adopting the application of the doctrine set forth in Uniform Comparative Fault Act, §§ 1-6, 12 U.L.A. Supp. 35-45, in MissouriSummary of this case from Clark v. Rowe
November 22, 1983. As Modified on Denial of Rehearing December 20, 1983.
APPEAL FROM THE CIRCUIT COURT, ST. LOUIS COUNTY, NINIAN M. EDWARDS, J.
Gerre Langton, Sam P. Rynearson, St. Louis, for appellant.
Stephen H. Ringkamp, Thomas C. Hullverson, Hullverson, Hullverson Frank, St. Louis, for respondent.
The opinion of the court of appeals was reported in the advance sheets only. Gustafson v. Benda, 631 S.W.2d 655 (Mo.App. 1982). A copy of that opinion is attached to our slip opinion for convenience. It is now ordered that the court of appeals opinion officially be reported immediately following the report of this opinion. [Published at 661 S.W.2d 29]
The case involves a collision between plaintiff-respondent's motorcycle and defendant-appellant's automobile. The motorcycle was in the act of passing the automobile as the parties approached a "T" intersection. The accident occurred when appellant turned toward the left. The sole issue involved and certified for our reexamination is the definition of "the point of imminent peril" or "the point of immediate danger." If that point is as we have previously defined it in McClanahan v. St. Louis Public Service Co., 363 Mo. 500, 251 S.W.2d 704 (banc 1952), it is at the point at which appellant's automobile physically began to turn left, and, upon the facts of the case, respondent cannot recover. The court of appeals believed that McClanahan obliterated all distinction between the last clear chance and humanitarian negligence doctrines and that this Court should examine the governing law.
The detailed facts and a scholarly analysis thereof appear in the court of appeals opinion.
The common law doctrine of last clear chance comprises three basic situations: (1) a plaintiff in a position of actual peril and a defendant who knows of that peril; (2) a plaintiff in a position of actual peril and a defendant who in the exercise of the requisite degree of care should know of that peril; and (3) a plaintiff who because of his inattentiveness or obliviousness is in a position of peril and a defendant who knows of the plaintiff's position and knows or has reason to know of his obliviousness. 2 Harper James, The Law of Torts § 22.13, at 1245 (1956). Missouri's "humanitarian" doctrine allows recovery in a fourth situation, in which a plaintiff is in a position of peril because of his inattentiveness or obliviousness and a defendant is negligent only in his similar inattentiveness or obliviousness to plaintiff's peril. See id. See generally Becker, The Humanitarian Doctrine, The Work of the Missouri Supreme Court for the Year 1949, 15 Mo.L.Rev. 359 (1950).
In effect, the court of appeals has asked us to arrive at ultimate justice through a redefinition of the "point of imminent peril." The reexamination of the "point of imminent peril" so tactfully tendered by the court of appeals invites us to respond that there must be a better way to attain fairness and justice than to continue to indulge in fictions in the application of a bundle of antiquated and fairly inflexible rules of tort law.
Unless otherwise specified, the term "last clear chance" as used herein also encompasses Missouri's humanitarian doctrine.
[a] number of commentators have observed that last clear chance is one step, and a rather significant one, toward a system of comparative negligence. As pointed out by Fleming James, the first cases of contributory negligence dealt with situations where the plaintiff's negligence was later in point of time than the defendant's. The directness of the relationship between the act and the injury was emphasized rather than the negligent quality of the act. As the idea of negligence gained recognition, there was a shift to the culpability of the conduct involved.
James, Last Clear Chance: A Transitional Doctrine, 47 Yale L.J. 704 (1938); MacIntyre, The Rationale of Last Clear Chance, 53 Harv.L. Rev. 1225 (1940); Philbrick, Loss Apportionment in Negligence Cases, 99 U.Pa.L.Rev. 572 (1951).
James, supra note 5, at 704.
Whatever the difficulties implicit in the application of the doctrine of last clear chance, it did represent an attempt to shift the loss to the party who was more to blame. It was thus ethically and morally preferable to the prior rule that the slightest degree of negligence would bar the plaintiff's recovery. If all the intricacies of proximate cause, sequential negligence, and last opportunity are brushed aside and the problem viewed simply and realistically, it will be seen that the last clear chance cases represent nothing more or less than a comparison of fault.
As Dean Prosser has so aptly pointed out, however, the trouble with last clear chance is that it shifts the entire loss to the defendant. "It is still no more reasonable to charge the defendant with the plaintiff's share of the consequences of his fault than to charge the plaintiff with the defendant's; and it is no better policy to relieve the negligent plaintiff of all responsibility for his injury than it is to relieve the negligent defendant. The whole floundering, haphazard, make-shift device operates in favor of some plaintiffs by inflicting obvious injustice upon some defendants; but it leaves untouched the greater number of contributory negligence cases in which the necessary time interval or element of discovery does not appear and the last clear chance cannot apply." The obvious solution was a system of comparative negligence the adoption of which can be traced to a century of experience with last clear chance.
Prosser, Comparative Negligence, 51 Mich.L. Rev. 465 (1953).
Id. at 474.
H. Woods, The Negligence Case: Comparative Fault 14-15 (1978) (footnotes renumbered).
The inevitability of the evolution from contributory negligence through the doctrine of last clear chance to some form of comparative negligence or fault is demonstrated by the number of states now utilizing some form of comparison to determine fault and liability in tort cases. Forty states, Puerto Rico, and the Virgin Islands now utilize some form of comparative fault or negligence.
