dissenting.
I respectfully dissent.
This case was correctly decided in the opinion filed on December 18, 1986. A further review, after rehearing, does not change my conclusion. I incorporate herein the reasoning of the original opinion.
The sole issue before us is whether, under the facts in this case, dramshop liability can be imputed to the absent, non-operating, nonparticipating owner-lessor for the actions of his lessee. The incident at issue occurred on December 10, 1982.
There was no dramshop liability in New Mexico when the Legislature enacted the Liquor Control Act in 1981, see Marchiondo v. Roper, 90 N.M. 367, 563 P.2d 1160 (1977); therefore, no such liability was contemplated when Section 60-3A-2(B) was enacted.
In Lopez v. Maez, 98 N.M. 625, 632, 651 P.2d 1269, 1276 (1982), we permitted a cause of action against a tavernkeeper-operator where an injury to a third person had resulted from the tavernkeeper’s sale of intoxicating liquor to an obviously intoxicated person. Lopez provided a cause of action against tavern operators and was not intended to apply, nor does it apply, to an absent, nonoperating, nonparticipating owner-lessor.
Petitioner was not present, did not operate the tavern or authorize anyone on his behalf to sell liquor to Nuanes. It is unreasonable to hold a person civilly liable for that over which he has no control and which he therefore has no opportunity to prevent.
As further evidence of the fact that the Legislature never intended to impute liability to an absentee-owner for the actions of his lessee without knowledge or reason to know of those actions, we have only to look at the subsequent legislation. Section 41-11-1 enacted in 1983 states:
A. No civil liability shall be predicated upon the breach of Section 60-7A-16 NMSA 1978 by a licensee, except in the case of the licensee who:
(1) sold or served alcohol to a person who was intoxicated;
(2) it was reasonably apparent to the licensee that the person buying or apparently receiving service of alcoholic beverages was intoxicated; and
(3) the licensee knew from the circumstances that the person buying or receiving service of alcoholic beverages was intoxicated.
NMSA 1978, § 41-11-1 (A) (Cum.Supp. 1983).
Accordingly, the judgment of the district court should be reversed and the case remanded for entry of an order granting summary judgment in favor of petitioner.