Alvis v. Ribar

MR. JUSTICE RYAN, also dissenting:

I join in the dissent of Mr. Justice Underwood. However, I wish to add a few observations, realizing that some of them may be simply saying in another way that which has already been stated.

Although not necessary to this dissent, I wish to state that I do not completely agree with the majority opinion’s conclusion concerning the development of the doctrine of contributory negligence and comparative negligence in Illinois. Nor do I believe that the cases cited demonstrate that this State was, in the past, a jurisdiction which followed the comparative negligence doctrine. Instead, I view the Illinois cases cited, wherein references are made to “gross” negligence or “slight” negligence and similar statements, as formulating, through common evolutions, the concept that contributory negligence is not a defense to wilful and wanton misconduct.

It is not my intention to herein debate the relative merits of comparative negligence as against contributory negligence. As Mr. Justice Underwood has stated, and as I later state herein, that is a question which the legislature should resolve. It is interesting to note, however, that comparative negligence has not received universal acceptance. There are apparently 14 States that have resisted the pressure to adopt this doctrine, including the legislature of this State in the 12 years since Maki v. Frelk (1968), 40 Ill. 2d 193 . It also appears that comparative negligence has not always been considered to be as desirable as the majority opinion indicates it now is. Recently, in some recreational reading, the following statement was found. It was made by John W. Davis, a former member of Congress, a former solicitor general of the United States, an attorney who argued 140 cases before the United States Supreme Court, and the Democratic candidate for President of the United States in 1924. In discussing the Federal Employers’ Liability Act (cited in the majority opinion as being a statute which adopted comparative negligence), Davis stated: “The Act *** destroys contributory negligence as a defense [and] restores the doctrine of comparative negligence long since repudiated by the courts *** .” (Harbaugh, Lawyer’s Lawyer, The Life of John W. Davis 62-63 (Oxford University Press 1973).) Since comparative negligence has enjoyed such a vacillating acceptance, one can only wonder if this court will again be called upon at some time in the future to change the “judge-made law” we create today.

For the sake of stability, if for no other reason, it would appear preferable to have such a radical change as this made by the legislature. This court in Maki recognized that a substantial body of law has developed incorporating the doctrine of contributory negligence and that the legislature was in a manifestly better position to consider the numerous problems involved in a departure from that doctrine. Now, just 12 years later, with only two members of the Maki court still serving, this court has reversed itself and has held that this court and not the legislature should reject contributory negligence in favor of comparative negligence. Conceivably in a few years, when the present members of this court will no longer be serving and when their replacements may be less enthusiastic about comparative negligence, this court could reject the judge-made law of this case. If we were to adhere to the holding of Maki and accept the action or inaction of the legislature, as the case may be, as the policy of this State, the law would be free from this possible uncertainty and we would either follow the doctrine of contributory negligence or comparative negligence free from judicial tinkering.

I am bothered by the idea that no more than four individuals, four members of this court (five members have joined in the majority in this case), can radically change the fabric of the law that will hereafter govern the conduct of the 11 million residents of this State. I am bothered by the fact that this court has snatched the problem from the hands of the 236 elected representatives of those 11 million people and has decreed that it, not the elected representatives, shall determine whether this State will follow comparative negligence and whether it will be the “pure” or “modified” form. I am particularly disturbed that this court could do this after having held in Maki that any change in this area should be made by the legislature and after the proponents of comparative negligence have, on at least six occasions since Maki, been unable to convince a majority of the elected representatives of the People of the merit of the proposition. I am not only disturbed but offended by the idea that the proponents of comparative negligence, not being able after six tries to convince the representatives of the People, should decide that it would be easier to persuade the majority of this seven-member court, which represents no constituency.

This court must not assume the role of a super general assembly which can be called into session to enact a rule of law whenever the proponents of that rule are unable to secure its passage in the proper forum. This court has not been favored with an omnipotence not possessed by this State’s coequal branches of government. Nor should we, as a court, consider ourselves to be more profound or more perceptive with regard to the needs of the citizens of this State than is the legislature. “The power of the courts is great indeed, but it is not a power to be construed with evangelic illusions of legislative or political primacy. If this is true, then the self-restraint by the courts in lawmaking must be their greatest contribution to the democratic society.” C. Britell, The Lawmakers, 65 Colum. L. Rev. 749 , 777 (1965).

