(dissenting).
I respectfully dissent. In 1969, Minnesota first modified the common-law doctrine of contributory negligence by the adoption of comparative negligence, Act of May 23,1969, ch. 624, § 1,1969 Minn.Laws 1069 (codified as Minn.Stat. § 604.01 (1969)). The pertinent part of section 604.-01 provided:
COMPARATIVE NEGLIGENCE; EFFECT. Subdivision 1. Scope of application. Contributory negligence shall not bar recovery in an action by any person or his legal representative to recover damages for negligence resulting in death or in injury to person or property, if such negligence was not as great as the negligence of the person against whom recovery is sought, but any damages allowed shall be diminished in the proportion to the amount of negligence attributable to the person recovering.
Then, in 1977, the Civil Damage Act, commonly known as the Dram Shop Act, incorporated comparative negligence by amendment, adding the following language: “Actions for damages based upon liability imposed by this section shall be governed by section 604.01.” Act of June 2, 1977, ch. 390, § 1, 1977 Minn.Laws 887. Section *280604.01 was later amended and now encompasses the notion of “comparative fault.” Act of April 5, 1978, ch. 738, § 6, 1978 Minn.Laws 836. We have continually held that this “dram shop” field is preempted by the Civil Damage Act. Holmquist v. Miller, 367 N.W.2d 468 (Minn.1985); Meany v. Newell, 367 N.W.2d 472 (Minn.1985).
The Court of Appeals held that, given the changes in contributory negligence and the inclusion of section 604.01 into the Civil Damage Act, the legislature intended that complicity should be fault, to be compared with the bar owner’s “fault” of serving alcohol, just as the advent of comparative negligence consumed assumption of risk. Prior to 1977, judicially created law allowed complicity to operate as a bar to recovery. Martinson v. Monticello Municipal Liquors, 297 Minn. 48, 209 N.W.2d 902 (1973); Heveron v. Village of Belgrade, 288 Minn. 395, 181 N.W.2d 692 (1970); Turk v. Long Branch Saloon, 280 Minn. 438, 159 N.W.2d 903 (1968). It is not surprising, and it must be presumed, that the legislature clearly intended to preempt the field and eliminate this judicial concept as a bar, just as it did in eliminating contributory negligence and secondary assumption of risk as a bar in the tort field.
The majority’s retention of the complicity doctrine as a complete bar to claims under the Civil Damage Act perpetuates arbitrary distinctions among parties suing under the Act. The majority would bar the injured party from commencing a suit under the Act even though his only contribution to the intoxication of his companion was the purchase of one drink. Yet in Hempstead v. Minneapolis Sheraton Corp., 283 Minn. 1, 166 N.W.2d 95 (1969), we held that a person who had accompanied the intoxicated person all evening, and who knew the person was a minor but did not disclose this fact to the liquor establishments, was not barred from recovering under the Civil Damage Act for injuries sustained as a result of that intoxicated person’s conduct because she did not purchase, procure for, or participate in the illegal sale of liquor to her companion. It is arbitrary to distinguish between a person who buys one drink for a companion and a person who spends an entire evening with a person, knowing that that person is buying alcohol illegally. Application of comparative fault in these cases would result in a more equitable method for determining how much a person who has actively participated in the intoxication of another is at fault.
Why we should ignore the active and progressive legislative reform in this area is difficult to understand. There is no reason to retain this outmoded and arbitrary judicial doctrine in Minnesota in light of the clear intent to move to a more complete comparative negligence policy in the tort field.
I would discard this judicial construction and affirm the Court of Appeals.