concurring in part and dissenting in part.
I concur in the result reached by the majority. As I understand its decision, this case is to be remanded for retrial on the ground that the issues of contributory negligence as to each of the decedent passengers were not properly or fully presented to the jury. This would appear to be so. I would emphasize, however, that in recognizing the availability to the tavern of the defenses of contributory negligence, in the context of our Comparative Negligence Act, N.J.S.A. 2A:15-1 to -3, with respect to the decedent-passengers who were patrons of the tavern, namely, Elms and Riedinger, the Court is not in any degree retreating from its holding in Soronen v. Olde Milford Inn, Inc., 46 N.J. 582 (1966). We there held that a tavern may not avail itself of the defense of contributory negligence consisting of the voluntary intoxication by the patron when the tavern itself negligently caused the patron to become intoxicated. This has special pertinency with respect to these decedents, who, according to the record, may have been served alcohol by the tavern to the point of pronounced intoxication.
Similarly, I would emphasize that under our decision in Aliulis v. Tunnell Hill Corp., 59 N.J. 508 (1971), a tavern was not permitted to raise the defense of contributory negligence with respect to an unintoxicated passenger in an automobile *84driven by an intoxicated patron whose intoxicated condition was attributable to the negligence of the tavern. The Court expressed an understandable skepticism as to whether the passenger’s conduct in accepting a ride could constitute a proximate contributory cause of the ensuing accident. In this case, the Court seizes upon some general dicta in Aliulis intimating that if a passenger exercised freedom of choice in accepting a ride with an intoxicated person, this might be a relevant consideration in determining the availability to a tavern the defense of contributory negligence, (59 N.J. at 511). Ante at 77. It is suggested that the possibility of a contributory negligence defense based on such a circumstance by the tavern is presented with respect to the decedent Buckley.
I am not prepared in this case to recognize or speculate upon the nature of the contributory negligence defense, based as it is on the controversial, imprecise and infirm doctrine of “assumption of risk.” This Court in McGrath v. American Cyanamid Co., 41 N.J. 272 (1963) criticized this doctrine stating: “... [t]he term ‘assumption of risk’ is so apt to create mist that it is better banished from the scene. We hope we have heard the last of it.” 41 N.J. at 276. Another indictment of the doctrine of assumption of risk was made by Justice Frankfurter in his concurrence in Tiller v. Atlantic Coast Line R. Co., 318 U.S. 54, 63 S.Ct. 444, 87 L.Ed. 610 (1943): “The phrase ‘assumption of risk’ is an excellent illustration of the extent to which uncritical use of words bedevils the law. A phrase begins life as a literary expression; its felicity leads to its lazy repetition, and repetition soon establishes it as a legal formula, undiscriminatingly used to express different and sometimes contradictory ideas.” It is a dubious defense to conduct that itself verges on wantonness and recklessness. See Tabor v. O’Grady, 61 N.J.Super. 446 (App.Div.1960).
In the absence of evidence that reasonably and strongly demonstrates some affirmative involvement and participation by Buckley and the other passengers in the tragic series of events that resulted in the fatal plane crash, as opposed to a *85passive role in these events, I would hesitate to allow the assumption of risk — contributory negligence defense to be available to the tavern.
Whether certain kinds of negligence can constitute a proximate cause of accidental injury in the final analysis depends upon notions of public policy and fairness. Soler v. Castmaster Div. of H.P.M. Corp., 98 N.J. 137 (1984); Caputzal v. Lindsay Co., 48 N.J. 69 (1966). There is in this case much to be said against the soundness or fairness in permitting a tavern, which has caused the intoxication of its patron, to escape liability in the face of the relatively blameless conduct of an apparently uninebriated individual, such as Buckley, who has accepted a ride with the intoxicated patron. I would not in the absence of persuasive evidence and appropriate trial court consideration, rule in the abstract that contributory negligence consisting of an “assumption of risk” can under the Comparative Negligence Act dilute or defeat a tavern’s responsibility for an accident attributable to its conduct in causing the drunkenness of its patron.
I therefore join in the Court’s remand of this cause but would not allow the defense of contributory negligence except upon a strong evidential showing of positive involvement or participation in the accident. Further, I would not suggest, as does the Court, the kinds of hypothetical situations that could on a retrial trigger the defense of contributory negligence on behalf of the tavern against the decedent-passengers.
O’HERN and GARIBALDI, JJ., concurring in the result.
For reversal and remandment — Chief Justice WILENTZ and Justices CLIFFORD, SCHREIBER, POLLOCK, O’HERN and GARIBALDI — 6.
Concurring in part; dissenting in part — Justice HANDLER — 1.