct. at 972. Later, the Supreme Court in Laird v. Nelms, 406 U.S. 797, 92 S.Ct. 1899, 32 L.Ed.2d 499 (1971), reaffirmed Daiehite saying that liability under the Federal Tort Claims Act is “not to be broadened beyond the intent of Congress by dressing up the substance of strict liability for ultra-hazardous activities in the garments of common-law trespass. Id. at 802, 92 S.Ct. at 1902. The Court concluded that the Act does “not authorize the imposition of strict liability of any sort upon the Government.” (Emphasis added.) Id. at 803, 92 S.Ct. at 1902.
The majority then proceeds to hold that “if plaintiffs can prove that under Illinois law the Army employees were negligent in serving drinks to [the army sergeant] be*883cause [the sergeant] was intoxicated or for any other reason which would negate his self-control and thus establish the required causation,” then plaintiffs have established the negligence and causation the Federal Tort Claims Act requires. Up until now there has been no negligence law in Illinois, statutory or common law, applicable to these circumstances, and therefore no case law interpretation or guidance in the application of a negligence standard. Therefore, further federal case law development in interpreting and applying the majority holding will be necessary. The Dram Shop Act as it is written is recognized by the majority to the extent that it imposes a limitation on damages which the majority holds limits plaintiffs’ damages. I believe it would have been more consistent for the majority also to have disregarded the penal damage limitation of the Dram Shop Act. I know of no statutory limitation in Illinois on damages resulting from negligence. Some of the Illinois Dram Shop Act is held to be applicable, some of it is ignored. I do not believe Illinois law submits so easily to this creative manipulation in order to provide a sufficient “law of the place” to support a Federal Tort Claims Act cause of action against the United States.
The Federal Tort Claims Act requires that the alleged negligent government employee be acting within the scope of his employment. Plaintiffs’ amended complaint also fails to satisfy that requirement.
In my view the majority has drafted and enacted an original hybrid law for Illinois with no other purpose than to present to plaintiffs a cause of action under the Federal Tort Claims Act. Were I a member of the Legislature of the State of Illinois, I might vote for it, but since I am not, I respectfully dissent.
. 28 U.S.C. § 1346(b).
. Illinois Dram Shop Act, Ill.Rev.Stat. ch. 43, § 135.