# Gustafson v. Benda > Supreme Court of Missouri · December 20, 1983 · 661 S.W.2d 11 URL: https://www.frixlaw.com/law-library/cases/9683328 ## Case - **Full name:** Thomas GUSTAFSON, Respondent, v. Donna M. BENDA, Appellant - **Court:** Supreme Court of Missouri - **Decided:** December 20, 1983 - **Citations:** 661 S.W.2d 11 - **Precedential status:** Published - **Opinion:** Dissent by Rendlen - **Judges:** Welliver, Higgins, Donnelly, Seiler, Billings, Rendlen, Gunn, Blackmar - **Cited by:** 217 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9683328 ## Opinion text RENDLEN, Chief Justice, dissenting. 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 arid economic needs also makes me reluctant to do other than concur in the per curiam. 589 S.W.2d at 294 . 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 in *29 structions. 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9683328. Public record. Not legal advice.