Thirty-two states, Puerto Rico, and the Virgin Islands have adopted comparative negligence or fault by statute. Ark.Stat.Ann. §§ 27-1763 to -1765 (1979); Colo.Rev.Stat. § 13-21-111 (1973 Supp. 1982); Conn. Gen. Stat. § 52-572h, -572 o (1983); Ga. Code Ann. § 105-603 (Supp. 1982); Haw.Rev.Stat. § 663-31 (1976); Idaho Code §§ 6-801 to -806 (1979); Ind. Code Ann. § 34-4-33-1 to 8 (Burns Supp. 1983); Kan. Stat. Ann. § 60-258a, 258b (1976); La. Civ. Code Ann. art. 2323 (West Supp. 1983); Me. Rev. Stat. Ann. tit. 14, § 156 (1964); Mass. Gen. Laws Ann. ch. 231, § 85 (Michie/Law.Coop.Supp. 1983); Minn. Stat. Ann. § 604.01-.02 (West Supp. 1983); Miss. Code Ann. § 11-7-15 (1972); Mont. Code Ann. §§ 27-1-702, -703 (1981); Neb. Rev. Stat. § 25-1151 (1979); Nev.Rev.Stat. § 41-141 (1979); N.H. Rev. Stat. Ann. § 507:7-a (Supp. 1979); N.J. Stat. Ann. §§ 2A:15-5.1 to -5.3 (West Supp. 1983-1984); N.Y. Civ. Prac. Law § 1411 (McKinney 1976); N.D.Cent. Code § 9-10-07 (1975); Ohio Rev. Code Ann. § 2315.19 (Page 1982); Okla. Stat. Ann. tit. 23, §§ 13-14 (West Supp. 1982-1983); Or. Rev. Stat. § 18-470 (1981); Pa. Stat. Ann. tit. 42, § 7102 (Purdon 1982 and Supp. 1983-1984); P.R. Laws Ann. tit. 31, § 5141 (1968); R.I.Gen. Laws §§ 9-20-4, -4.1 (Supp. 1982); S.D. Comp. Laws Ann. § 20-9-2 (1979); Tex. Rev. Civ. Stat. Ann. art. 2212a (Vernon Supp. 1982-1983); Utah Code Ann. §§ 78-27-37 to -43 (1953); V.I. Code Ann.tit. 5, § 1451 (Supp. 1982); Vt. Stat. Ann. tit. 12, § 1036 (Supp. 1983); Wash. Rev. Code Ann. §§ 4.22.005-.920 (Supp. 1983-1984); Wis. Stat. Ann. § 895.045 (West 1983); Wyo.Stat. § 1-1-109 (1977). Eight other states have done so by judicial decision. Kaatz v. State, 540 P.2d 1037 (Alaska 1975); Li v. Yellow Cab Co., 13 Cal.3d 804, 532 P.2d 1226, 119 Cal.Rptr. 858 (1975); Hoffman v. Jones, 280 So.2d 431 (Fla. 1973); Alvi v. Ribar, 85 Ill.2d 1, 52 Ill. Dec. 23, 421 N.E.2d 886 (1981); Goetzman v. Wichern, 327 N.W.2d 742 (Iowa 1982); Kirby v. Larson, 400 Mich. 585, 256 N.W.2d 400 (1977); Scott v. Rizzo, 96 N.M. 682, 634 P.2d 1234 (1981); Bradley v. Appalachian Power Co., 256 S.E.2d 879 (W.Va. 1979).
In 1977 this Court on its own motion invited all interested parties to brief and argue the question whether it should adopt comparative negligence. Epple v. Western Auto Supply Co., 557 S.W.2d 253 (Mo. banc 1977). At that time the Court reiterated the view expressed in Anderson v. Cahill, 528 S.W.2d 742$ 749 (Mo. banc 1975), that it had the inherent power to do so, but it deferred the matter to the legislature, which had recently been considering comparative negligence bills.
The following year, this Court took a step in the direction of "comparative fault" when it abandoned the concept of "active-passive negligence" in favor of "comparative fault" in multiple defendant cases. Missouri Pacific Railroad v. Whitehead Kales Co., 566 S.W.2d 466 (Mo. banc 1978). During what might be described as the shakedown period for Whitehead Kales and its newly adopted concept of comparative fault, the Court again deferred to the legislature and declined to adopt a comprehensive system of comparative fault by judicial decision. Steinman v. Strobel, 589 S.W.2d 293 (Mo. banc 1979).
The cases coming before this Court lead us to believe that Missouri lawyers have treated Whitehead Kales as an invitation for them to try all multiple defendant cases on the theory of comparative fault. Although Missouri lawyers have pursued with vigor the direction pointed by Whitehead Kales, our opinions have recognized exceptions to the application of Whitehead Kales. In State ex rel. Maryland Heights Concrete Contractors, Inc. v. Ferriss, 588 S.W.2d 489 (Mo. banc 1979), we recognized the statutory immunity of employers in worker's compensation cases and declined to leave them as a party defendant for the sole purpose of determining their comparative fault. In Parks v. Union Carbide Corp. (Chemlime), 602 S.W.2d 188 (Mo. banc 1980), contractual liability was excluded from comparison in multiple defendant cases. In State ex rel. Tarrasch v. Crow, 622 S.W.2d 928 (Mo. banc 1981), we limited our decision to the release in question rather than state a general policy regarding releases, thereby leaving open the general question of how released parties would be handled with regard to comparison of their fault. In Kendall v. Sears, Roebuck Co., 634 S.W.2d 176 (Mo. banc 1982), we reaffirmed our commitment to parental immunity and declined to keep the parent a party for the purpose of determining his comparative fault. In Safeway Stores, Inc. v. City of Raytown, 633 S.W.2d 727 (Mo. banc 1982), we permitted relative or comparative fault to be determined in a separate and subsequent action.
We have remained quiescent more than five years while waiting for the legislature to act. In Steinman v. Strobel, Chief Justice Donnelly wrote:
I am mindful of the classical common law process articulated in R. Bridwell and R. Whiten, The Constitution and the Common Law 13-15 (Lexington, Massachusetts: D.C. Heath and Company, 1977). That process is given flexibility to embrace change by the doctrine "of desuetude, or the repeal of custom by disuse. Just as custom would be gradually introduced and adopted by consent, so might it gradually be abrogated by the `tacit consent of all.'" Id. at 22.
In James, Comments on Maki v. Frelk, 21 Vand.L.Rev. 891, 895 (1968), it was noted "that juries now do for plaintiffs illicitly what the change [to comparative negligence] would do for them forthrightly. * * * Juries * * * probably speak for the community sense of fairness more faithfully than do legislatures. Consistent jury acceptance of proportional negligence * * * suggests that legislative failure to enact this reform reflects inertia rather than community sentiment."
589 S.W.2d at 296 (emphasis added to last sentence).
In the interim, our opinions have left the practicing bar with little guidance as to the basis, extent, and consequences of the doctrine of comparative fault that we enunciated in Whitehead Kales. We now are past the time when we should have resolved the uncertainty surrounding comparative fault by expanding the application of the doctrine. We believe the bar anticipated and expected that we would do so.
Little more can be said about the historical development of the philosophy of the doctrine of comparative fault than what we have already written in Whitehead Kales, Steinman, Chemlime, Maryland Heights, Tarrasch, Kendall, and Safeway. Our five years of experience with a limited application of comparative fault fully demonstrates that fairness and justice can best be achieved through a broader application of that doctrine. It is workable and will fulfill the needs of our complex modern society.
Expansion of comparative fault as first enunciated in Whitehead Kales is in the best interest of all litigants. Comparative fault affords practicing attorneys a less complex and far more effective method for representing the rights of their clients, either plaintiff or defendant. Joining all parties to a transaction in a single lawsuit for the comparison of the fault of all concerned can best expedite litigation and relieve the congestion of overcrowded courts.
All that remains is for us to find the simplest and most clear, concise, and direct method for adopting a comprehensive system of comparative fault for the trial of tort cases and a procedure for accomplishing the transition to comparative fault. The first step is to reverse and remand this case for retrial based upon the comparative fault of the parties. Except for the instant case and interim cases where the parties can mutually agree, comparative fault shall apply only in cases in which the trial begins after the date of the publication of this opinion in the advance sheets of the Southwestern Reporter. Insofar as possible this and future cases shall apply the doctrine of pure comparative fault in accordance with the Uniform Comparative Fault Act §§ 1-6, 12 U.L.A. Supp. 35-45 (1983), a copy of which, with commissioners' comments, is appended to this opinion as Appendix A. By this opinion we do not intend to impair the existing right of a claimant to recover the total amount of his judgment against any defendant who is liable.
