(dissenting).
I respectfully disagree with the majority’s holding on the “damage cap” issue and its reasoning on the liability of defendant, Bennett-Cathey, Inc. I believe the rational basis test is the appropriate standard of review of the “damage cap” mandated by NMSA 1978, Section 41-11-1(1) (Repl. Pamp.1986), the statute is rationally related to a legitimate state purpose and does not violate the Equal Protection Clause of the United States and New Mexico Constitutions. A careful examination of the statute, as set forth below, reveals that there is no constitutional-violation. Although I agree with the majority that summary judgment was properly granted in favor of Bennett-Cathey, I cannot agree with the reasoning espoused in that opinion. Any negligence by Bennett-Cathey, in leaving the keys in the ignition, was not the proximate cause of the decedent’s injuries. The theft of the truck by Lewis was a sufficient intervening or superseding cause to sever the chain of causation as it pertains to Bennett-Cathey.
In New Mexico the early common law did not permit an action against a liquor vendor for injuries resulting from the vendor’s illegal sale of intoxicating liquor. Lopez v. Maez, 98 N.M. 625, 628, 651 P.2d 1269, 1272 (1982). Reasons generally given for this rule were that the proximate cause of the injury was not the furnishing of the liquor, but the drinking of it; and if the sale or service of liquor was found to have caused the patron’s intoxication, then the later injury to a third person was thought to be an unforeseeable result of the furnishment of the liquor. Id.
The common law rule, a judicially created doctrine, was changed in a number of jurisdictions subjecting the tavernkeeper to liability where the injury to a third party resulted from the tavernkeeper’s sale of intoxicating liquor to an inebriated customer. Id. at 629-30, 651 P.2d at 1273-74. New Mexico made this change in Lopez when we held therein that a person may be subject to liability if he or she breaches his or her duty by violating a statute or regulation which prohibits the selling or serving of alcoholic liquor to an intoxicated person, and the breach is the proximate cause of injuries to a third party. Id. at 630, 651 P.2d at 1274.
As a result of the decisional law, the legislature enacted in 1983, the dramshop act entitled: “Relating to Alcoholic Beverages; Limiting Civil Liability in Sales of Alcoholic Beverages or Serving of Alcoholic Beverages to Guests.” 1983 N.M.Laws, ch. 328, § 1. “The title and entire tenor of the statute represents a legislative intent to narrow the scope of tavernkeeper and social host liability,” and the statute was an obvious response to Lopez. Trujillo v. Trujillo, 104 N.M. 379, 383, 721 P.2d 1310, 1314 (Ct.App.), cert. denied, 104 N.M. 289, 720 P.2d 708 (1986). From then on all tort actions against tavernkeepers for the sale or service of alcoholic beverages were governed by the dramshop act.
The “damage cap” provision, at issue here, was first inserted in the dramshop act in 1986. 1986 N.M.Laws, ch. 100, § 1. It provides as follows:
Liability arising under this section shall not exceed fifty thousand dollars ($50,-000) for bodily injury to or death of one person in each transaction or occurrence or, subject to that limitation for one person, one hundred thousand dollars ($100,-000) for bodily injury to or death of two or more persons in each transaction or occurrence, and twenty thousand dollars ($20,000) for property damage in each transaction or occurrence.
§ 41-11-1(1). The statute, as the majority opinion correctly points out, bears a presumption in favor of constitutionality. The onus is on the party challenging the statute to prove beyond a reasonable doubt that the statute violates a provision of the constitution. We must always proceed with extreme caution before declaring any statute unconstitutional. Board of Trustees of Las Vegas v. Montano, 82 N.M. 340, 343, 481 P.2d 702, 705 (1971).
