(dissenting).
I respectfully dissent from the majority opinion in this case for two reasons. The first is based on a construction of the Civil Damages Act, Minnesota Statutes section *343340.95 (1982), as it incorporates the comparative fault statute, Minnesota Statutes section 604.01 (1982). The second reason for dissenting stems from what I believe is the major rationale behind the Civil Damages Act. Minn.Stat. § 340.95 (1982).
1. The Civil Damages Act, quoted in the majority opinion, mandates that comparative fault will be used to allocate fault and thereby apportion liability for violations of the Act. Minn.Stat. § 340.95 (1982). Certain related persons, however, are exempted from the fault apportioning provisions of the Comparative Fault Statute. Section 340.95 exempts from the Comparative Fault Statute “actions for injury to person, property, or loss of means of support brought by a husband, wife, child, parent, guardian or other dependent of an intoxicated person.” Id.
It appears that the legislature, by drafting this exclusionary language, has made a conscious decision to preclude the comparison and allocation of fault attributable to an intoxicated person in actions brought by a husband, wife, child, guardian or dependent of that intoxicated person. To allow a vendor to shift partial responsibility by seeking contribution from an intoxicated person in a suit brought by a member of his family against the vendor, thwarts the purposes for which the Civil Damages Act was enacted. See Conde v. City of Spring Lake Park, 290 N.W.2d 164, 166 (Minn.1980); Ascheman v. Village of Hancock, 254 N.W.2d 382, 385 (Minn.1977).
Since no fault is attributable to an intoxicated person pursuant to section 340.95, no liability, at least under the Civil Damages Act, arises. Under Minnesota Statutes section 604.02, the contribution section, the percentage of liability, and therefore contribution, that a tortfeasor incurs is allocated based upon the fault determined by section 604.01, the comparative fault section. See MinmStat. §§ 604.01-.02 (1982). Since section 340.95 precludes computing and allocating a percentage of fault under section 604.-01 to the intoxicated person in a suit commenced by his family, it follows that liability cannot be allocated. See Minn.Stat. § 340.95 (1982).
The majority opinion, if followed, would distinguish between fault and liability. Even if fault were not to be assigned in this case, the majority still believes liability could. That construction is wholly without support in the statutory law. The legislature clearly, by statutory construction and policy, meant to preclude contribution in cases such as the one currently before us. It is not the province of this court to alter that explicit legislative determination.
2. The purposes behind the Civil Damages Act were clearly enunciated by this court in Conde v. City of Spring Lake Park, 290 N.W.2d 164 (Minn.1980), as both penal and remedial in character. Id. at 166; Martinson v. Monticello Municipal Liquors, 297 Minn. 48, 54, 209 N.W.2d 902, 906 (1973). It is designed to penalize the illegal sale of liquor and to provide a remedy to those damaged by the illegal sale. Ascheman v. Village of Hancock, 254 N.W.2d at 385; Ross v. Ross, 294 Minn. 115, 120, 200 N.W.2d 149, 152 (1972).
The court in Conde also held that by imposing liability on vendors and not allowing contribution from the intoxicated person acts as an incentive to vendors to avoid illegal sales. 290 N.W.2d at 166; See also, Skaja v. Andrews Hotel Co., 281 Minn. 417, 424, 161 N.W.2d 657, 661 (1968). The Conde court found that the failure to allow contribution also “reflects the legislative judgment that the vendors can best bear the loss.” 290 N.W.2d at 166.
Most importantly the court in Conde recognized that allowing contribution from the intoxicated person would thwart the purposes behind section 340.95 and would diminish the ability of the intoxicated person to support his or her family. This latter concern was found by this court to be the primary rationale for the Civil Damages Act. See Lemmer v. IDS Properties, Inc., 304 N.W.2d 864, 869 (Minn.1981).
The majority now aborts that formerly announced policy by allowing contribution against the intoxicated person in the instant case. The majority opinion focuses on *344the right of contribution historically granted to co-tortfeasors. The analysis need not venture so far. This case turns upon the legislative judgment in Minnesota Statutes section 340.95 that no fault be assigned to an intoxicated person in an action prosecuted by members of his family.
For the foregoing reasons, I respectfully dissent from the majority opinion.