(dissenting).
The majority opinion upholds the trial court decision to strike the affirmative defense of comparative fault from defendant’s answer in this dramshop action.
I disagree and respectfully dissent.
The sole issue in this appeal is whether liability under the Iowa dram shop act, Iowa Code section 123.92, is among the kinds of “fault” to be compared under our comparative fault act, Iowa Code chapter 668. I believe our legislature intended that comparative fault principles apply to actions in tort including those brought under the dram shop statute. Accordingly, we should recognize that dram shop liability is “fault” to be compared under the comparative fault act.
I. The Comparative Fault Act, Iowa Code chapter 668. In Martin v. Heddinger, 373 N.W.2d 486, 489 (Iowa 1985), we rejected a request that we apply comparative negligence principles to actions brought under the Iowa dram shop act. At that time, Iowa’s comparative fault act was not applicable and our holding instead relied primarily on now outdated comparative negligence principles created by our decision in Goetzman v. Wichern, 327 N.W.2d 742 (Iowa 1983).
We began our discussion in Martin with the rule that contributory negligence is not a defense to a dram shop case in Iowa. Martin, 373 N.W.2d at 488, citing Williams v. Klemesrud, 197 N.W.2d 614, 617 (Iowa 1972). That conclusion was derived in part from our reasoning that dram shop liability was strict liability, without negligence, and that contributory negligence was not a defense to strict liability actions. See Williams, 197 N.W.2d at 617. We also recognized that Goetzman did not apply the comparative negligence rule to strict liability in tort. Martin, 373 N.W.2d at 488, citing Speck v. Unit Handling Div., Litton Sys., Inc., 366 N.W.2d 543, 545 (Iowa 1985). Based on this reasoning, we declined to apply Goetzman to actions based on the dram shop act. Martin, 373 N.W.2d at 488-89.
*359Since Martin, and before the time in which the present claim arose, the legislature enacted Iowa Code chapter 668. Entitled Liability in Tort — Comparative Fault, the chapter is a comprehensive act modifying Iowa tort law in many respects and replacing those principles adopted in Goetzman. The chapter concerns comparative fault rather than comparative negligence and defines fault as follows:
As used in this chapter, “fault” means one or more acts or omissions that are in any measure negligent or reckless toward the person or property of the actor or others, or that subject a person to strict tort liability. The term also includes breach of warranty, unreasonable assumption of risk not constituting an enforceable express consent, misuse of a product for which the defendant otherwise would be liable, and unreasonable failure to avoid an injury or to mitigate damages.
Iowa Code § 668.1(1) (1987).
It is at once apparent that the concept of “fault” as defined above is more comprehensive than our prior notions of contributory negligence under Goetzman. Where we limited the comparative negligence doctrine to apply only to actions in which contributory negligence had previously been a complete defense, Goetzman, 327 N.W.2d at 754, the definition of fault in section 668.1(1) obviously pertains to actions not simply based on negligence, but also those alleging recklessness, as well as strict tort liability. In light of this observation, it is necessary to reexamine our decisions concerning the dram shop act to ultimately determine whether liability under that act should be considered “fault” under section 668.1(1).
II. Liability under Iowa Code section 123.92. The Iowa dram shop act was amended in 1986 and made applicable to all actions filed after July 1, 1986, including the present action. 1986 Iowa Acts ch. 1211 §§ 12, 47. The current act provides in part:
Any person who is injured in person or property or means of support by an intoxicated person or resulting from the intoxication of a person, has a right of action for all damages actually sustained, severally or jointly, against any licensee or permittee, who sold and served any beer, wine or intoxicating liquor to the intoxicated person when the licensee or permittee knew or should have known the person was intoxicated, or who sold to and served the person to a point where the licensee or permittee knew or should have known the person would become intoxicated. If the injury was caused by an intoxicated person, a permittee or licensee may establish as an affirmative defense that the intoxication did not contribute to the injurious action of the person.
Iowa Code § 123.92 (1987).
