# Alvis v. Ribar

> Illinois Supreme Court · June 4, 1981 · 85 Ill. 2d 1

URL: https://www.frixlaw.com/law-library/cases/9742232

## Case

- **Full name:** JAMES ALVIS, Appellant, v. JAMES RIBAR Et Al., Appellees; KARIN KROHN, Adm’r, Appellant, v. ABBOTT LABORATORIES, INC., Et Al., Appellees
- **Court:** Illinois Supreme Court
- **Decided:** June 4, 1981
- **Citations:** 85 Ill. 2d 1; 421 N.E.2d 886
- **Precedential status:** Published
- **Opinion:** Dissent by Underwood
- **Judges:** Moran, Ryan, Underwood
- **Cited by:** 324 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Superseded by statute, as recognized in Burke v. 12 Rothschild's Liquor Mart, Inc..
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9742232

## How later opinions describe it (automated extraction)

- stating that when legislature has “failed to act to remedy a gap in the common law that results in injustice, it is the imperative duty of the court to repair that injustice and reform the law to be responsive to the demands of society”
- noting that where a "stalemate” exists between the legislature and the court and "the legislature has, for whatever reason, failed to act to remedy a gap in the common law that results in injustice, it is the imperative duty of the court to repair that injustice and reform the…
- explaining contributory negligence as plaintiff’s failure to use ordinary care, resulting in a reduction of damages

