dissenting:
149 The majority opinion states categorically that, "[plrior to the enactment of the Dramshop Act, Utah did not recognize a third-party common law cause of action against dramshops. Maj. Op., ¶ 15 (referring to Yost v. State, 640 P.2d 1044 (Utah 1981)); Rees v. Albertson's, Inc., 587 P.2d 130 (Utah 1978)). I cannot draw the same inference from those cases.
1 50 In Rees, the plaintiff was a minor and an intoxicated person who had injured third *538parties and who had been required to pay compensation. Nee Rees, 587 P.2d at 181. The plaintiff sued Albertson's, seeking contribution on the basis that it had illegally sold the beer that caused the intoxication. See id. The court's analysis turned on foreseeability, and its conclusion was straightforward:
[We think reasonable minds could believe that in selling beer to a minor, such as plaintiff, the defendant reasonably should have foreseen the likelihood of it being combined with an automobile and result [sic] in some occurrence such as eventuated here.
To be considered in connection with what has been said above are these principles: that the questions relating to negligence and proximate cause are generally for the fact-trier, court or jury, to determine. A party should not be deprived of the privilege of having such an adjudication of his claims unless it appears that even upon the facts claimed by him he could not establish a basis for recovery.
Id. at 133 (footnotes and citations omitted).
1 51 The plaintiff in Rees was not suing for his own injuries; he sought contribution and an allocation of liability for injuries to third parties. No claim for contribution could or would lie absent a duty and potential liability running from Albertson's to the third party (henee the court's care to assess the foreseeability of third-party injuries). The Rees court, in fact, recognized the legitimacy of a third-party claim when it permitted the plaintiff to go to trial on the contribution question.
{52 Three years later, the court reaffirmed its position in Rees. The plaintiff in Yost v. State, 640 P.2d 1044 (Utah 1981), had been injured in an automobile accident allegedly caused by the defendant's illegal sale of liquor to several minors. See id. at 1045-46. The court declared:
Regardless of the percentage of liability attributable to [the defendant liquor seller] relative to the other defendants, he is liable for [plaintiff] Yost's total damage, reduced by: 1) the percentage of negligence attributed to Yost, and 2) the greater of the amount of the consideration paid by [another defendant, the driver of the vehicle that crashed] for his release, or the amount, if any, by which the release provides that the total claim shall be reduced.
Id. at 1048 (footnotes and citations omitted).
{ 53 In other words, the court affirmed an allocation of liability running from the provider of the liquor to a third party injured by an intoxicated minor, subject to a reduction for the plaintiffs own liability. The only theoretical basis for the ruling is a common law cause of action by an injured third party against one who illegally sells liquor.
4 54 It is, of course, a difficulty that neither Rees nor Yost contains an extensive analysis of the determination that a cause of action would lie, and it is legitimate to ask if the court fully recognized the extent to which it was extending existing common law principles to a type of claim without a solid history in Utah. On the other hand, the lack of serutiny applied to the question might well reflect an underlying assumption by the court that standard principles of tort analysis (foreseeability, causation, allocation of Hability) were applicable as a matter of course to this fact pattern. In any event, I do not believe it to be accurate or adequate to dismiss these holdings summarily, as does the majority opinion. They are definitively based, at the least, on an assumption that the illegal provision of alcohol could give rise to a claim of liability to third parties. I think the majority errs when it asserts that "neither case established a common law cause of action in favor of third persons against commercial vendors of alcohol where there was no statutory violation." Maj. Op., 115. Neither opinion uses language we might call "establishing," but neither ruling could stand without an assumption that such claims were legitimate. Contribution is not available from a defendant who does not have liability to the injured party in the first place, nor is allocation of lability to such a defendant possible in any other setting.
T55 Because the majority's conclusions about the effect of the Dramshop Act are *539predicated on its conclusion that no common law negligence existed prior to its enactment, I cannot join its reasoning. Furthermore, if in fact such a common law claim existed, it is not clear to me why its persistence would be precluded by the statutory scheme of the Dramshop Act absent an express determination by the legislature to override related common law. The Dramshop Act contains no such determination, and in fact is strangely devoid of language explaining its purpose.6
56 For the foregoing reasons, I dissent from the majority's holding that plaintiffs had no common law cause of action. At the very least, I think this court should have engaged in an independent analysis of whether the common law cause of action acknowledged in our old cases ought, as a matter of policy and law development, to co-exist in the era ushered in by our Dramshop Act, or be definitively abandoned after such an analysis.
1 57 I agree with the majority's conclusions regarding the interaction of the Dramshop Act and wrongful death claims. The harsh result in this case may in fact reflect one of the factors that ought to be considered in deciding the current vitality of, and need for, the common law cause of action as opposed to the limited remedies provided by the Dramshop Act.
1 58 Justice STEWART concurs in Associate Chief Justice DURHAM's dissenting opinion.. The majority cites language from Reeves v. Gentile, 813 P.2d 111 (Utah 1991), declaring the legislative purpose of the Dramshop Act, but unfortunately, examination of the Reeves opinion reveals no source for the declaration; it appears to have simply been an assumption made by the court based on its assessment of dramshop legislation in general.