I am of the opinion that the “damage cap” on recovery from a tavernkeeper is a valid legislative enactment in the public interest and it applies equally to all persons seeking recovery under the dramshop act. The appropriate standard of review for an Equal Protection Clause challenge is the rational basis test and not the intermediate test applied in the majority opinion, since we are neither dealing with a suspect class nor a fundamental right, but instead, reviewing social and economic legislation. See Meyer v. Jones, 106 N.M. 708, 749 P.2d 93 (1988). The intermediate test is not used except to analyze statutes that classify according to gender or illegitimacy as the majority notes; it is generally inapplicable when reviewing economic or social legislation. City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 440-41, 105 S.Ct. 3249, 3254-55, 87 L.Ed.2d 313 (1984); see also Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976) and Mathews v. Lucas, 427 U.S. 495, 96 S.Ct. 2755, 49 L.Ed.2d 651 (1976). What is required by the Equal Protection Clause is that similarly situated persons be treated alike. Therefore, I am not persuaded that the intermediate test should be adopted in New Mexico in analyzing economic or social statutes.
In applying the rational basis test to the “damage cap” provision, the statute must be upheld if it serves a legitimate state goal. See McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961). “In the area of economics and social welfare, a State does not violate the Equal Protection Clause merely because classifications made by its laws are imperfect”, and, “[i]f the classification has some ‘reasonable basis’, it does not offend the Constitution simply because the classification ‘is not made with mathematical nicety’ ” or because in practice the results are not always uniform. Dandridge v. Williams, 397 U.S. 471, 485, 90 S.Ct. 1153, 1161, 25 L.Ed.2d 491 (1970). The “[legislature’s] judgment is entitled to great weight when the matter comes before the courts for determination” and “[p]alpable error in its conclusion must appear before the courts will reject [the] same.” Hutcheson v. Atherton, 44 N.M. 144, 153, 99 P.2d 462, 468 (1940). A legitimate legislative objective is being furthered by the “damage cap” provision. It compensates victims injured as a result of the negligent sale or service of alcohol without overburdening tavernkeepers. The enactment was, and appears to be to me, in the public interest.
As to the second issue, I agree only with the result reached by the majority, but not with its reasoning. Summary judgment was properly granted in favor of defendant-truck owner, Bennett-Cathey. The theft of the truck was a sufficient superseding cause, as a matter of law, to absolve the owner from responsibility for decedent’s injuries. The weight of authority, which the majority opinion has chosen not to follow, supports the view that an accident caused by an intermeddler, who was enabled to misappropriate a vehicle by the owner’s having left the vehicle unattended and the key in the ignition, will not create liability for the owner. See Annotation, Liability of Motorist who Left Key in Ignition for Damage or Injury Caused by Stranger Operating the Vehicle, 45 A.L.R. 3d 787 (1972); Restatement (Second) of Torts § 302B comment d, illustration 2 (1965). I believe that the law followed by a majority of the jurisdictions is correct.
Bennett-Cathey left the keys in the ignition of the unattended truck in violation of NMSA 1978, Section 66-7-353 (Repl.Pamp. 1987). In New Mexico violation of that statute is negligence per se. Bouldin v. Sategna, 71 N.M. 329, 332, 378 P.2d 370, 372 (1963). But a violation of the statute alone does not constitute actionable negligence. Once it has been determined that a defendant was negligent and a third party suffered injuries, it must be determined whether those injuries were caused by the defendant’s wrongful conduct. A defendant may be held responsible for injurious consequences of his negligent act or omission which occur naturally and directly, without reference to whether defendant anticipated, or reasonably might have foreseen such consequences. The general rule —that an intervening, independent, and efficient cause severs whatever connection there may be between a third party’s injuries and a defendant’s negligence is controlling if the intervening act was not reasonably foreseeable. See Annotation, 45 A.L.R.3d 787 (1972).
To hold Bennett-Cathey liable would require it to have anticipated not one but two probable consequences as a result of having left the keys in the truck. While the theft may have been anticipatable or foreseeable, the subsequent negligent use of the vehicle to injure a third party was not. Leaving the keys in the ignition of an unattended vehicle merely furnished the condition by .which the injuries to decedent were made possible. A subsequent independent act, the negligent driving of the stolen truck by Lewis, caused the injuries. Thus, the acts by Lewis, after the vehicle had been stolen, were a sufficient intervening or superseding cause to break the chain of causation with respect to Bennett-Cathey.
For these reasons, I dissent.
March 29, 1988.