dissenting.
I respectfully dissent from the majority’s opinion that this case is governed by principles of comparative negligence.
In Lopez v. Maez, 98 N.M. 625, 651 P.2d 1269 (1982), we held that a tavern owner violates his duty to the public if he serves an obviously intoxicated person. Lopez, 98 N.M. at 631, 651 P.2d at 1274. We did not indicate therein whether a patron is to be included in “the public” group. The court of appeals in Walker v. Key, 101 N.M. 631, 686 P.2d 973 (Ct.App.1984), suggested that public policy concerns do not extend to protect an intoxicated adult patron from the results of intoxication under Section 60-7A-16, NMSA 1978 (Repl.Pamp.1987), because this would allow a person to benefit from his or her own wrongful act. Trujillo v. Trujillo, 104 N.M. 379, 382, 721 P.2d 1310, 1313 (Ct.App.1986). Then in Trujillo, the court of appeals concluded that Section 60-7A-16 does not impose a duty on the tavernkeeper to the intoxicated patron since the intent of that statute is directed to a broader public policy of protecting the general public. Id.
As a result of the decisional law, the Legislature in 1983 enacted Section 41-11-1, to limit the scope of dramshop liability in New Mexico as the majority correctly points out. But no language therein provides a cause of action to the intoxicated patron against the tavernkeeper.
The question thus becomes whether an intoxicated passenger has a cause of action or is likewise precluded. Courts that permit such an action have based it, as the majority has, on theories of comparative negligence. I do not agree that this is a proper ground on which to assess liability. Instead I agree with those jurisdictions that have resolved this issue under a complicity theory. See, e.g., Martin v. Heddinger, 373 N.W.2d 486 (Iowa 1985); Plamondon v. Matthews, 148 Mich.App. 737, 385 N.W.2d 273 (1985); Herrly v. Muzik, 374 N.W.2d 275 (Minn.1985).
Complicity as a defense in tort actions involving intoxication is based on. the plaintiff’s involvement in the claimed wrong. It operates as a complete bar to recovery despite the existence of comparative negligence statutes in the jurisdiction. It requires that a person contribute to, participate in or encourage the intoxication of the driver. This person must be an active participant, e.g., purchasing “rounds” of drinks, rather than one who merely accompanies and drinks with the intoxicated person. An active participant is thus a noninnocent person who is not within the class of persons intended by the Legislature to be protected by the dramshop act and cannot be entitled to recovery against tavernkeepers. This analysis is consistent with our policy underlying the dramshop act to protect innocent third parties injured as a result of a driver’s intoxication. See Trujillo, 104 N.M. at 379, 721 P.2d at 1310. To allow any recovery to a noninnocent intoxicated person against the tavern owner would be to award a financial windfall to an undeserving plaintiff who has voluntarily participated in the wrongful conduct. Whether Baxter was a noninnocent party is a question of fact which must be determined by the trial court. I would therefore remand this case back to the trial court to make that determination.
Contrary to the majority’s conclusion, complicity is not identical to contributory negligence although there is a certain relationship between the two. Contributory negligence is “conduct on the part of plaintiff, contributing as a legal cause to the harm he has suffered, which falls below the standard to which he is required to conform for his own protection.” Prosser & Keeton on Torts § 65 (5th ed. 1984). Complicity on the other hand connotes involvement in the claimed wrong which is a knowing and voluntary participation in guilt. See Black’s Law Dictionary 16, 258 (5th ed. 1979). Application of the complicity defense completely bars a person who actively participates in the drinking activities from recovery against the tavern owner. Application of comparative fault principles assesses to the patron and a noninnocent participant a portion of each of their fault while at the same time assessing fault to the tavern owner for continuing to serve an intoxicated person. This would result in a recovery by undeserving plaintiffs who have voluntarily participated in a wrongdoing. Certainly, this cannot be the intent of our dramshop act.
Finally, I am unable to agree with the majority’s sweeping statement that if plaintiff has well pleaded the elements of Section 41-11-1, plaintiff has stated a cause of action that will withstand a motion for judgment on the pleadings. Clearly, this usurps the trial court’s discretionary function and does not comply with the language of the rule. Any party may move for judgment on the pleadings only “after the pleadings are closed.” SCRA 1986, 1-012(C) (emphasis added). Plaintiff’s filing of a complaint that sets forth the elements of Section 41-11-1 does not close the pleadings. A defendant must have the opportunity to file responsive pleadings he' or she deems relevant before a judgment on the pleadings can be rendered by the trial court. It is only after both sides have filed their pleadings that the trial court can resolve the issues on those pleadings in favor of either party. A trial judge should not be restricted in this decision making process as the majority opinion suggests.
Accordingly, I would remand this case to the trial court to determine if Baxter was a noninnocent party.