(concurring and dissenting):
I concur in all of the majority opinion except part III.B. As to that part, I dissent.
The majority correctly observes in part III.A. that our Dramshop Act imposes strict liability and that it is not premised on common law notions of fault or negligence. Accordingly, the majority concludes that “the doctrine of comparative negligence may not be applied among the defendants.” However, the majority loses sight of this principle in part III.B. where it requires the negligence of the plaintiff to be compared to the negligence of the intoxicated driver. The majority rejects the almost universally recognized rule that the contributory negligence of a plaintiff who is injured by an intoxicated person is not available as a defense to a tavern owner when sued under a dramshop law. Overocker v. Retoff, 93 Ill.App.2d 11, 24, 234 N.E.2d 820, 815 (1968); Feuerherm v. Ertelt, 286 N.W.2d 509, 511 (N.D.1979); Stager v. HWA Corp., 435 N.W.2d 349, 352 (Iowa 1989) (relying on Williams v. Klemesrud, 197 N.W.2d 614 (Iowa 1972), overruled on other grounds, Lewis v. State, 256 N.W.2d 181, 192 (Iowa 1977); see Annotation, Contributory Negligence Allegedly Contributing to Cause of Injury as Defense in Civil *122Damage Act Proceeding, 64 A.L.R.3d 849 (1975), and cases collected there; 45 Am. Jur.2d Intoxicating Liquors § 591 (1969); 48A C.J.S. Intoxicating Liquors § 441 (1981); see also W. Keeton, Prosser & Keeton on the Law of Torts § 81 (5th ed. 1984).
The cases cited by the majority in footnotes 8 and 15 in support of its position that the negligence of the intoxicated driver and the plaintiff must be compared do not support that position. Huss v. United States, 738 F.Supp. 1098 (W.D.Mich.1990), was not a suit against a tavern owner under a dramshop statute. It was an action for personal injuries under the Federal Tort Claim Act against the United States growing out of an automobile accident with a National Guard vehicle. The two Michigan cases cited, Heyler v, Dixon, 160 Mich. App. 130, 153-54, 408 N.W.2d 121, 130-31 (1987), and Lyman v. Bavar Co., 136 Mich. App. 407, 408-9, 356 N.W.2d 28, 30 (1984), are distinguishable because the Michigan Dramshop Act contains an express provision that “all factual defenses open to the alleged intoxicated person or minor shall be open and available to the principal and surety.” Mich.Comp.Laws Ann. § 436.22. The Michigan courts have construed this statutory provision to require the comparison of the negligence of the plaintiff and the intoxicated person. Utah has no such provision.
The two decisions from the Illinois Court of Appeals in the 1940s do not represent the present law in that state. Klopp v. Protective Order of Elks, 309 Ill. App. 145, 33 N.E.2d 161 (1941); Hill v. Alexander, 321 Ill.App. 406, 53 N.E.2d 307 (1944). In neither case was the issue presented for decision. There is dicta in the opinions that the negligence of a plaintiff must be considered. However, the later case of Qua-trano v. Marrocco, 61 Ill.App.2d 1, 14-15, 208 N.E.2d 632, 638-39 (1965), specifically disavowed this language. Moreover, the Supreme Court of Illinois in Howlett v. Doglio, 402 Ill. 311, 319, 83 N.E.2d 708, 713 (1949), clearly held that under its dramshop act, contributory negligence of a plaintiff was not a bar to an action for damage.
The remaining case relied upon by the majority opinion is Walz v. City of Hudson, 327 N.W.2d 120 (S.D.1982). That case was not brought under a dramshop statute since South Dakota had none. Instead, the supreme court held that because a statute of that state made it a crime to sell intoxicating beverages to a person who is already intoxicated, the violation of that statute was negligence as a matter of law. The court therefore recognized a civil cause of action in negligence and accordingly allowed the usual defenses to negligence actions to be interposed, including the negligence of the plaintiff. Id. at 122-23. Following that decision, the legislature of South Dakota abrogated the rule of that case. S.D. Codified Laws Ann. § 35-11-1.
The reason given in the cases for not allowing the contributory negligence of a plaintiff to be a defense is that dramshop statutes impose either strict liability or a distinct statutory liability, to which common law principles of negligence do not apply. The majority mistakenly reads our statute as though it made the tavern owner liable for the negligence of the intoxicated customer. Not so. Our statute makes the tavern owner liable for injuries “resulting from the intoxication.” § 32A-14-l(l)(d). No mention is made of negligence. We should follow cases from those states such as Iowa which have had dramshop statutes for over 100 years, and refuse to engraft negligence defenses onto a strict liability statute. See, e.g., Slager v. HWA Corp., 435 N.W.2d 349. A defense which is recognized by the cases against an injured plaintiff is complicity, viz., when the plaintiff has actively participated in furnishing drinks to the intoxicated person. See Annotation, Third Person’s Participating in or Encouraging Drinking as Barring Him From Recovery Under Civil Damage or Similar Acts, 26 A.L.R.3d 1112 (1969). That fact situation is not present in the instant case.
The majority confuses negligence with proximate cause. The statute makes the tavern owner liable for injury “resulting from intoxication.” This required a finding that the intoxication of the driver in the instant case was a proximate cause of the *123plaintiff’s injuries. The trial court so instructed the jury, and the jury found that the plaintiff’s injuries did “result from” Trease’s intoxication at the defendant’s tavern. I, therefore, dissent from the following statement in the majority opinion: “Causation can only be determined by considering the negligence or fault of those involved in the incident.”
To the contrary, the comparison of negligence in a true negligence action is for the purpose of determining degree of fault of the various actors. It is not to determine causation. An intoxicated driver may share only part of the fault for an accident, but his negligence or fault may, indeed, be a proximate cause of the accident, i.e., the plaintiffs injuries “resulted from” the intoxication.
In summary, the position taken by the majority on this issue has little or no support in the cases. On the other hand, recent decisions in states where comparative negligence statutes have been enacted in recent years have revisited the issue and have refused to apply them to dramshop actions. See Slager v. HWA Corp., 435 N.W.2d 349; Feuerherm v. Ertelt, 286 N.W.2d 509. Since this is our first case arising under our dramshop law, it is important that we not start down a course of engrafting common law defenses onto a strict liability statute.
I would affirm the judgment.
DURHAM, J., concurs in the concurring and dissenting opinion of Associate C.J. HOWE.