dissenting.
I agree with that portion of the Bakes, C.J. opinion which dissents. I further dissent and disagree with what I view as an unnecessarily truncated discussion of the issues.
The issue of dram shop liability in Idaho was addressed in Meade v. Freeman, 93 Idaho 389, 462 P.2d 54 (1969). There a majority of the Court rejected the assertion that common law dram show liability should be imposed in Idaho in the absence of a specific statute. The large portion of the two dissenting opinions in Meade were devoted to the argument that an early dram shop statute should be considered as still then effective.
Some eleven years later in Alegria v. Payonk, 101 Idaho 617, 619 P.2d 135 (1980), this Court, with different personnel, carved a narrow exception to the holding of Meade v. Freeman. The Court in Alegría carefully noted that plaintiffs alleged “that defendants sold, served and dispensed alcoholic beverages to Payonk, notwithstanding that defendants knew or should have known that Payonk was under the legal drinking age of nineteen years ...” and knew that he was actually, apparently, and obviously intoxicated. The Court further noted, “the narrow issue presented is whether in this state the sale of alcoholic beverages by a licensed vendor of such beverages to an actually apparently and obviously intoxicated person known to be a minor can be a contributing actual and proximate cause of the damage ...” In my view, the opinion in Alegría makes clear through its emphasis on the sale of intoxicants to a minor, that it constitutes an exception to the otherwise rule of Meade v. Freeman.
This Court next had the opportunity to address the question of common law dram shop liability in Idaho in the case of Estates of Braun v. Cactus Pete’s, Inc., 108 Idaho 798, 702 P.2d 836 (1985). The Court there reversed a decision of the Court of Appeals which would have purported to expand common law dram shop liability in Idaho. Therein this Court refused to so expand dram shop liability, holding that such decision was not necessary since the case in actuality presented only a conflicts of law question; i.e., did the law of Idaho or Nevada control the disposition of the case. It was held that the law of Nevada controlled, and Nevada law did not recognize common law dram shop liability.
The Court next addressed the question of dram shop liability in Idaho in Bergman v. Henry, 115 Idaho 259, 766 P.2d 729 (1988). The majority of the Court in Bergman appears to have relied upon the decision of the Court of Appeals in Estates of Brawn v. Cactus Pete’s, Inc., 108 Idaho 798, 702 P.2d 836 (1985), which as previously noted, was later overruled by this Court. Of more importance, however, is the concluding paragraph of the “majority” opinion wherein it is stated that Bergman “finally, given the fact that the Idaho legislature subsequently has passed a dram shop act, today’s ruling only shall apply prospectively, that is, only to this case and other causes of action arising subsequent to September 20, 1988, which have not yet come to final judgment.”
In Bergman v. Henry, it is well noted in the dissenting opinion of Bakes, J.:
The Court’s opinion does not state whether or not it is overruling Meade v. Freeman, supra. The majority opinion merely states, “We see no reason for distinguishing between serving liquor to a minor and an adult when either is obviously intoxicated.” Does that statement mean that Meade is overruled?
*381115 Idaho at 264, 766 P.2d at 734. The dissent of Bakes, J. goes on to state:
While the Court’s opinion recognizes that the Idaho legislature passed a “dram shop act,” I.C. § 23-808, effective April 3, 1986, it fails to recognize that that legislation is more narrowly drafted and tailored than the Court’s broad statement that “[w]e see no reason for distinguishing between serving liquor to a minor and an adult when either is obviously intoxicated.”
115 Idaho at 264, 766 P.2d at 734.
I suggest that the majority in today’s opinion is internally inconsistent. The majority first suggests that it makes no difference who held the actual license, and holds the alleged actual dispenser to liability. [In the next breath the majority tells us that the license is all important, and will be used to determine the potential liability of the license holder.]
I next suggest that the majority citations of I.C. §§ 23-603 and 23-605 are inapplicable to the instant case. Both statutes are precisely worded to make criminal the actual giving or dispensing of alcoholic beverages to minors or drunks. I view both statutes as carefully tailored, and I know of no rule of law which would apply vicarious criminal liability to the Coopers who had no part of such alleged service to a drunk, and in fact had no part of the operation of the tavern.
As correctly noted by today’s majority opinion, the facts of Alesna v. LeGrue, 614 P.2d 1387 (Alaska 1980), are similar to the instant case. The Alaska Supreme Court did in deed hold that licensees may be held civilly liable for violation of Alaska’s liquor laws. However, what today’s majority does not tell us about Alesna is that that decision was based on a specific Alaska statute providing that a liquor “licensee is solely responsible for the lawful conduct of the business licensed under this title ...” Today’s majority does not base its decision on any statute similar to that relied upon by the Alaska court in Alesna.
In 1986, rightly or wrongly, our legislature made a decision to codify dram shop type of liability in Idaho. I.C. § 23-808 provides as follows:
(1) The legislature finds that it is not the furnishing of alcoholic beverages that is the proximate cause of injuries inflicted by intoxicated persons and it is the intent of the legislature, therefore, to limit dram shop and social host liability; provided, that the legislature finds that the furnishing of alcoholic beverages may constitute a proximate cause of injuries inflicted by intoxicated persons under the circumstances set forth in subsection (3) of this section.
(3) A person who has suffered injury, death or any other damage caused by an intoxicated person, may bring a claim or cause of action against any person who sold or otherwise furnished alcoholic beverages to the intoxicated person, only if;
(a) The intoxicated person was younger than the legal age for the consumption of alcoholic beverages ... or
(b) The intoxicated person was obviously intoxicated at the time the alcoholic beverages were sold or furnished, and the person who sold or furnished the alcoholic beverages knew or ought reasonably to have known that the intoxicated person was obviously intoxicated.
(5) No claim or cause of action may be brought under this section against a person who sold or otherwise furnished alcoholic beverages to an intoxicated person unless the person bringing the claim or cause of action notified the person who sold or otherwise furnished alcoholic beverages to the intoxicated person within one hundred eighty (180) days from the date the claim or cause of action arose by certified mail that the claim or cause of action would be brought. (Emphasis added.)
In my view, by the enactment of that legislation the legislative branch of government has made a conscious decision to occupy the field of dram shop liability which previously has been an arena for speculation and indecision caused by the previous *382decisions of this Court. It is also clear to me that a dram shop cause of action is now limited to the situation where a minor has been served, or a person who is obviously intoxicated, and in any event that liability is restricted to “the person who sold or furnished the alcoholic beverages.” I suggest that this Court for the past twenty years has engaged in a diversity of opinions as to the most desirable social policy in claims against vendors who dispensed alcoholic beverages to tort feasors. In my view, the legislature has now made clear what the public policy of the state of Idaho is regarding the liability of dispensers of alcoholic beverages. In my view, today’s opinion of the majority is a giant step seeking to find potential liability upon otherwise innocent people. If the trend of the majority continues, I suggest that retail and wholesale vendors of beer and wine, together with the State Liquor Dispensary, had best look to the provisions of their liability insurance policies, for assuredly if today’s decision stands, dram shop type liability will be further expanded as such cases are brought to this Court. Perhaps the ultimate will be achieved by this Court when distillers and brewers will be found to have a similar liability on the basis that they knew or should have known that their spirits are ultimately being dispensed by bartenders or liquor stores without sufficient attention to the age or sobriety of their customers.
SHEPARD, J., sat and participated fully in the decision and opinion prior to his death.