concurring and dissenting.
Although I concur in the disposition of this case, I do so on a much narrower basis than the majority. The discussion of common law duty found in the majority opinion is, for me, interesting but irrelevant.
My resolution of the duty issue is based upon the statutory provisions regulating the dispensing of liquor. The debate about dynamic principles of changing times and changing conditions is meaningless when the public policy of the state can be found in the statutes.
Being satisfied that A.R.S. § 4r-244(9) imposes a duty on a tavern owner to refrain from serving liquor to persons under 19 years of age, I concur in the disposition of this case.
On the issue of retrospective application, I dissent from the majority’s position. I believe that the principles set forth in Chevron Chemical Co. v. Superior Court, 131 Ariz. 431, 641 P.2d 1275, and in Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971) concerning retroactivity of decision have largely been ignored.
The decision today overrules a line of authority which is at least 40 years old. The majority maintains that the result was foreshadowed because there was a continual assault upon the old rule. All those assaults were in vain. Even the eloquent plea in Lewis v. Wolf, 122 Ariz. 567, 596 P.2d 705 (1979) did not move this court to change the law. Now some four years after Lewis v. Wolf we are doing so. In light of this history somehow the foreshadowed argument limps. It is worthy of note that the panel of the Court of Appeals which heard this case found the law so clear that a memorandum decision was issued affirming the denial of relief to the plaintiffs.
Another reason for non retroactive application of a decision is that substantial inequitable results may occur if it is applied retroactively. The majority’s answer to the claim of hardship flowing from this decision is that the acts were always criminal anyway. Regretfully, the majority overlooks the fact that under our doctrine of respondeat superior an innocent employer can be liable for the acts of his employees. The employer in such a case has not committed *522a criminal act but nevertheless he could be liable in damages.
There seems to be an assumption on the majority’s part that liability insurance will take care of any problem in retroactive application of liability. Any concern about the lack or extent of liability insurance to cover this new liability is however relegated to a footnote. Nor is there any consideration given to the probability that existing liability policies were written with premiums based on the former law, but retroactive application of the new ruling increases the loss exposure to an extent not anticipated.
Our sister state New Mexico, when faced with this same problem, found sound reasons to apply the new rule of law prospectively. Lopez v. Maez, 98 N.M. 625, 651 P.2d 1269 (1982). In my judgment we should have followed that example.