The General Assembly's recent revision of § 537.060, RSMo 1978, prescribing a method of apportioning a judgment against multiple tortfeasors when one defendant has obtained a release, conflicts with the method outlined in § 6 of the Uniform Comparative Fault Act. The amended provision in relevant part provides:
When an agreement by release, covenant not to sue or not to enforce a judgment is given in good faith to one of two or more persons liable in tort for the same injury or wrongful death such agreement shall not discharge any of the other tortfeasors for the damage unless the terms of the agreement so provide, however such agreement shall reduce the claim by the stipulated amount of the agreement, or in the amount of consideration paid, whichever is greater. The agreement shall discharge the tortfeasor to whom it is given from all liability for contribution or non-contractual indemnity to any other tortfeasor. The term "non-contractual indemnity" as used in this section refers to indemnity between joint tortfeasors culpably negligent, having no legal relationship to each other and does not include indemnity which comes about by reason of contract, or by reason of vicarious liability.
1983 Mo.Legis.Serv. 398-99 (Vernon) (emphasis added). The Uniform Act reduces the amount of the plaintiff's claim against remaining defendants "by the amount of the released person's equitable share of the obligation," rather than by the amount for which the release was obtained. Section 537.060, as amended, is modeled after § 4(a) of the Uniform Contribution Among Tortfeasors Act (1955). See 12 Uniform Laws Annotated 63, 98 (1975). The comment appended to § 6 of the Uniform Comparative Fault Act indicates that its drafters chose not to adopt this approach because "it may be unfair to the other defendants and if the goodfaith requirement is conscientiously enforced settlements may be discouraged."
We believe the approach taken in § 6 has the advantage of treating both plaintiffs and defendants equitably while also being logically consistent with the principle of proportionate fault. We doubt that either plaintiffs or defendants want their verdicts to depend on judicial determination of "good faith." Therefore, we respectfully invite the General Assembly to reconsider the language in § 537.060, as amended. In the meantime, however, insofar as § 6 is inconsistent with § 537.060, we will defer to the terms of the statute.
See H. Woods, The Negligence Case: Comparative Fault 381-406 (Cum.Supp. 1983) for possible suggested forms.
Because we supplant the doctrines of contributory negligence, last clear chance, and humanitarian negligence with a comprehensive system of comparative fault, this cause must be, and is, reversed and remanded for a new trial based upon a determination of the comparative fault of the parties.
Reversed and remanded for a new trial consistent with this opinion.
HIGGINS and DONNELLY, JJ., and SEILER, Sr. Judge, concur.
BILLINGS, J., concurs in separate opinion filed.
RENDLEN, C.J., dissents in separate opinion filed.
GUNN, J., dissents in separate opinion filed.
BLACKMAR, J., not participating because not a member of the Court when cause was submitted. APPENDIX A
UNIFORM COMPARATIVE FAULT ACT
The Uniform Comparative Fault Act Uniform State Laws in 1977. Section 3 was approved by the National of the Act was amended by the Conference of Commissioners on National Conference in 1979.
Commissioners' Prefatory Note
Plaintiff's Fault. The harsh all-or-nothing rule of contributory negligence at common law has not been properly ameliorated by the several exceptions also developed at common law. Whether the general rule or an exception applies, one party or the other is always treated unfairly. This has been widely recognized and, at the present time (1977), the Federal Government and two-thirds of the States (33) have adopted some form of comparative fault. This is usually by statute but also by judicial decision.
The language of the statutes varies considerably, and the form adopted often comes about as a result of a political compromise and without adequate consideration of the practical implications. This Uniform Act has been worked on for five years by a special committee, which has had the benefit of comments from many sources. Careful consideration has been given to all potential problems, and specific provisions are made for most of them. This Act therefore serves two important purposes: (1) it addresses the problems and provides what are regarded as the best solutions for them, and (2) it provides the opportunity for creating a desirable uniformity throughout the country.
A very important question arises in the very beginning: What type of comparative fault should be adopted? The "pure type" is presently followed by the Federal Government, nine states and almost all common law jurisdictions outside the United States. Many states, however, have adopted a modified type, which takes one of two forms, providing that a plaintiff who is at fault can recover diminished damages but that he cannot recover if his negligence either (1) "is equal to," or (2) "is greater than," that of the defendant.
The modified type has several serious logical and practical disadvantages:
1. If both parties have been injured, the modified type forces one party to bear all of his own loss, together with the greater part of the other party's loss, in addition. This result is therefore worse than that of the common law contributory negligence rule. A slight alleviation under the not-greater-than form, which allows recovery when the parties are each 50% at fault, forces a cognizant jury always to find for 50% negligence if it wants to reach a fair result.
2. If there are several defendants at fault, the modified type produces a confused jumble. The plaintiff's fault may be less than that of some defendants and greater than that of others. If defendants having to pay seek contribution from those not under obligation to the plaintiff, the answer is uncertain; and when counterclaims arise, no solution seems available. The problem is avoided in some modified-type states by providing that the plaintiff's negligence bars recovery only if it is greater than the combined negligence of all the defendants. Although this is a helpful provision, it is essentially adopting the pure form in this situation.
3. If the plaintiff's fault is greater than that of the defendant, he cannot recover under the modified type. Yet, if, as a result of this, the statute leaves him under the common law, including its exceptions (such as last clear chance, or ordinary contributory negligence in an action based on strict liability) he can nevertheless recover full damages, if he comes within an exception. The anomaly therefore arises that he may be better off if his negligence is found to be greater than that of the defendant and he thus recovers full damages, that if his negligence is found to be less than that of the defendant and his damages are diminished.
4. A difference of a single point in the percentage of fault allocated to the claimant may determine whether he can recover anything at all — not just how much. It is quite unrealistic to expect a jury to reach a decision this precise and then require the whole issue of liability to depend upon it. An arbitrary decision of this nature is very conducive to appeals and the development of highly technical distinctions by the appellate court.
The single disadvantage urged against the pure type is that it fails to prevent the bringing of "nuisance suits." Yet the cure of the modified form is distinctly an overcure, and therefore worse than the disease. How many more times is the plaintiff's negligence likely to be form 51% to 90% of the total than it is to be 90 to 100% of the total? And when it approximates 100% — the true nuisance claim — the trial court may be expected to control the matter.
The innate fairness of the pure type contrasts with the non discriminating rough justice of the modified type, which casts out many justified claims in order to be sure to eliminate a few unjustified ones, and impels the decision for the pure form. It is significant that when the courts, as distinguished from the legislatures have adopted a form of comparative fault, the great majority of them have selected the pure type, and the England, Ireland, the Canadian provinces and Australian states have all adopted the pure form.
Contribution. The original common law rule was that there is no contribution among joint tortfeasors, no matter what the nature of the tort. Some states, however, have judicially modified this rule, especially in the case of negligence. Many more states have passed statutes of various kinds providing for contribution, with the result that a substantial majority of the states now have contribution in some form and the Restatement (Second) of Torts § 886A, now provides for it.
