Opinion

Fuller v. Buhrow

  • 292 N.W.2d 672
  • 1980 Iowa Sup. LEXIS 862
Court
Supreme Court of Iowa
Filed
May 21, 1980
Status
Published
Author
McCORMICK
On the bench
Allbee, Division I, Division II, Harris, Larson, LeGRAND, McCORMICK, McGIVERIN, Rees, Reynold-Son, Reynoldson
Cited by
27 cases
Authority
More cited than 9.9%

“This contention by defendant [spouse has no separate and distinct damage by virtue of his or her loss of consortium] is contradicted by decisions of this court that have recognized that consortium is a separate property right of each spouse to the marital relationship.”

How later courts described this case

  • “This contention by defendant [spouse has no separate and distinct damage by virtue of his or her loss of consortium] is contradicted by decisions of this court that have recognized that consortium is a separate property right of each spouse to the marital relationship.”
  • “The distinct nature of each spouse’s right to consortium is perhaps most clearly evidenced by the fact that either spouse may sue for loss of consortium by means of an alienation of affections action even though the other spouse was a joint tortfeasor.”

Written by the judges who cited it.

The opinion

*678 McCORMICK, Justice

(dissenting in part).

I concur in division II but dissent from division I.

The doctrine of contributory negligence was established by the court in fulfilling its institutional responsibility to declare the common law. This institutional responsibility includes the duty to abandon precedent when it is discredited by experience. Common-law principles are neither immutable nor infallible, and the genius of the system is its capacity for growth and adaptation. See Handeland v. Brown, 216 N.W.2d 574, 577 (Iowa 1974). We have previously refused to perpetuate obsolete judge-made doctrine merely for the sake of avoiding a departure from the past. See Kersten Co., Inc. v. Department of Social Services, 207 N.W.2d 117, 121 (Iowa 1973).

Today the court recognizes that the doctrine of comparative negligence is superior to that of contributory negligence. Respected authorities who have analyzed and studied the subject for years have come to a virtually unanimous conclusion that for reasons of fairness and justice the comparative negligence doctrine should be adopted. We have the example and experience of a growing majority of states to guide us in making the change. We have an advisory committee to assist with any necessary rule revisions.

If the legislature wishes to disapprove our common-law decisions and rule changes, it has the right to do so, but the mere .existence of that right should not chill the court’s initiative in making the changes. We ought to put our own house in order. It is neither necessary nor appropriate to defer to the legislature in the first instance.

I would adopt the doctrine of comparative negligence for application in this case and prospectively.

REYNOLDSON, C. J., joins this dissent in part.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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