{24}     While the wisdom of serving alcohol for twenty-four hours a day as part of a Memorial Day promotion may be debatable, an alcohol distributor's actions in selling alcohol to such an establishment does not make the foreseeability of a drunk driving accident anything more than mere speculation on the part of the distributor.  We therefore conclude that the foreseeability component of duty of care has not been met in this case.  However, although we have concluded that foreseeability is not met, we will also address the policy component of duty of care, because that actually presents a stronger case for our determination that Defendants do not owe Plaintiffs a duty.  See Lozoya v. Sanchez, 2003-NMSC-009, ¶ 15, 133 N.M. 579, 66 P.3d 948 ("Our duty rule also asks whether any public policy factors preclude the court from imposing a duty of care toward a foreseeable plaintiff.").
b.     Policy Considerations Do Not Support
Imposing a Duty on Defendants
{25}     Even if foreseeability is met in a particular case, an examination of relevant policy is also required to determine whether imposing a duty is supported by law.  Herrera, 2003-NMSC-018, ¶ 21.  "For guidance on questions of policy, we look to general legal propositions we may infer from legal precedent within our own state and from other jurisdictions, and we look as well to any relevant statutes, learned articles, or other reliable indicators of `community moral norms and policy views[.]'"  Davis v. Bd. of County Comm'rs, 1999-NMCA-110, ¶ 14, 127 N.M. 785, 987 P.2d 1172 (quoting Sanchez v. San Juan Concrete Co., 1997-NMCA-068, ¶ 12, 123 N.M. 537, 943 P.2d 571).
{26}     Plaintiffs argue that policies within the Liquor Control Act and the adoption of comparative fault in New Mexico support imposing a duty in the present case.  We address each argument in turn and conclude that relevant policy considerations counsel against finding a duty in the present matter.
{27}     Plaintiffs claim that even if the Liquor Control Act is not applicable to the Casino, the policies contained within that Act are still applicable to Defendants and as such, Defendants owed a duty to Plaintiffs to abide by those policies.  Plaintiffs argue that New Mexico has a strong policy against the service of alcohol to individuals who create exceptional dangers to the public.  Plaintiffs point out that our legislature has created private causes of action relating to the sale of alcohol to minors and to individuals who are already intoxicated.  See NMSA 1978, § 41-11-1 (1986).  Plaintiffs also claim that the legislature's restriction on the hours and days that alcohol may be sold or served represents another attempt to combat the dangers of alcohol consumption.  See § 60-7A-1.  While we agree with Plaintiffs that restrictions on hours and days of alcohol sales may be another tool used by the legislature to control alcohol consumption, we are not persuaded that such a policy imposes a duty in the present case.
{28}     As previously discussed, the restriction on hours and days of alcohol sales did not apply to the Casino in this case.  Moreover, Defendants point out that the State could have applied these restrictions to Indian tribes if it had wanted to.  In addition to explicitly exempting Indian tribes from the provisions of the Liquor Control Act, see § 60-3A-5(D), the State chose not to include hour or day restrictions within its gaming compact with the Tribe.  See § 11-13-1.  Notably, the gaming compact does require the Tribe to comply with state law regarding the training of alcohol servers and also prohibits the sale of alcohol to already intoxicated individuals.  See § 11-13-1(4)(B)(15)(a).  Had the State wanted to provide a uniform system throughout New Mexico of operating hours for establishments serving alcohol, as Plaintiffs argue, it could have included hours and days restrictions in its gaming compact with the Tribe.  Cf. State ex rel. Duran v. Anaya, 102 N.M. 609, 611, 698 P.2d 882, 884 (1985) (concluding that if the legislature wanted to include notice and hearing requirements before removal of board members, it would have included such provisions in the statute); City of Roswell v. Smith, 2006-NMCA-040, ¶ 12, 139 N.M. 381, 133 P.3d 271 (stating that if the legislature wanted to regulate the representation of municipalities by attorneys, it could have included municipalities in the statute).  The absence of such restrictions in the gaming compact suggests that the Tribe was free to make its own laws regarding the sale of alcohol.
{29}     Similarly, if the legislature had wanted Defendants to abide by statewide policies concerning the sale of alcohol, it could have certainly included such a requirement within the wholesaler's license.  See Anaya, 102 N.M. at 611, 698 P.2d at 884; Smith, 2006-NMCA-040, ¶ 12.  Rather, Defendants' licensing requirements contemplate the sale of alcohol to tribal establishments acting in conformity with their own tribal laws and ordinances.  See § 60-6A-1(C).  Under Section 60-6A-1(C),
[n]o wholesaler shall sell or offer for sale alcoholic beverages to any person other than the holder of a New Mexico wholesaler's, retailer's, dispenser's, canopy, restaurant or club license, a governmental licensee or its lessee or an enterprise owned, operated or licensed by an Indian nation, tribe or pueblo within the state in conformity with an ordinance duly adopted by the Indian nation, tribe or pueblo having jurisdiction over the situs of the transaction within the area of Indian country, certified by the secretary of the interior, published in the federal register, according to the laws of the United States.