Liability under the statute has most consistently been characterized as “strict liability”. See Haafke v. Mitchell, 347 N.W.2d 381, 387 (Iowa 1984); Williams v. Klemesrud, 197 N.W.2d 614, 617 (Iowa 1972); Berge v. Harris, 170 N.W.2d 621, 627 (Iowa 1969); see also Schubert, The Iowa Dram Shop Act — Causes of Action and Defenses, 23 Drake L.Rev. 16 (1973). In the past we have styled the cause of action under the statute as “statutory not standing in tort.” Wendelin v. Russell, 259 Iowa 1152, 1160, 147 N.W.2d 188, 193 (1966). More recently, however, section 123.92 has been described as an effort by the legislature to “set the metes and bounds of recovery rights in tort suits based on the sale or furnishing of intoxicants.” Fuhrman v. Total Petroleum, Inc., 398 N.W.2d 807, 808 (Iowa 1987) (emphasis added).
In its current form, the statute is phrased in language particularly indicative of tort theory in that liability is based on service to a person when “the licensee ... knew or should have known the person was intoxicated” or “would become intoxicated.” See 57 Am.Jur.2d Negligence § 54 at 402 (1971) (“Fundamentally, the duty of a person to use care and his liability for negligence depend on the tendency of his acts under the circumstances as they are known or should be known to him.”).
*360Historically, dram shop statutes were created to fill a void left empty at common law. Courts were unwilling to recognize a common law cause of action against purveyors of intoxicating beverages because, as a matter of law, consumption, rather than the furnishing of alcohol, was considered the proximate cause of the ultimate damages. See Haafke, 347 N.W.2d at 384; Snyder v. Davenport, 323 N.W.2d 225, 226 (Iowa 1982). Thus, dram shop statutes were enacted to enable tort plaintiffs to bridge the proximate cause gap between the sale of an intoxicating beverage and the subsequent injury or damage caused by the intoxicated patron. In exchange for this new claim, the legislature mandated that liquor purveyors were strictly liable and carefully prescribed the means by which liability may be ascertained. Snyder, 323 N.W.2d at 227.
The statute limits recovery for injuries caused by the intoxication of the dram shop patron. The last sentence of the portion of section 123.92 quoted above provides that the dram shop may assert an affirmative defense that the intoxication was not a proximate cause of the patron’s injurious action. See Gremmel v. Junnie’s Lounge, Ltd., 397 N.W.2d 717, 721 (Iowa 1986) (defense that intoxication was not a proximate cause of plaintiff’s injuries was available upon showing that animosity between combatants and not intoxication precipitated assault).
The rise of the claim created by section 123.92 extending liability to liquor purveyors is mirrored by the recent genesis of separate common law actions against those who sell or provide liquor in violation of criminal statutes. See Lewis v. State, 256 N.W.2d 181, 191-92 (Iowa 1977) (holding, in a case in which negligence was based on the illegal sale of alcohol to a minor in violation of Iowa Code section 123.43 (now section 123.47), that proximate cause was an issue to be resolved by the finder of fact); Haafke v. Mitchell, 347 N.W.2d 381, 385 (Iowa 1984) (holding tavern employees could be held liable for negligently furnishing alcohol to a patron in violation of a criminal statute or ordinance); Bauer v. Dann, 428 N.W.2d 658, 661 (Iowa 1988) (holding a common law cause of action exists against a non-licensee who furnishes alcohol to a minor in violation of Iowa Code section 123.47 where the minor subsequently causes the plaintiff’s injuries); see also Rinden, Judicial Prohibition? Erosion of the Common Law Rule of Non-Liability for Those Who Dispense Alcohol, 34 Drake L.Rev. 937 (1985-86). The coexistence of section 123.92 dram shop claims and these analogous claims sounding in negligence underscores the relationship between recovery under the dram shop act and recovery in tort.
Similarly, enforcement of the dram shop act has incorporated principles sounding in tort. We have recognized certain contributory conduct defenses in dram shop actions. In Berge v. Harris, 170 N.W.2d at 627, we found that assumption of risk “is a distinctive kind of contributory negligence” and held that a defendant under the dram shop act was entitled to urge assumption of risk in its defense. (Notably, Iowa Code section 668.1(1) explicitly provides that assumption of risk is “fault” to be compared under chapter 668.) In the same case we recognized that a plaintiff's complicity in the intoxication of the patron precludes recovery under the dram shop act. Id. at 625, citing Engleken v. Hilger, 43 Iowa 563, 564 (1876). In Martin, 373 N.W.2d at 489, this court once again recognized the relationship between these two dram shop defenses and contributory negligence, but declined to allow general contributory negligence principles in dram shop cases before enactment of chapter 668.
