dissenting:
It isn’t entirely clear whether the majority is disposing of this case on the basis that parental immunity precludes the joining of the parent Garren in the third party complaint for contribution, or whether the majority is concluding that Garren has not committed any actionable tort.1 If it were the latter, I would be inclined to concur were it not for the fact that that issue was not raised below or on appeal. It would therefore be unfair to the parties to decide the case on that legal basis at this stage of the proceedings. However, on the assumption that the majority opinion disposes of the appeal on the ground that “[t]he doctrine of parental immunity is dispositive in this case,” ante at 561, and that because of that immunity no third party complaint for contribution can be brought against the parent Garren, I am inclined to dissent.
I
I do not believe that the majority’s adoption of the doctrine of parental immunity in this case can be reconciled with this Court’s abrogation of interspousal immunity in Rogers v. Yellowstone Park Co., 97 Idaho 14, 539 P.2d 566 (1974). In my mind, the paramount rationale traditionally advanced in support of both parental and interspousal immunity has been the preserva*207tion of the family unit. Since that argument was previously rejected by a majority of this Court, we should be consistent, follow our decision in Yellowstone, and reject the doctrine of parental immunity. As Justice Shepard observed in his Yellowstone dissent, courts which have abolished inter-spousal immunity “have subsequently and logically been required to abolish the immunity between parent and child for negligent torts.” Id. at 23, 539 P.2d at 575 (Shepard, J., dissenting).
In the case at bar, Justice Shepard, now speaking for the majority, asserts that it would be difficult, if not impossible, for this Court to establish a standard of care to be applied by the finder of fact in determining whether a parent was negligent in supervising his child. Not surprisingly, this same argument was advanced by Justice Shepard in his Yellowstone dissent, but was apparently found to be unpersuasive by the majority in that case. The reappearance of a dissenting rationale in this majority opinion will no doubt cause confusion in the trial courts with respect to the continuing vitality of the Yellowstone rule. I, too, dissented in Yellowstone, and for some of the same reasons set forth by Justice Shepard in his dissent. I still do not favor the abrogation of any type of interfamilial immunity. However, for the sake of consistency, we should adhere to the rationale expressed in Yellowstone.
II
Furthermore, it is one thing to cloak a family member with immunity when he is being sued directly by another family member, as was the case in Yellowstone. It is quite another matter to invoke the doctrine against a third party as the Court is doing here.2 In 1971, our legislature enacted I.C. § 6-803, the “Contribution Among Joint Tortfeasors” statute. That statute specifically provides that a defendant in a tort action can bring a claim for contribution. The majority opinion has, in effect, given precedence to the 1891 decision of the Mississippi Supreme Court in Hewellette v. George, 68 Miss. 703, 9 So. 885 (1891), which apparently started this common law doctrine, over a 1971 pronouncement of the Idaho legislature.
The Supreme Court of Florida has recently faced this same issue in Shor v. Paoli, 353 So.2d 825 (Fla.1977). The court held that, notwithstanding the fact that a spouse is immune to direct action by the other spouse, a third party tortfeasor can sue to obtain contribution from the negligent spouse. The Florida court adopted the following rationale in support of its decision:
“ ‘The doctrine of family or interspousal immunity is based on the desirability of the preservation of the family unit. The law of contribution of joint tortfeasors is meant to apportion the responsibility to pay innocent injured third parties between or among those causing the injury. “ ‘In the case at bar it was determined that both Paoli [the original defendant] and Shor [the negligent wife] caused the injury. Shor’s husband collected 100% of his damages from Paoli. To say that Shor doesn’t have to contribute and account for her wrongdoing would be unfair to Paoli and a windfall to Shor. This is not a case where the husband sued the wife on account of her negligence so we are not doing any real damage to the doctrine. This is a case where the joint tortfeasor sued the joint tortfeasor and we are ruling in support of [the contribution] statute.’ ” Id. at 826.
Since we are ruling today for the first time on the issue of parental immunity, the joint tortfeasors contribution statute adopted by the 1971 Idaho legislature should take precedence over any common law doctrine which immunizes the parent from the consequences of his tort.
*208The inequity possible under the holding of the majority in this case is immediately evident. If the third party is minimally negligent — for example, 10% — and the immune parent is primarily at fault — for example, 90% — the third party will, according to the majority, be saddled with the entire judgment while the seemingly culpable parent bears no loss whatsoever. If the parent and the child are truly one economic unit, as the majority approvingly asserts by its quotation from the Holodook case, the parent profits by his own wrongdoing.
This inequity has spawned an analogous line of authority in worker’s compensation cases. Numerous state courts have permitted third party tortfeasors to recover over against the statutorily immune employer in either contribution or indemnity, notwithstanding statutory exclusivity provisions explicitly limiting the employer’s exposure. E. g., Sunspan Eng’r & Constr. Co. v. Spring-Lock Scaffolding Co., 310 So.2d 4 (Fla.1973); Lambertson v. Cincinnati Corp., 257 N.W.2d 679 (Minn.1977); Carlson v. Smogard, 298 Minn. 362, 215 N.W.2d 615 (1974); Dole v. Dow Chemical Co., 30 N.Y.2d 143, 331 N.Y.S.2d 382, 282 N.E.2d 288 (1972); United States Fidelity & Guaranty Co. v. Kaiser Gypsum Co., Inc., 273 Or. 162, 539 P.2d 1065 (1975). See generally 2A Larson’s Workmen’s Compensation Law, § 76 (1974) (“Third Party’s Action Over Against Negligent Employer”). These authorities recognize the basic inequity observed by the Florida Supreme Court in Shor v. Paoli, supra, i. e., that to immunize the exempt party from a third party complaint either provides a windfall to the exempt party or saddles the third party with liability only distantly related to its relative fault.
Ill
Finally, when this case goes to trial, the appellants should not be precluded from including the parent Garren’s comparative negligence in the special verdict, notwithstanding the fact that, as a result of the majority opinion, he will not be a party to the action. Non-parties can be included in the general apportionment of comparative fault. Connar v. West Shore Equipment of Milwaukee, Inc., 68 Wis.2d 42, 227 N.W.2d 660 (1975); Lines v. Ryan, 272 N.W.2d 896 (Minn.1978); Heft & Heft, Comparative Negligence Manual, § 8.131 (1978). See Tucker v. Union Oil Co. of California, 100 Idaho 590, 603 P.2d 156 (1979); Jensen v. Shank, 99 Idaho 565, 585 P.2d 1276 (1978). Even though an actor in the controversy may be immune from liability, his comparative causative negligence should nonetheless be included in the jury’s apportionment. The party defendant will then have the opportunity to place the blame on the non-party actor. Only by including the non-party in the apportionment will the jury’s special verdict represent a true and accurate picture of the relative fault of all the actors contributing to the injury.
. This problem is caused primarily by the majority’s extensive reliance on Holodook v. Spencer, 36 N.Y.2d 35, 364 N.Y.S.2d 859, 324 N.E.2d 338 (1974), a case in which the court held that a parent’s failure to supervise a child is not a legally cognizable tort.
. It should be noted that one of the traditional arguments advanced in favor of the doctrine disappears when a third party is involved. Some courts feel that permitting children to sue their parents places a strain on the family relationship. In a case such as the one at bar, however, it will ordinarily be in the best interests of both parent and child to place the blame on the third party rather than each other.