(concurring in part and dissenting in part).
1. I agree with the majority opinion’s treatment of the contribution issue but wish to add these observations.
The trial court ruled contribution could not lie because the negligent auto driver would never have to pay more than his or her fair share. In other words, here, if the wrongful death action had been tried rather than settled, the jury would have compared the fault of Kortuem with the fault of the decedent. If Kortuem were found to be more negligent than the decedent, say, 60%, then Kortuem would pay 60% of the damages, her share, but no more; the remaining 40% would be attributable to the intoxicated decedent’s own contributory negligence, and the verdict for the next of kin would be reduced by that amount.
But one cannot stop at this point. Presumably the 60% paid by the negligent auto driver includes a sum for loss of means of support, an item for which the dramshop defendant is also liable. How does one determine the dramshop’s fair share of this liability? As the majority opinion points out, it cannot be said the 40% fault attributed to the deceased, intoxicated person is necessarily the same as or inclusive of the liquor vendor’s fault.
*734The problem is put in sharper focus if one assumes the two causes of action are consolidated for trial and the jury then, in the one action, determines and apportions the liability of all the cotortfeasors, both the negligent auto driver and the liquor vendors. Ideally, in such a situation, the jury should first compare negligence as between the decedent and Kortuem to determine, initially, if Kortuem is liable to decedent’s trustee, making this determination without diluting the negligence of the negligent tort-feasors with the fault of the dramshops. There would then be a second determination, comparing fault as between Kortuem (if found liable) and the liquor vendors. This solution, however, seems unduly unwieldy and presents complications of its own. The court’s solution, to resolve the contribution issue by having one comparative fault question for all actors, has the advantage of being simpler and still affording essential fairness. While the fault of the actors is, in a sense, being diluted, it is still being compared on a relative and fair basis.
In the posture of this case before us, it would seem the contribution issue can be tried in the dramshop action. Whether a wrongful death action is to be consolidated for trial with a dramshop action continues, I should think, to be left to the discretion of the trial court. There are still problems to be resolved, but the aim is to promote, if possible, a fair sharing of the liability of those responsible.
2. I do not agree, however, with the court’s holding that a Trail cause of action should exist against the 3.2 bar. Trail v. Christian, 298 Minn. 101, 213 N.W.2d 618 (1973), holds that a third person injured by the intoxicated patron has a cause of action in common-law negligence against the commercial 3.2 beer vendor. The majority now creates a new cause of action, giving the next of kin of a deceased intoxicated patron a cause of action against the 3.2 vendor.
We cannot create a new cause of action by amending either the Wrongful Death Act or the Civil Damage Act or both. This new cause of action is necessarily based on common-law negligence. If so, then comparative fault should apply as between the decedent and the 3.2 vendor. Surely, if we now say the 3.2 vendor owes a duty of care to the intoxicated person’s dependents to protect the intoxicated person, then the intoxicated person should owe no less a duty to his dependents to take care of himself. Yet in Ascheman v. Village of Hancock, 254 N.W.2d 382 (Minn.1977), we held a dram-shop vendor, who had paid means-of-support damages to the intoxicated person’s dependents, could not bring a contribution action against the intoxicated person because the dependents had no action in negligence against their father and husband.
In creating this new cause of action the majority is, in effect, abrogating the common-law rule that there is no common-law cause of action for wrongful death. Fidelity & Casualty Co. v. St. Paul Gas Light Co., 152 Minn. 197, 188 N.W. 265 (1922). In effect, we are adding a new kind of death action outside the Wrongful Death Act but giving it some of the characteristics of a Civil Damage Act action by limiting damages to loss of means of support with the dramshop statutory limit and denying the defense of the intoxicated-person’s contributory negligence.
I do not think the equal protection clause mandates this result. At the very least, the result here illustrates the problems mentioned in my dissenting opinion in Wegan v. Village of Lexington, 309 N.W.2d 273 (Minn.1981).