These two defenses to dram shop liability, complicity and assumption of risk, have been recognized by this court in an effort to further the purposes of the dram shop act. As we stated in Berge, 170 N.W.2d at 626:
We find nothing in the statute suggesting that an injured party should be allowed to recover regardless of his conduct. The doctrine of complicity is a recognition of the fact that the right to recover is limited to innocent persons. One who knowingly rides with a drunken driver can hardly be included in that cat*361egory. We find no statutory bar to the application of assumption of risk.
We do not believe the defense of assumption of risk will interfere with the purpose of the statute. “The dram shop act is designed to fulfill a need for discipline in the traffic of liquor and to provide a remedy for evils and dangers that flow from such traffic.” Osinger v. Christian, [43 Ill.App.2d 480, 485, 193 N.E.2d 872, 875 (1963)]. The evil and danger that we are concerned with here is that a person in an intoxicated condition might unintentionally, but as a result of his intoxication, injure some other party. We do not believe it contributes to the fulfillment of this purpose if the injured party is given no responsibility for his own welfare.
In Gremmel v. Junnie’s Lounge, Ltd., 397 N.W.2d 717 (Iowa 1986), we held that the defense of assumption of risk was available to a dram shop defendant where the injuries arose from an altercation with an intoxicated patron. The risk that is assumed is the potential for injury, not intoxication. Id. at 720, (“[A]s a matter of public policy we should discourage tavern fights by imposing upon dram shop plaintiffs the responsibility for assuming the risk of their own injuries when they voluntarily choose to become involved in altercations with persons who, they believe, are intoxicated.”) (Emphasis added.) We found in Gremmel that plaintiffs who assent to combat with intoxicated persons are not “innocent persons” entitled to protection under the statute and that “[n]ot to allow the defense would be tantamount to allowing these plaintiffs to profit from their own wrongdoing.” Id.
Against this historical backdrop, I would conclude that liability under section 123.92 is not sui generis, and is therefore not so unique as to warrant a distinction from other types of unintentional tort liability. Next, I will examine whether dram shop liability is among the kinds of fault to be compared under chapter 668.
III. Dram shop liability as “fault”under the comparative fault act. In determining the relationship between section 123.92 and chapter 668, and more specifically section 668.1(1), we are guided by the rules set out in Iowa Code chapter 4. Iowa Code section 4.7 provides in part, “If a general provision conflicts with a special or local provision, they shall be construed, if possible, so that effect is given to both.” Iowa Code section 4.2 states, “The rule of the common law, that statutes in derogation thereof are to be strictly construed, has no application to this Code. Its provisions and all proceedings under it shall be liberally construed with a view to promote its objects and assist the parties in obtaining justice.”
In this regard, I note that the purposes of the dram shop act are to “place a hand of restraint on those licensed or permitted by law to sell or supply intoxicants to others and to protect the public, but above all to provide an avenue of relief to those offended who had no recourse or right of action under the common law.” Wendelin v. Russell, 259 Iowa 1152, 1158, 147 N.W.2d 188, 192 (1966). The design of the comparative fault act, on the other hand, is to provide a comprehensive framework for the assessment and apportionment of liability for harm among affected parties, and to provide a right of contribution among liable parties.
Assumption of risk is expressly among those kinds of conduct considered “fault” under section 668.1(1). Complicity is a form of comparative negligence, Martin, 373 N.W.2d at 489, and negligence too, is expressly provided to be “fault” by section 668.1(1). Thus, contrary to the indications from the majority opinion, the legislature has directed that a plaintiffs assumption of risk and complicity should mitigate but not bar a plaintiff’s recovery rights in tort. Under the majority opinion, however, these defenses are comparative in all tort actions except those arising under the dram shop act where they remain complete defenses.
I believe that ruling these defenses to be comparative better serves the goals and purposes of both acts. By allowing finders of fact to weigh a plaintiffs assumption of risk against a dram operator’s liability under the dram shop act, the plaintiff’s recov*362ery may be discounted to the degree the plaintiff is responsible for his or her own injuries. Berge, 170 N.W.2d at 626. Similarly, by not erecting an absolute bar to liability, liquor purveyors whose conduct violates the dram shop act will remain liable for the harm attributable to. that conduct.