Where, as here, there is no indication that the Casino was not acting in conformity with the Tribe's laws and ordinances, Defendants' sale of alcohol to the Casino was expressly permitted by the wholesaler's license.  We do not think that Defendants are required to look beyond otherwise lawful sales of alcohol to establishments and determine the appropriateness of an establishment's own policies, particularly where there is no indication that the establishment is not acting in conformity with applicable laws and ordinances.  Such a requirement would necessarily "impose unreasonable and uncertain duties" on wholesalers that we do not think the legislature intended.  See Gabaldon v. Erisa Mortgage Co., 1999-NMSC-039, ¶ 37, 128 N.M. 84, 990 P.2d 197 (internal quotation marks and citation omitted).
{30}     Additionally, we observe that other jurisdictions considering the issue of distributor liability for alcohol-related accidents have declined to find alcohol distributors liable where there is no evidence that the distributor had any control over the service of alcohol.  See Foster v. Purdue Univ. Chapter, the Beta Mu of Beta Theta Pi, 567 N.E.2d 865, 869 (Ind. Ct. App. 1991) (holding no distributor liability where alcohol was legally purchased by fraternity members who were of the legal drinking age and distributor had no right to control the consumption of beer at party); Fox v. Clare Rose Beverage, Inc., 692 N.Y.S.2d 658, 659-60 (App. Div. 1999) (finding no liability where the distributor did not directly serve the alcohol to individuals at the party and had no opportunity to supervise the service of alcohol at the party or the consumption of alcohol by the partygoers); Schmidt v. Centex Beverage, Inc., 825 S.W.2d 791, 793 (Tex. Ct. App. 1992) (declining to impose liability where "[d]istributors have neither a right to control the amount of alcohol served nor a statutory duty to do so").  But see Peterson v. Jack Donelson Sales Co., 281 N.E.2d 753, 756 (Ill. App. Ct. 1972) (finding liability in case with "rather unique circumstances" in which the wholesaler, in delivering the beer in a van specially equipped for dispensing and service, essentially "provided a dram shop where the . . . decedent and others could become intoxicated").
{31}     We find the reasoning in Fox, Schmidt, and Foster persuasive.  We observe that our legislature has placed limitations on the ability of third parties to recover against those who provide alcoholic beverages to intoxicated persons.  Baxter v. Noce, 107 N.M. 48, 51-52, 752 P.2d 240, 243-44 (1988); Trujillo v. Trujillo, 104 N.M. 379, 382-84, 721 P.2d 1310, 1313-15 (Ct. App. 1986); Walker v. Key, 101 N.M. 631, 636, 686 P.2d 973, 978 (Ct. App. 1984).  Under New Mexico law, tort liability for the sale or service of alcohol is limited to those instances in which a Liquor Control Act licensee acts with gross negligence or reckless disregard in serving a person who is intoxicated.  See § 41-11-1(A), -(B).  Section 41-11-1(H) further provides that "[n]o person may seek relief in a civil claim against a licensee... for injury or death . . . which was proximately caused by the sale, service or provision of alcoholic beverages except as provided in this section."  This indicates that our legislature wanted to limit liability for alcohol-related injuries and deaths resulting from the sale or service of alcohol to those who actually exercised some degree of control over the service or consumption of alcohol.  In the absence of any such control or supervision, we do not believe that public policy supports imposing a duty in the present case.
{32}     As to Plaintiffs' argument that comparative fault supports imposing a duty in the present case, we find such an argument unpersuasive.  We note that the concept of comparative fault does not create new duties, but rather, "only explains why it would not be against public policy to impose a duty under these circumstances."  Quinn M. Bumgarner-Kirby, Note, The Continuing Debate over Tort Duty in New Mexico: The Role of Foreseeability and Policy in Herrera v. Quality Pontiac, 34 N.M. L. Rev. 433, 453 (2004); see also Gabaldon, 1999-NMSC-039, ¶ 27 ("[T]he mere lack of a prohibition does not constitute a mandate to create new duties or to apply old duties in new contexts." (internal quotation marks omitted)).  Thus while the adoption of comparative fault in New Mexico means that it would not be against public policy to find a duty owed, it does not necessarily follow that the imposition of such a duty is supported by public policy.  Where, as here, we conclude that public policy counsels against imposing a duty on behalf of a particular party, the concept of comparative fault is not helpful to our analysis.
CONCLUSION
{33}     We affirm the district court's dismissal of Plaintiffs' complaint under Rule 1-012(B)(6).
{34}     IT IS SO ORDERED.
LYNN PICKARD, Judge
WE CONCUR:
A. JOSEPH ALARID, Judge
JAMES J. WECHSLER, Judge
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