The NCCUSL has promulgated two uniform contribution Acts — the first in 1939, superseded by a revised act in 1955. Both of these Acts provide for pro rata contribution, which may be suitable in a state not applying the principle of comparative fault, but is inappropriate in a comparative-fault state apportioning ultimate responsibility on the basis of the proportionate fault of the parties involved.
It has therefore been decided not to amend the separate Uniform Contribution Among Tortfeasors Act, 1955, but to leave that Act for possible use by states not adopting the principle of comparative fault. Instead, the present Act contains appropriate sections covering the rights existing between the parties who are jointly and severally liable in tort. The 1955 Act should be replaced by this Act in any state that adopts the comparative fault principle, and would be eventually replaced.
UNIFORM COMPARATIVE FAULT ACT
1. Effect of Contributory Fault. 7. Uniformity of Application and 2. Apportionment of Damages. Construction. 3. Set-off. 8. Short Title. 4. Right of Contribution. 9. Severability. 5. Enforcement of Contribution. 10. Prospective Effect of Act. 6. Effect of Release. 11. Repeal.
Law Review Commentaries
Assumption of risk and misuse in John W. Wade. 40 La.L.Rev. 299 strict tort liability; prelude to (1980). comparative fault. James B. Sales. 11 Texas Tech L.Rev. 729 (1980). Contribution among antitrust violators. 29 Catholic U.L.Rev. 669 Comparative contribution. 14 (1980). John Marshall L.Rev. 173 (1980). Judicial adoption of Comparative Comparative negligence collides fault in South Carolina. Jerry J. with strict liability. 19 Washburn Phillips. 32 S.C.L.Rev. 295 (1980). L.J. 76 (1979). Uniform Comparative Fault Act: Comparative negligence: What should it provide? John W. Development in the United States Wade. 10 U.Mich.J.L.Rev. 220 (1977). and status in Louisiana.
Section 1. [Effect of contributory Fault]
(a) In an action based on fault seeking to recover damages for injury or death to person or harm to property, any contributory fault chargeable to the claimant diminishes proportionately the amount awarded as compensatory damages for an injury attributable to the claimant's contributory fault, but does not bar recovery. This rule applies whether or not under prior law the claimant's contributory fault constituted a defense or was disregarded under applicable legal doctrines, such as last clear chance.
(b) "Fault" includes acts or omissions that are in any measure negligent or reckless toward the person or property of the actor or others, or that subject a person to strict tort liability. The term also includes breach of warranty, unreasonable assumption of risk not constituting an enforceable express consent, misuse of a product for which the defendant otherwise would be liable, and unreasonable failure to avoid an injury or to mitigate damages. Legal requirements of causal relation apply both to fault as the basis for liability and to contributory fault. Commissioners' Comment
This Section states the general and compared, even though it is not principle, that a plaintiff's characterized as negligence. contributory fault does not bar his recovery but instead apportions An action for breach of warranty is damages according to the held to sound sometimes in tort and proportionate fault of the parties. sometimes in contract. There is no intent to include in the coverage of Harms Covered. The specific the Act actions that are fully application of that principle, as contractual in their gravamen and in provided for in this Act, is which the plaintiff is suing solely confined to physical harm to person because he did not recover what he or property. But it necessarily contracted to receive. The restriction includes consequential damages of coverage to physical harms to deriving from the physical harm person or property excludes these such as doctor's bills, loss of claims. wages or costs of repair or replacement of property. It does The Act does not include intentional not include matters like economic torts. Statutes and decisions have not loss resulting from a tort such applied the comparative fault as negligent misrepresentation, principle to them. But a court or interference with contractual determining that the general principle relations or injurious falsehood, should apply at common law to a case or harm to reputation resulting before it of an intentional tort is from defamation. But failure to not precluded from that holding by include these harms specifically the Act. in the Act is not intended to preclude application of the For certain types of torts, such as general principle to them if a nuisance, the defendant's conduct may court determines that the common be intentional, negligent or subject law of the state would make the to strict liability. In the latter two application. instances the Act would apply, but not in a case in which the defendant Conduct Covered. (a) intentionally inflicts the injury on Defendant's Conduct. The Act the plaintiff. applies to "acts or omissions that are in any measure negligent or A tort action based on violation of reckless toward the person or a statute is within the coverage of property . . . of others." This the Act if the conduct comes within includes the traditional action the definition of fault and unless for negligence but covers all the statute is construed as intended negligent conduct, whether it to provide for recovery of full damage comes within the traditional irrespective of contributory fault. negligence action or not. It includes negligence as a matter of (b) Plaintiff's Conduct. "Fault," law, arising from court decision or as defined in Subsection (b), includes criminal statute. "In any measure" conduct of the plaintiff or other is intended to cover all degrees claimant, as well as a defendant. and kinds of negligent conduct without the need of listing them "Contributory fault chargeable to specifically. the claimant" includes legally imputed fault as in the cases of principle In some states reckless conduct and agent and of an action for loss goes by a different name, such as of services of a spouse. It also willful or wanton misconduct. The covers a situation in which fault is decision must be made in the not imputed but would still have particular state whether the barred recovery prior to passage of language used in sufficiently broad the Act — as, for example, a for the purpose or if additional wrongful-death action in which the language is needed. decedent's contributory negligence would have barred recovery even Although strict liability is though it was not imputed to the sometimes called absolute liability person bringing the action. or liability without fault, it is still included. Strict liability Contributory fault diminishes for both abnormally dangerous recovery whether it was previously a activities and for products bears a bar or not, as, for example, in the strong similarity to negligence as case of ordinary contributory a matter of law (negligence per negligence in an action based on se), and the factfinder should have strict liability or recklessness. no real difficulty in setting Last clear chance is expressly percentages of fault. Putting out a included with its variations. product that is dangerous to the user or the public or engaging in "Assumption of risk" is a term with an activity that is dangerous to a number of different meanings — only those in the vicinity involves one of which is "fault" within the a measure of fault that can be weighed COMPARATIVE FAULT ACT
meaning of this Act. This is the 1979 Addition to Comment: case of unreasonable assumption of Adaptation of the Act to risk, which might be likened to Modified Form of Comparative deliberate contributory negligence Negligence. If a state now using and means that the conduct must the modified form of comparative have been voluntary and with negligence should decide that in the knowledge of the danger. As used light of its experience it is wedded in this Act, the term does not to that form and not willing to change include the meanings (1) of a to the pure form, the Act may be valid and enforceable consent adapted for this purpose, as indicated (which is treated like other below, by adding the words in italics: contracts), (2) of a lack of violation of duty by the defendant Section I. [Effect of Contributory (as in the failure of a land-owner Fault] to warn a licensee of a patent danger on the premises), or (3) of (a) In an action based on fault a reasonable assumption of risk seeking to recover damages for (which is not fault and should not injury or death to person or harm to have the effect of barring property, any contributory fault recovery). chargeable to the claimant, if not greater than the combined "Misuse of a product" is a term fault of all other parties to also with several meanings. The the claim, including third-party meaning in this Section is confined defendants and persons released to a misuse giving rise to a danger under Section 6, diminishes that could have been reasonably proportionately the amount awarded as anticipated and guarded against. compensatory damages for an injury The Act does not apply to a misuse attributable to the claimant's giving rise to a danger that could contributory fault, but does not bar not reasonably have been recovery. This rule applies whether or anticipated and guarded against by not under prior law the claimant's the manufacturer, so that the contributory fault constituted a product was therefore not defective defense or was disregarded under or unreasonably dangerous. applicable legal doctrines, such as last clear chance. The doctrine of avoidable consequences is expressly included (b) Whenever both parties to in the coverage. a claim and counterclaim have sustained damage caused by fault Causation. For the or both, each party can recover conduct stigmatized as fault to from the other in proportion have any effect under the to their relative fault in provisions of this Act it must have accordance with Section 3, had an adequate causal relation to regardless of whose fault is the claimant's damage. This includes the greater. the rules of both cause in fact and proximate cause. (c) "Fault" includes acts or omissions that are in any measure "Injury attributable to the negligent or reckless toward the claimant's contributory fault" person or property of the actor or refers to the requirement of a others, or that subject a person causal relation for the particular to a strict tort liability. The term damage. Thus, negligent failure to also includes breach of warranty, fasten a seat belt would diminish unreasonable assumption of risk not recovery only for damages in which constituting and enforceable express the lack of a seat-belt restraint consent, measure of a product for played a part, and not, for which the defendant otherwise would example, to the damage to the car. be liable, and unreasonable failure A similar rule applies to a to avoid an injury or to mitigate defendant's fault; a physician, for damages. Legal requirements of causal example, negligently setting a relation apply both to fault as the broken arm, is not liable for basis for liability and to other injuries received in an contributory fault. automobile accident.