In Berge it was observed that these complete defenses do not interfere with the purpose of the dram shop act. This conclusion, however, is not entirely true. Because of these defenses, instances arise in which dram shop operators violate the statute, but are not “disciplined” with liability. The two dram shop defenses are at times swords instead of shields because complicity and assumption of risk preclude recovery against irresponsible providers of intoxicants. Indeed, a tavern that serves two drinking companions past the point of intoxication cannot be held liable if one of these patrons injures the other. By ruling comparative fault principles apply, discipline in the form of liability would be enforced whenever a dram shop violates the statute. This discipline would be meted out to the degree the excessively furnished alcohol contributed to the injury.
Clearly such a result is in harmony with the design of the comparative fault act. Liability for harm would be rested upon those responsible for the harm. Damages, in turn, would be assessed in proportion to the degree of the party’s responsibility.
Although this is the first occasion in which this court has addressed dram shop liability as “fault” under section 668.1, it is not the first occasion in which dram shop liability has been considered in light of our comparative fault act. In Schreier v. Sonderleiter, 420 N.W.2d 821, 824-25 (Iowa 1988), a claim for contribution between two dram shops was recognized and proportional allocation of fault between them was upheld. Adopting the reasoning of a Minnesota supreme court decision, our court held that a dram shop may bring a contribution action against another dram shop because this contribution would “distribute the burden of liability among those commonly liable equally, increase the incentive of all licensed vendors to guard against all illegal sales, and spread more equitably the economic loss resulting from violations upon the liquor industry.” Id. at 824, quoting Skaja v. Andrews Hotel Co., 281 Minn. 417, 424, 161 N.W.2d 657, 661 (1968). The majority’s holding today, that “fault” under section 668.1(1) does not include dram shop liability, is a retreat from our decision in Schreier.
Furthermore, application of comparative fault to dram shop actions would provide a degree of clarity and equity previously lacking in our liquor liability jurisprudence. Liability based on violations of a criminal statute such as those actions recognized in Bauer, Haafke, and Lewis, obviously would be subject to defenses based on comparative fault because those claims sound in negligence. By its terms, section 668.-1(1) would make the same defense available to a permittee or licensee whose conduct results in liability under section 123.92. The “strict” liability under section 123.92 does not make a difference in this regard. Section 668.1(1) clearly applies to actions based on strict liability as well as negligence. The common ground between these claims finding liability based upon furnishing liquor, far outweighs the differences between the statutory and common law claims. This fact compels a common approach with respect to comparable fault.
Similarly, an intoxicated dram shop patron who negligently injures another may assert the plaintiff’s comparative fault in his own defense. The legislature has expressed its intention that this defense also should be made available to the dram shop defendant who shares common liability with its patron. See Federated Mut. Implement and Hardware Ins. Co. v. Dunkelberger, 172 N.W.2d 137, 142 (Iowa 1969) (“ ‘Common liability exists when two or more actors are liable to an injured party for the same damages, even though their liability may rest on different grounds.’ ” (quoting Farmers Ins. Exchange v. Village of Hewitt, 274 Minn. 246, 249, 143 N.W.2d 230, 233 (1966))).
To hold otherwise, as the majority does, the anomalous result can arise where an *363intoxicated dram shop patron is liable for only a small amount of a plaintiff’s loss, yet the licensee, who is more remote from the cause of the plaintiff’s injuries, will remain completely liable for the whole of a plaintiff’s loss. This is but one example where the dram shop statute would fail to compensate only innocent persons and instead would compensate all dram shop plaintiffs, even those whose injuries are predominately due to their own actions. This result is certainly at odds with the goals articulated in Berge, 170 N.W.2d at 626, that an injured party should not be allowed to recover for injuries regardless of his or her own conduct.
The dram shop statute, as applied under chapter 668, would continue to compensate innocent persons from harm caused by intoxicated individuals. Such a construction would also continue to provide the needed discipline in the traffic of liquor by placing responsibility for what harm is caused by intoxicated patrons with those who profit by the sale of the intoxicating liquors.