## Opinion text

MR. JUSTICE UNDERWOOD, dissenting:
While I acknowledge the court’s power to radically change a rule of law which has existed in this State for nearly a century, I still believe, as I did when Maki v. Frelk (1968), 40 Ill. 2d 193 , was decided, that the decision to change is best left to the General Assembly.
The action which is taken today by a majority of my colleagues is not unforeseen. (Skinner v. Reed-Prentice Division Package Machinery Co. (1977), 70 Ill. 2d 1, 20 (Underwood, J., dissenting).) That fact does not, however, make its wisdom less questionable. One of the major problems with a judicially decreed change of this magnitude is its effect upon a great many other, related areas of law. What modifications, for example, are now to be made in the doctrines of strict products liability (Daly v. General Motors Corp. (1978), 20 Cal. 3d 725 , 575 P.2d 1162 , 144 Cal. Rptr. 380 ), assumption of the risk, wilful and wanton misconduct, the liability of property owners to licensees, invitees, and trespassers, and many others? While the newly decreed rule of comparative negligence may ultimately affect all of these situations to a now unknown degree, the court can consider only one case at a time. Unless the legislature acts, it will in all probability be years before these questions can be judicially answered. Meanwhile, litigants and the trial courts must attempt to predict the manner in which this court will eventually resolve these now unresolved questions. The fact that the General Assembly could, if it considered a change desirable, adopt one of the comprehensively drafted bills with which it has been presented and resolve these related questions simultaneously is, to me, a persuasive reason for this court to exercise a greater degree of judicial restraint.
There are other reasons to prefer legislative action. If a change is to be made, what should the new rule be? The majority chooses the “pure” form of comparative negligence because it “is the only system which truly apportions damages according to the relative fault of the parties and, thus, achieves total justice.” (85 Ill. 2d at 27.) That is not, however, a universal view. The Supreme Court of Appeals of West Virginia, in adopting a modified form of comparative negligence, had this to say of the pure form:
“While it can be conceded that there is an obvious injustice in the current contributory negligence rule which bars recovery no matter how light the plaintiffs negligence, nevertheless the pure comparative negligence rule seems equally extreme at the other end of the spectrum.
The history of the common law is one of gradual judicial development and adjustment of the case law to fit the changing conditions of society. We see no practical benefit to be gained by the radical break from the common law’s tort-fault methodology that the pure comparative negligence rule requires. There are basic inequities inherent in the pure comparative negligence rule and its resulting singular emphasis on the amount of damages and insurance coverage as the ultimate touchstone of the viability of instituting a suit.
We do not accept the major premise of pure comparative negligence that a party should recover his damages regardless of his fault, so long as his fault is not 100 percent. Without embarking on an extended philosophical discussion of the nature and purpose of our legal system, we do state that in the field of tort law we are not willing to abandon the concept that where a party substantially contributes to his own damages, he should not be permitted to recover for any part of them. We do recognize that the present rule that prohibits recovery to the plaintiff if he is at fault in the slightest degree is manifestly unfair, and in effect rewards the substantially negligent defendant by permitting him to escape any responsibility for his negligence.
* * *
By way of summary, we believe that moderating the harshness of our contributory negligence rule achieves a more satisfactory balance in the allocation of fault as it relates to recovery in our tort system. Our comparative negligence rule still bars the substantially negligent plaintiff from obtaining a recovery, but it does permit the plaintiff who is more than slightly at fault to recover his injuries diminished by his percentage of contributory negligence. The rule is an intermediate position between the absolute bar of the present contributory negligence rule and the almost total permissiveness of the pure comparative negligence rule. It represents a considerable improvement over the present rule without undertaking a radical change in our present fault-based tort system, as would be the case with pure comparative negligence.” Bradley v. Appalacian Power Co. (W. Va. 1979), 256 S.E.2d 879, 883-85, 887 .
While I do not totally disagree with the proposition that modification of our heretofore existing contributory negligence rule is desirable, I am not at all certain that the pure form of comparative negligence is the preferred substitute. If it is, it seems odd that of the 36 States which have adopted some form of comparative negligence approximately two thirds have chosen a modified form. And, while the majority says the pure form “achieves total justice,” the fact that this form permits a grossly negligent but severely injured plaintiff to recover substantial damages from a slightly negligent defendant with only minor injuries certainly represents a radical departure from the concept of individual responsibility which has heretofore underlain our system of tort law. Despite the assertion by the majority that the pure form produces a utopian form of justice, most of the States adopting a comparative neghgence rule have preferred to deny recovery to one whose own neghgence was the principal cause of his injuries.
Whether a change is desirable, and, if so, what that change should be, are major pohcy questions. Their resolution will have a substantial effect upon the people of this State. Recovery will henceforth be possible for conduct of a significantly less reprehensible nature than heretofore. Litigation will surely increase, thus augmenting the burden upon our already overburdened courts, and insurance rates wih likely rise in unknown amounts. Pohcy choices such as those involved here are, it seems to me, best left to the judgment of a General Assembly staffed and equipped to explore, consider, and resolve simultaneously these many-faceted questions.
The majority emphasizes as justification for its action the cliche that courts which created a rule can modify it, and cites cases from some six States which have adopted comparative neghgence. There are a greater number, including Maki, to the contrary (Baab v. Shockling (1980), 61 Ohio St. 2d 55, 56-57 , 399 N.E.2d 87, 88 ; McGraw v. Corrin (Del. 1973), 303 A.2d 641, 644 ; Codling v. Paglia (1973), 32 N.Y.2d 330, 344-45 , 298 N.E.2d 622, 630 , 345 N.Y.S.2d 461, 472 (legislature has since adopted comparative neghgence); Krise v. Gillund (N.D. 1971), 184 N.W.2d 405, 409 (legislature has since adopted comparative neghgence); Bridges v. Union Pacific R.R. Co. (1971), 26 Utah 2d 281, 285 , 488 P.2d 738, 740 (legislature has since adopted comparative neghgence); Peterson v. Culp (1970), 255 Or. 269, 272 , 465 P.2d 876, 877 (legislature has since adopted comparative negligence)). Representative comments by some of the courts which have resisted importunings to legislate on this subject are also significant:
“This court does not deem it necessary at this time to discuss the positive and negative aspects of the doctrine of comparative negligence, as it is our considered opinion that such a change in this area of the law should emanate from the General Assembly. In so deferring to legislative judgment, we find that we are not alone.” Baab v. Shockling (1980), 61 Ohio St. 2d 55, 57 , 399 N.E.2d 87, 88 .
“We should recognize that, although courts, at times, in arriving at decisions have taken into consideration social needs and policy, it is the paramount role of the legislature as a coordinate branch of our government to meet the needs and demands of changing times and legislate accordingly.” Bissen v. Fujii (1970), 51 Haw. 636, 638 , 466 P.2d 429, 431 .
“[W]here the change is of such far-reaching effect as the adoption of a comparative-negligence rule which would take the place of the rule of contributory negligence which has been followed in North Dakota since before statehood, we believe that it would be desirable that such change should be made by the Legislative Assembly, and not by the courts.” Krise v. Gillund (N.D. 1971), 184 N.W.2d 405, 409 .
The fact that our legislature has indicated its approval of the contributory negligence rule is, it seems to me, demonstrated by its incorporation of that rule in numerous statutes. (See, e.g., Ill. Rev. Stat. 1979, ch. 24, pars. 1 — 4—4, 1 — 4—5, 1 — 4—6; ch. 34, par. 301.1; ch. 121, pars. 385, 386.) The majority chooses to characterize this action as conformance to existing law, ignoring the fact that the legislature was under no obligation to conform if it preferred otherwise.
It is to me anomalous for the majority to cite the introduction, consideration, and rejection of six bills in the legislature in less than five years as support for the proposition that there has been legislative “inaction” on the subject. (85 Ill. 2d at 22.) Rather, it seems to me, the introduction of so many bills indicates a considerable amount of activity, and an additional bill, House Bill 0142, providing a system of comparative negligence, is presently pending. The General Assembly has been well aware from our annual reports to it that the large majority of the judges of Illinois were in favor of legislative adoption of some form of comparative negligence. There is no reason to believe, as the majority'suggests, that the absence of legislation doing so should now be viewed as indicating the legislature is awaiting action by this court. Rather, I would have thought the substantial volume of proposed legislation on the subject which had failed to pass indicated the General Assembly’s considered judgment that no change should be made. If that assumption is correct, my colleagues are simply overruling the judgment of the members of our General Assembly on a major question of public policy because they “believe that the concept of comparative negligence which produces a more just and socially desirable distribution of loss is demanded by today’s society” (85 Ill. 2d at 17) and “it is the imperative duty of the court to repair that injustice [contributory negligence], and reform the law to be responsive to the demands of society” (85 Ill. 2d at 23-24). I would respectfully suggest that the 236 members of the General Assembly are far better situated than the members of this court to determine what is “socially desirable” and to gauge the “demands of society.” In a republic in which law-making power is vested, at least theoretically, in our elected representatives, I would have thought a greater degree of judicial self-restraint desirable. (Kelsay v. Motorola (1978), 74 Ill. 2d 172, 190 (Underwood, J., concurring in part and dissenting in part).) The willingness of the judiciary to invade the legislative realm simply encourages additional resort to the courts for resolution of difficult questions of public policy better left to the legislative branch. Beer, On Behalf of Judicial Restraint, 15 Trial 37-39 (Apr. 1979); Deukmejian 8c Thompson, All Sail and No Anchor — Judicial Review Under the California Constitution, 6 Hastings Const. L.Q. 975 -1010 (1979); Fernandez, Custom and the Common Law: Judicial Restraint and Lawmaking by Courts, 11 Sw. U.L. Rev. 1237-93 (1979).
While I do not, of course, suggest that rules of law should be immune to judicial improvement, I would, as we did in Maki, leave the question of change and its nature to the General Assembly in a situation as complex as this. Maki v. Frelk (1968), 40 Ill. 2d 193 .

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9742232. Public record. Not legal advice.