concurring.
Although I agree with the Court’s conclusion that the judgment of the Superior Court must be vacated, this case poses no constitutional issues. The analysis set forth in the Court’s opinion should be undertaken only after the Court has determined that the party challenging the constitutionality of a legislative enactment on equal protection grounds has demonstrated that the statute in fact classifies persons for different benefits or burdens under the law. This is not such a case. There is no claim in the instant case that the statute provides a special legal remedy to a class of plaintiffs -without including in that class all persons similarly situated.
At common law it was not a tort to sell or give alcohol to another and a person injured by the consumer of alcohol could not recover against the provider of the alcohol. The rationale supporting provider non-liability was that the consumption of the alcohol, not the providing of it, was the proximate cause of the injuries. See Currier v. McKee, 99 Me. 364, 366, 59 A. 442, 443 (1904); Gardner v. Day, 95 Me. 558, 560, 50 A. 892, 893 (1901); see also Comment, From “Maine Law” to Model Act: Liquor Liability in Maine, 39 Me.L.Rev. 149, 151-56 (1987). The plaintiff in the instant case does not challenge the constitutionality of this common law rule but contends that the Maine Liquor Liability Act (MLLA) places an unconstitutional special burden on the plaintiff. The new cause of action provided by the enactment of the Dram Shop Act was repealed in 1987. See P.L.1987, ch. 45, § A, 3. Subsequently, the Legislature again created a new cause of action providing both a right and a remedy in contravention of the common law by its enactment of the MLLA. Because the MLLA provides the plaintiff, and all like plaintiffs, a right to seek recovery against the provider of alcohol for all medical expenses and for any other damages up to $250,000 — a right unavailable under the common law — he cannot argue that the damage cap provision of the MLLA imposes an unconstitutional burden on him. Cf., e.g., Seifert v. Standard Paving Co., 64 Ill.2d 109, 120, 355 N.E.2d 537, 540-41 (1976) (limitation of damages in tort recovery against state under statute waiving governmental immunity does not implicate equal protection concerns because no cause of action prior to enactment).