IV. Other indicia of legislative intent favoring comparative fault as a defense in dram shop actions. The majority’s position relies in part on its resolution of an issue not involved in the present case. That issue concerns whether Iowa Code section 668.4 or Iowa Code section 123.92 would control the joint and several liability of a defendant dram shop when other defendant tort-feasors are in the case. Section 668.4 pertains generally to joint and several liability in all tort actions. Section 123.92, on the other hand, addresses joint and several liability in only one kind of action, dram shop actions. In the event of a conflict, I believe the more specific statute, section 123.92, should control. See Iowa Code § 4.7 (1987); In re Marriage of Baculis, 430 N.W.2d 399, 404 (Iowa 1988). That issue is not properly before this court now, however, and should not affect our analysis of whether a dram shop case comes under “strict tort liability” for the purposes of section 668.1.
A. The fault rather than negligence standard. As the majority correctly points out, when the legislature acts with respect to a previously enacted statute, it is presumed to know how we have construed and applied the statute. State ex rel. Palmer v. Board of Supervisors, 365 N.W.2d 35, 37 (Iowa 1985). Prior to the enactment of chapter 668, this court held that contributory negligence was not a defense to a dram shop action. Williams v. Klemesrud, 197 N.W.2d 614, 617 (Iowa 1972). Had the legislature subsequently enacted a comparative negligence act, we certainly would have been provided strong evidence that dram shop actions would not apply under the act.
Here, however, the legislature reached beyond our previous pronouncements and enacted legislation based upon fault rather than negligence. The obvious implication of this action is that the legislature intended that comparative fault principles apply in actions that we previously held were not subject to comparative negligence. As designed, chapter 668 applies to dram shop actions.
B. The comments to the uniform act. The majority finds support for its position in the comment to the uniform act which provides:
A tort action based on violation of a statute is within the coverage of the Act if the conduct comes within the definition of fault and unless the statute is construed as intended to provide for recovery of full damages irrespective of contributory fault.
Unif. Comparative Fault Act § 1 comment, 12 U.L.A. 39 (Supp.1988) (emphasis added). As discussed above, I believe conduct creating liability under the dram shop act fits within the definition of fault found in section 668.1(1). With regard to the comment’s exception, the majority concludes that our dram shop act is construed to provide for full recovery regardless of contributory fault. This conclusion is erroneous.
Assumption of risk “is a distinctive kind of contributory negligence.” Berge v. Harris, 170 N.W.2d 621, 627 (Iowa 1969). Moreover, assumption of risk is explicitly among those kinds of conduct defined as “fault” in section 668.1(1). It can not be *364disputed that a plaintiff s assumption of risk prevents a full recovery of damages. Id. This court’s construction of section 123.92 complies with the proviso articulated in the comment to the uniform section. Thus, this comment presents strong evidence that dram shop liability was intended to be within the coverage of the act.
C. General statutory language indicating intent. Section 668.1(1) does not explicitly provide that dram shop actions under section 123.92 are to be included as fault. The majority finds support for its position in this observation.
Section 668.1(1) is not a serial listing of the actions subject to chapter 668 operation. The statute only generally states the categories of actions that come under its coverage. Had the general assembly listed several particular claims by name, we necessarily could have inferred that the list was exclusive. See State v. Hatter, 414 N.W.2d 333, 337 (Iowa 1987). Because section 668.1(1) is only generally descriptive rather than definitive, however, this court can not rely, as the majority does, on what the statute does not mention in deciding the merits of the current dispute.
What did the legislature intend in enacting chapter 668? It is obvious that the paramount intention was to create a comprehensive framework for the assessment and apportionment of liability and damages in actions involving unintentional torts. The majority fails to recognize and honor this intention.
V. Conclusion. Based on the above authorities and reasons, I would conclude that “strict tort liability” as defined under section 668.1(1) of the comparative fault act includes liability under our dram shop act, Iowa Code section 123.92. The heritage of dram shop liability is that of tort and enforcement of the statute follows tort liability principles. Further, I believe including dram shop liability in the concept of “strict tort liability” as contemplated in section 668.1(1) best serves the goals and purposes of both acts.
Finding liability under section 123.92 to be strict tort liability for purposes of section 668.1(1) of the comparative fault act, I would reverse the ruling of the district court which granted plaintiffs’ motion and struck defendant’s affirmative defense.
HARRIS and NEUMAN, JJ., join this dissent.