Although it may be true that the doctrine of contributory negligence developed through judicial decisions, as noted in Maki and in the majority opinion here, in the years since the adoption of this doctrine a considerable amount of legislatively created law incorporated and relied on the doctrine of contributory negligence. Thus, with these legislative enactments woven into the fabric of a doctrine created by judicial decisions, I do not agree that this court is at liberty to excise from the fabric that portion thereof which has been judicially created, leaving the remnants of legislatively created law intact. Today’s decision, of course, can have no effect on those legislative enactments which have incorporated contributory negligence, nor will the law announced today have any effect on those statutes where contributory negligence is not a defense. It appears that this State will be operating under the doctrine of contributory negligence in the areas where the legislature has acted, and under the doctrine of pure comparative negligence in common law negligence cases. Besides being confusing and difficult to apply, will not the existence of these two doctrines create equal protection problems similar to those considered in Harvey v. Clyde Park District (1964), 32 Ill. 2d 60 , and Grasse v. Dealer’s Transport Co. (1952), 412 Ill. 179 ? In those cases the equal protection violations were the result of legislative action. Equal protection requirements, however, apply as well to judicially made law. (See 16A Am. Jur. 2d Constitutional Law sec. 798 (1979); 16A C.J.S. Constitutional Law sec. 505 (1956).) It seems to me that the problems created could be resolved if we would have adhered to the holding of Maki, which recognized that the legislature is in a manifestly better position to deal with the many questions involved in such a drastic change than is this court. My opposition to the majority opinion does not stem from my firm belief that judges should not participate in the law-making process. I do not oppose judicial participation in this area in proper cases. This is demonstrated by the fact that I authored the opinion in Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172 , and joined in the opinions in Skinner v. Reed-Prentice Division Package Machinery Co. (1977), 70 Ill. 2d 1 , Stevens v. Silver Manufacturing Co. (1977), 70 Ill. 2d 41 , and Robinson v. International Harvester Co. (1977), 70 Ill. 2d 47 .

Earlier I stated I did not intend to debate the relative merits of comparative negligence as against contributory negligence. I do, however, wish to explore the nature of comparative negligence.

Contributory negligence is, of course, based upon the fault concept of tort law. Comparative negligence, while ostensibly involving the fault concept, is, in reality, a product of that school of tort law which has held that it was unjust for one who is injured not to be compensated for his loss. This is particularly true of “pure,” as compared with “modified,” comparative negligence. Thus the focus of pure comparative negligence is on compensation and the distribution of the loss and retains only a semblance of the fault basis as a means of accomplishing its main purpose. In other words, in my opinion, pure comparative negligence is another fiction in the law which those who refuse to accept the no-fault theory of recovery have promoted to accomplish essentially no-fault recovery.

The history of the popularity of comparative negligence indicates that between 1908 and 1941 various statutory modifications of contributory negligence were passed by Congress and by a few State legislatures. Also during that period a few States enacted general comparative negligence statutes. From 1941 to 1970 there was little activity by either the courts or legislative bodies promoting comparative negligence. During this period the writers on the subject, while supporting the principles of comparative negligence, acknowledged the problems attendant to its implementation. (See W. Prosser, Comparative Negligence, 51 Mich. L. Rev. 465 (1953).) It was not until the early 1970’s that interest was again evidenced in comparative negligence, when 13 States adopted the doctrine by legislation between 1971 and 1973. Coincidentally, at about this same time, academicians had mounted an attack against the negligence theory of recovery and had suggested alternatives to the common law fault standard of tort liability. (See O’Connell, Expanding No Fault Beyond Auto Insurance: Some Proposals, 59 Va. L. Rev. 749 (1973).) It has been suggested that the rush to embrace comparative negligence in the early 1970’s may be seen as an effort to preserve the negligence theory against the prospective competition of no-fault theories. See G.P. White, Tort Law in America 164-68 (1980).

I have heretofore, on at least two occasions, deplored the use of legal fictions to enable injured persons to recover under a negligence theory when in fact the fiction employed permits recovery on a no-fault basis. See Renslow v. Mennonite Hospital (1977), 67 Ill. 2d 348, 379-81 (Ryan, J., dissenting); Spidle v. Steward (1980), 79 Ill. 2d 1, 25 (Ryan,J., dissenting in part).

Statutory remedies permitting recovery without fault traditionally have required a quid pro quo for the right to recover free from defenses available to a defendant under the common law. The quid pro quo in many statutes, such as the Worker’s Compensation Act (Ill. Rev. Stat. 1979, ch. 48, par. 138.1 et seq.), is a limitation on the amount that may be recovered. (See Wright v. Central Du Page Hospital Association (1976), 63 Ill. 2d 313, 327 .) Under pure comparative negligence, as adopted by the majority, the injured plaintiff will have the best of both worlds. He will be able to recover for his injuries without fault and at the same time not be limited in the amount he may recover.

To say that a jury will discount a plaintiff’s recovery by his degree of negligence is not realistic. Just as sympathetic juries operating under limitations of contributory negligence apply a form of comparative negligence, juries operating under pure comparative negligence will, in effect, compensate a plaintiff for his injuries, regardless of the degree of his fault.

Again I urge the legislature, as I did in Renslow and in Spidle, to review the entire negligence tort field and either out and out adopt a no-fault theory or retain the fault concept and adopt a modified no-fault theory for those who are injured as a result of their own negligence or who cannot recover because of some defense available under the common law. To me, there is something basically false about devising fictions to permit recovery under a negligence theory when, in fact, recovery is had under the principle of no fault. I am sure that these fictions will in the future be viewed with the same degree of derision with which we now view the fictions developed in the Middle Ages to circumvent the strictures of the law, both civil and criminal, of that time.

For these reasons I must dissent from the opinion of the court.

Dissenting Opinion Upon Denial of Rehearing