Negligence 97 to 101. C.J.S. Negligence §§ 131, 169 et seq.
Section 2. [Apportionment of Damages]
(a) In all actions involving fault of more than one party to the action, including third-party defendants and persons who have been released under Section 6, the court, unless otherwise agreed by all parties, shall instruct the jury to answer special interrogatories or, if there is no jury, shall make findings, indicating:
(1) the amount of damages each claimant would be entitled to recover if contributory fault is disregarded; andCOMPARATIVE FAULT ACT
(2) the percentage of the total fault of all of the parties to each claim that is allocated to each claimant, defendant, third-party defendant, and person who has been released from liability under Section 6. For this purpose the court may determine that two or more persons are to be treated as a single party.
(b) In determining the percentages of fault, the trier of fact shall consider both the nature of the conduct of each party at fault and the extent of the causal relation between the conduct and the damages claimed.
(c) The court shall determine the award of damages to each claimant in accordance with the findings, subject to any reduction under Section 6, and enter judgment against each party liable on the basis of rules of joint-and-several liability. For purposes of contribution under Sections 4 and 5, the court also shall determine and state in the judgment each party's equitable share of the obligation to each claimant in accordance with the respective percentages of fault.
(d) Upon motion made not later than [one year] after judgment is entered, the court shall determine whether all or part of a party's equitable share of the obligation is uncollectible from that party, and shall reallocate any uncollectible amount among the other parties, including a claimant at fault, according to their respective percentages of fault. The party whose liability is reallocated is nonetheless subject to contribution and to any continuing liability to the claimant on the judgment.
Parties. It is assumed conduct of the claimant or of any that the state procedure provides defendant may be more or less at for bringing in third-party fault, depending upon all the defendants as parties. If not, circumstances including such matters the procedural statutes or rules as (1) whether the conduct was mere may need to be amended to permit inadvertence or engaged in with an it, at least for purposes of awareness of the danger involved, (2) contribution. the magnitude of the risk created by the conduct, including the number of The limitation to parties to the persons endangered and the potential action means ignoring other persons seriousness of the injury, (3) the who may have been at fault with significance of what the actor was regard to the particular injury but seeking to attain by his conduct, (4) who have not been joined as the actor's superior or inferior parties. This is a deliberate capacities, and (5) the particular decision. It cannot be told with circumstances, such as the existence certainty whether that person who of an emergency requiring a hasty actually at fault or what amount of decision. fault should be attributed to him, or whether he will ever be A rule of law that a particular sued, or whether the statute of defendant owes a higher degree of care limitations will run on him, etc. (as in the case of a common carrier An attempt to settle these matters of passengers) or a lesser degree of in a suit to which he is not a care (as in the case of an automobile party would not be binding on him. host in a state having a valid Both plaintiff and defendants will automobile-guest statute) or that no have significant incentive for negligence is required (as in the case joining available defendants who of conducting blasting operations in may be liable. The more parties an urban area) is important in joined whose fault contributed determining whether he is liable at to the injury, the smaller the all. If the liability has been percentage of fault allocated to established, however, the rule itself each of the other parties, whether does not play a part in determining plaintiff or defendant. the relative proportion of fault of this party in comparison with the In situations such as that of others. But the policy behind the principal and agent, driver and rule may be quite important. An owner of a car, or manufacturer and error in driving on the part of a retailer of a product, the court bus driver with a load of passengers may under appropriate circumstances may properly produce an evaluation of find that the two persons should be greater fault than the same error on treated as a single party for the part of a housewife gratuitously purposes of allocating fault. giving her neighbor a ride to the shopping center; and an automobile Percentages offault. In comparing the fault of the several parties for the purpose of obtaining percentages there are a number of implications arising from the concept of fault. The COMPARATIVE FAULT ACT
manufacturer putting out a car defendants, and of a rule abolishing with a cracked brake cylinder may, joint-and-several liability, which even in the absence of proof of would cast the total risk of negligence in failing to discover uncollectibility upon the claimant. the crack, properly be held to a greater measure of fault than Control by the court. The total another manufacturer producing a total of the several percentages of mechanical pencil with a defective fault for the plaintiff and all clasp that due care would have defendants, as found in the special discovered. interrogatories, should add up to 100%. Whether the court will inform In determining the relative the jury of this will depend upon the fault of the parties, the local practice. fact-finder will also give consideration to the relative The court should be able to closeness of the causal exercise any usual powers under relationship of the negligent existing law of setting aside or conduct of the defendants and modifying a verdict if it is the harm to the plaintiff. internally inconsistent or shows bias Degrees of fault and proximity of or prejudice, etc. On the same basis causation are inextricably mixed, as the remittitur principle, a court as a study of last clear chance might indicate its intent to set aside indicates, and that common law a percentage allocation unless the doctrine has been absorbed in parties agreed to a somewhat different this Act. This position has been one. followed under statutes making no specific provision for it. Illustration No. 1. (Simple 2-party situation). Joint and Several A sues B. A's damages are $10,000. Liability and Equitable A is found 40% at fault. Shares of the Obligation. B is found 60% at fault. The common law rule of A recovers judgment for $6,000. joint-and-several liability of joint tortfeasors continues to Illustration No. 2 (Multiple-party apply under this Act. This is situation). true whether the claimant was A sues B, C and D. A's damages are contributorily negligent or not. $10,000. The plaintiff can recover the total A is found 40% at fault. amount of his judgment against any B is found 30% at fault. defendant who is liable. C is found 30% at fault. D is found 0% at fault. The judgment for each claimant A is awarded judgment jointly and also sets forth, however, the severally against B C for $6,000. equitable share of the total The court also states in the judgment obligation to the claimant for each the equitable share of the obligation party, based on his established of each party: percentage of fault. This indicates the amount that each party should A's equitable share is $4,000 (40% eventually be responsible for as of $10,000). a result of the rules of B's equitable share is $3,000 (30% contribution. Stated in the of $10,000). judgment itself, it makes the. C's equitable share is $3,000 (30% information available to the of $10,000). parties and will normally be a basis for contribution without the Illustration No. 3. (Reallocation need for a court order arising from computation under Subsection (d)). motion or separate action. Same facts as in Illustration No. 2. Reallocation. Reallocation of the equitable share of the On proper motion to the court, C obligation of a party takes place shows that B's share is uncollectible. when his share is uncollectible. The court orders that B's equitable share be reallocated between A and C. Reallocation takes place among A's equitable share is increased by all parties at fault. This includes $1,714 (4/7 of $3,000). a claimant who is contributorily at C's equitable share is increased by fault. It avoids the unfairness $1,286 (3/7 of $3,000). both of the common law rule at joint-and-several liability, which would cast the total risk of uncollectibility upon the solvent
Law Review Commentaries
Apportionment of losses under comparative fault laws. Richard N. Pearson. 40 La.L.Rev. 343 (1980).
Negligence 97. C.J.S. Negligence §§ 169, 170. COMPARATIVE FAULT ACT
Section 3. [Set-off]
A claim and counterclaim shall not be set off against each other, except by agreement of both parties. On motion, however, the court, if it finds that the obligation of either party is likely to be uncollectible, may order that both parties make payment into court for distribution. The court shall distribute the funds received and declare obligations discharged as if the payment into court by either party had been a payment to the other party and any distribution of those funds back to the party making payment had been a payment to him by the other party.
Section amended in 1979. As the insured is entitled to recover originally approved in 1977, from the carrier the amount of the section read: reduction. Amounts so recovered shall be credited against pertinent "A claim and counterclaim shall liability policy limits. For purposes be set off, and only the difference of uninsured-motorist and similar between them is recoverable in the coverages, the amounts so recovered judgment. However, if either or shall be treated as payment of those both of the claims are covered by amounts to the insured by the party liability insurance and an liable." insurance carrier's liability under its policy is reduced by reason of the set-off,
A set-off involves a single agree on a set-off, with A receiving claim and counterclaim. If there $40,000 from B. are multiple defendants, separate set-off issues may arise between a Illustration No. 6. claimant and each of several (No insurance; B is able to pay and defendants, but each set-off A is not.) As in Illustration 4, would be a separate issue, each party has $100,000 damages, A is determined independently of the 30% at fault and B is 70% at fault. others. The same principle applies Neither party has liability insurance in case of a cross-claim subject to coverage. B moves the court to require a counterclaim. both parties to make payment into court for distribution. Finding it Whether the rule is for or likely that A's obligation will be against set-off, if it should be uncollectible the court issues the applied categorically to all order. B pays into court $70,000; A situations it would produce can pay nothing. The court distributes unfair results in some of them. $40,000 to A and $30,000 back to B. In attaining a fair application to This is treated as if B had directly a particular factual situation, paid A $70,000 and A had directly consideration needs to be given to paid B $30,000 and the obligations of the circumstances of whether each both parties are extinguished. party is able to pay his obligation and whether the payment comes from Illustration No. 7. (A has his own pocket or from liability insurance; B does not and is unable to insurance covering him. The pay). The same facts as in provisions of this Section provide Illustration 6, but B has no insurance a fair solution to each situation, and cannot pay, while A has full as illustrated below. liability insurance. A's motion that both parties pay into court is Illustration No. 4. granted. A's insurance company pays (Parties fully covered by liability $30,000. A pays nothing. The court insurance.) A sues B. B distributes the $30,000 to A. counterclaims. Each is found to This extinguishes the liability of A have suffered $100,000 in damage. and his insurance company under the Each is fully covered by liability liability coverage, and B's liability insurance. A is found 30% at fault. to A reduced from $70,000 to $40,000. B is found 70% at fault. Under the For application of any statutory provision there is no uninsured-motorist coverage contained set-off except by agreement of the in A's insurance policy, the court's parties, and it would not be in delivery of the $30,000 to A is their best interests here to agree treated as a direct payment by B to A. to a set-off. A recovers $70,000 from B, and B recovers $30,000 Illustration No. 8. (Both from A. parties have inadequate insurance coverage and no other available Illustration No. 5. funds.) (No insurance but both parties able to pay judgments.) The A is 30% negligent, has damages of same facts as in Illustration 4, $50,000 and carries liability but there is no liability insurance of $20,000. B is 70% insurance. Each is able to pay the negligent, has damages of $100,000 and judgment against him. If the carries liability insurance of parties do not agree to a set-off, $30,000. A receives $70,000 from B, and B receives $30,000 from A. For their own convenience they may find it simpler to COMPARATIVE FAULT ACT
A therefore owes B $30,000 and is entitled to receive. D signifies has a claim against B of $35,000; the amount to be distributed to the and B owes A $35,000 and has a particular claimant from the funds claim against A of $30,000. paid into court; C signifies the amount of his claim after it has On granting of a motion to pay been reduced by the court because of into court, A's carrier pays his own negligence; O signifies the $20,000 which is initially amount that he is found by the court allocated to B as payment to him to owe to the other party; and P of $20,000 and reduces A's debt signifies the amount that he has paid to B to $10,000 and into court.
B's carrier pays $30,000, which Use of this formula in each of is initially allocated to A as illustrations above will reach exactly payment to him of $30,000 and the same result as that which is reduces B's debt to A to $5,000. stated in the illustration. Thus, in Illustration 8, the formula D=C — O+P The court now reallocates to B operates like this: $10,000 from A's initial allocation For A: $35,000 — $30,000+$20,000= of $30,000, leaving $20,000 for A. $25,000. For B: $30,000 — $35,000+ It also reallocates to A $5,000 $30,000=$25,000. from B's initial allocation of $20,000, leaving $15,000 for B. Observe that if use of the formula produces a negative number for one of A is thus entitled to the the two parties, it corresponds with a $20,000 remaining in the initial number larger by that figure than the allocation, plus $5,000 from the amount of deposit with the court and subsequent allocation, making a indicates that the party with the total of $25,000; and negative figure continues to owe that amount to the other party. This B is entitled to the $15,000 occurs, for example, in Illustration remaining in the initial No. 7. allocation, plus $10,000 from the subsequent allocation, making The system for distributing the a total of $25,000. funds outlined by the section is not the only one that could be utilized Of the $50,000 paid in, A but it appears to be the fairest and receives $25,000 and B receives most equitable. It gives due $25,000. All obligations are consideration to the relative amounts discharged. owed by each party and the relative amounts paid by each; and their For a complex illustration like relative fault is of course already No. 8, the process of tracking taken into consideration in literally the language of the determining the amounts of their Section is somewhat laborous enforceable claims. and difficult to work out. Fortunately, it is possible to reach exactly the same result much more simply and easily by using the formula, D=C — O+P to determine the amount each claimant
Set-Off and Counterclaim 22 et C.J.S. Set-Off and Counterclaim seq. § 23 et seq.
Section 4. [Right of Contribution]
(a) A right of contribution exists between or among two or more persons who are jointly and severally liable upon the same indivisible claim for the same injury, death, or harm, whether or not judgment has been recovered against all or any of them. It may be enforced either in the original action or by a separate action brought for that purpose. The basis for contribution is each person's equitable share of the obligation, including the equitable share of a claimant at fault, as determined in accordance with the provisions of Section 2.
(b) Contribution is available to a person who enters into a settlement with a claimant only (1) if the liability of the person against whom contribution is sought has been extinguished and (2) to the extent that the amount paid in settlement was reasonable.
Sections 4, 5 and 6 are expected however, apply whether the plaintiff to replace the Uniform Contribution was contributorily at fault or not. Among Tortfeasors Act (1955) in a state following the principle of Section 4 is in general accord with comparative fault. The three the provisions of the 1955 Uniform sections, Act, but the test for determining the COMPARATIVE FAULT ACT
measure of contribution and thus the recoverable damages. This is not establishing the ultimate changed by the Act. Between the responsibility is no longer on a defendants themselves, however, the pro rata basis. Instead, it is on apportionment is in accordance with a basis of proportionate fault the equitable shares of the determined in accordance with the obligation, as established under provisions of Section 2. A Section 2. plaintiff who is contributorily at fault also shares in the If the defendants cause separate proportionate responsibility. harms or if the harm is found to be divisible on a reasonable basis, Joint-and-several liability however, the liability may become under the common law means that several for a particular harm, and each defendant contributing to the contribution is not appropriate. See same harm is liable to him for the Restatement (Second) of Torts § whole amount of 433A (1965).
Law Review Commentaries
Apportionment of losses under comparative fault laws. Richard N. Pearson. 40 La.L.Rev. 343 (1980).
Contribution 5. C.J.S. Contribution § 11.
Section 5. [Enforcement of Contribution]
(a) If the proportionate fault of the parties to a claim for contribution has been established previously by the court, as provided by Section 2, a party paying more than his equitable share of the obligation, upon motion, may recover judgment for contribution.
(b) If the proportionate fault of the parties to the claim for contribution has not been established by the court, contribution may be enforced in a separate action, whether or not a judgment has been rendered against either the person seeking contribution or the person from whom contribution is being sought.
(c) If a judgment has been rendered, the action for contribution must be commenced within [one year] after the judgment becomes final. If no judgment has been rendered, the person bringing the action for contribution either must have (1) discharged by payment the common liability within the period of the statute of limitations applicable to the claimant's right of action against him and commenced the action for contribution within [one year] after payment, or (2) agreed while action was pending to discharge the common liability and, within [one year] after the agreement, have paid the liability and commenced an action for contribution.
Illustration No. 9. Judgment for A for $12,000 is paid (Equitable shares previously by B. established by court). B then brings a separate action A sues B and C. His damages are seeking contribution from C, who was $20,000. not a party to the original action.
A is found 40% at fault. C is found to be liable for the B is found 30% at fault. same injury, and as between B and C, C is found 30% at fault. C is found to be 50% at fault.
A, with a joint-and-several Judgment for contribution for judgment for $6,000 against B and $6,000 is awarded to B. C, collects the whole amount from B. If A had voluntarily joined or been brought in as a party to this second On proper motion to the court, B action, proportionate fault would is entitled to contribution from C have been determined for all parties, in the amount of $3,000. including A and B, and contribution against C would have been awarded Illustration No. 10. on that basis. (Equitable shares not established).
A sues B. His damages are $20,000.
A is found 40% at fault. B is found 60% at fault.COMPARATIVE FAULT ACT Library References
Contribution 5. C.J.S. Contribution § 11.
Section 6. [Effect of Release]
A release, covenant not to sue, or similar agreement entered into by a claimant and a person liable discharges that person from all liability for contribution, but it does not discharge any other persons liable upon the same claim unless it so provides. However, the claim of the releasing person against other persons is reduced by the amount of the released person's equitable share of the obligation, determined in accordance with the provisions of Section 2.
Commissioners' Comment 2
Effect of release on as well. Since the claim is reduced liability of other by the amount of the released person's tortfeasors. The provision equitable share, the increased amount that release of one tortfeasor does of that share as a result of the not release the others unless the reallocation is charged against the release so provides is taken from releasing person. the Uniform Contribution Among Tortfeasors Act (1955). It is a Illustration No. 11. (Effect of common statutory provision. release).
Effect of release on A was injured through the concurrent right of contribution. negligence of B, C and D. His The question of the contribution damages are $20,000. A settles with B rights of tortfeasors A and for $2,000. B against tortfeasor C, who settled and obtained a release or The trial produces the following covenant not to sue admits of three results: answers: (1) A and B are still able to obtain contribution against A, 40% at fault (equitable share, C, despite the release, (2) A and B $8,000) are not entitled to contribution B, 30% at fault (equitable share, unless the release was given not $6,000) in good faith but by way of C, 20% at fault (equitable share, collusion, and (3) the plaintiff's $4,000) total claim is reduced by the D, 10% at fault (equitable share, proportionate share of C. Each $2,000) of the three solutions has substantial disadvantages, A's claim is reduced by B's yet each has been adopted in one equitable share ($6,000). He is of the uniform acts. The first awarded a judgment against C and D, solution was adopted by the 1939 making them jointly and severally Uniform Contribution Act. Its liable for $6,000. disadvantage is that it discourages settlements; a Their equitable shares of the tortfeasor has no incentive to obligation are $4,000 and $2,000 settle if he remains liable for respectively. contribution. The second solution was adopted by the 1955 Illustration No. 12. Release to Contribution Act. While it one tortfeasor; another's share is theoretically encourages uncollectible). settlements, it may be unfair to the other defendants and if the Same facts as in Illustration No. good-faith requirement is 11. conscientiously enforced settlements may be discouraged. It is now found that D's share of $2,000 is uncollectible. Upon proper The third solution is adopted motion to the court that share is in this Section. Although it may reallocated as follows: have some tendency to discourage a claimant from entering into a A's equitable share is increased by settlement, this solution is 4/9 (his own proportionate fault), fairly based on the plus 3/9 (B's proportionate fault), proportionate-fault principle. or $1,556.
"Discharges . . . from all C's equitable share is increased by liability for contribution." A 2/9, or $444. reallocated share of contribution, as provided in Section 2(d), Immunities. The problem of a comes within the meaning of this wrongdoer who is entitled to a legal phrase, and the discharge of the immunity could be treated like a released person under this Section released tortfeasor in this Section applies to that liability — join him to the action to determine his equitable share of the obligation and subtract it from the amount of the claimant's recovery. But this would COMPARATIVE FAULT ACT
unfairly cast the whole loss on the or instructing the employee in its claimant. This might be adjusted by use. This casting of the whole loss on spreading the immune party's the tort defendant may be unfair and obligation among all of the parties greatly in need of legislative at fault, including the claimant, adjustment. It is so affected by the as in Subsection 2(d). But this policies underlying the worker's some result is also accomplished by compensation systems, however, and leaving the immune party out of the these policies vary so substantially action altogether; a far easier and in the several states that it was felt simpler solution. This Act inappropriate to include a section on therefore makes no provision for the problem in a uniform act. immunities. It must be borne in mind, however, that some states Several solutions are possible. treat some immunities as not Thus, contribution against the applying to a suit for employer may be provided for. Or the contribution. This raises different recovery by the employee may be problems, which can be handed under reduced by the proportionate share of third-party practice. the employer. Or the amount of that proportionate share may be divided Worker's compensation. An evenly between the employer and injured employee who has received employee, so that the compensation or is entitled to worker's system bears responsibility for it. compensation benefits from his Provision also needs to be made for employer may ordinarily bring a the relation of the tort defendant to tort action against a third party, the compensation benefits. In any such as the manufacturer of the event, contributory negligence on the machine that injured him, and part of the employee will come within recover for his injury in full. the scope of this Act and will affect Under the rule in most states, the amount of recovery. the defendant is not entitled to contribution from the employer, even though the employer was negligent in maintaining the machine
Because I believe pure comparative fault is more equitable and just than the ancient and harsh, all or nothing, rule of contributory negligence, and the mathematical gymnastics employed in last clear chance and humanitarian cases, I concur.
Historically, contributory negligence, last clear chance, and humanitarian negligence, were born by judicial decisions. By judicial decision we bury them.
Just five years ago, this Court in Epple v. Western Auto Supply Co., 557 S.W.2d 253 (Mo. banc 1977), maintained its view that the general principles of negligence law which historically have existed and well served the people in this state should not be abrogated by judicial edict as mandated today in the principal opinion. The Court in Epple concluded
. . . not to adopt any form of comparative negligence at this time. The subject is complex and takes a variety of forms in the several states where it is in use. . . . that conversion to such a new system involves many policy decisions may be the reason why most states which have adopted the doctrine in some form, have done so by legislative action. In this connection . . . during the past four years the General Assembly has considered on at least six occasions proposed acts which included some form of comparative negligence. . . .
Id. at 254.
Two years later, this Court in Steinman v. Strobel, 589 S.W.2d 293 (Mo. banc 1979), considered again whether comparative negligence should be judicially adopted in Missouri, and again rejected such judicial action by per curiam reaffirmance of the view expressed in Epple v. Western Auto Supply Co., supra. Further rationale for the Court's deference to the legislature was provided by Welliver, J., concurring:
To adopt comparative negligence without undertaking a systematic treatment of this multitude of related issues would be to place the bar on a violent and stormy sea of uncertainty and frustration that would make the post-Whitehead and Kales era seem a serene and placid mountain lake in comparison. Any single opinion that would attempt to deal with all of these issues could only result in a giant legislative enactment by judicial fiat. My inability to find agreement among scholars, judges, lawyers, or my brothers of this court as to the exact form of "comparative negligence" best suited to our social and economic needs also makes me reluctant to do other than concur in the per curiam.
In the interim, the General Assembly has considered at least six more proposals for some form of comparative negligence. Thus, the legislature has considered the question of comparative negligence in recent years on 12 occasions (six times in the four years prior to 1977 and six times during 1979 to 1982) and on 12 occasions has rejected the scheme. The legislature, whose prime responsibility is to set the public policy for Missouri, has found no reason to change the public policy of Missouri and revamp the entire law with respect to the trial of negligence cases. Thus, under the time honored canons of construction, the legislative intent seems clearly against adopting for Missouri that which the majority would thrust upon us. Further, as in the Epple case, supra, none of the parties to this proceeding has urged us in pleading, brief or argument to abandon the present law for a standard of comparative fault. The proposition was not advanced at trial, in the appeal to the Eastern District or in the briefs submitted here after transfer was ordered. Instead, the majority gratuitously raises the point and reaches a conclusion that will rend asunder the established tort law of our state. This decision will scrap the principles of primary and contributory negligence and last clear chance used to determine tort liability in Missouri for more than 100 years, see e.g. Huelsenkamp v. Citizens' Ry. Co., 37 Mo. 538 (1866), along with the established forms and pleadings, patterns of proof and approved jury instructions. Little imagination is required to envision the volume of litigation and endless appeals required to return a semblance of stability to our tort law. Such matters present complex policy dilemmas requiring a systematic approach best suited for resolution by the legislative branch of government. In this connection, it should be noted the legislature remains free to change the substantive law of our state which can include the prompt reinstatement of traditional tort principles.
I have two reasons for dissenting.
First, I believe the imposition of comparative negligence is purely a matter for legislative action. The majority opinion states that thirty-two of the forty states which utilize some form of comparative negligence or fault have done so by legislative enactment — clear recognition that this subject if for the General Assembly. I believe we have intruded into an area which belongs to the legislature. We have pierced and circumvented the revetment so carefully designed to separate, segregate, preserve and distinguish the identities and functions of judicial, legislative and executive branches. It is not that the law is immutable or galvanized, but I believe imposition of comparative negligence or fault is not a matter for judicial fiat.
My second basis for dissent is that I believe that the plaintiff made a submissible case for jury consideration under the facts as reported in Gustafson v. Benda, 661 S.W.2d 29 (Mo.App. 1982), appended to the majority opinion.
The circumstances of this case support the fact that it falls within the last clear chance doctrine rather than the humanitarian doctrine, and there is a distinction to be made between the zones of peril in each. I believe it important to maintain the integrity of both doctrines and the differences between their zones of peril.
In last clear chance, when the plaintiff is in the zone of peril, there is nothing he can do to extricate himself. In this particular case, plaintiff was in the last clear chance posture, for when defendant decided and started to make her turn, plaintiff was in a position of peril from which there was no escape by anything he might accomplish. Defendant's negligence was in making her turn. It seems to me that plaintiff was in the last clear chance zone of peril situation as the turn was made.
I believe that McClanahan v. St. Louis Public Service Co., 363 Mo. 500, 251 S.W.2d 704 (banc 1952), referred to in the majority and Eastern District opinions, failed to recognize and maintain the distinction between the two doctrines — last clear chance and humanitarian — and to the extent that it fails to do so, that case should no longer be followed.