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”
How later courts described this case
- 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 law to be responsive to the demands of society”
- explaining contributory negligence as plaintiff’s failure to use ordinary care, resulting in a reduction of damages
- “Today’s decision, of course, can have no effect on those legislative enactments which have incorporated contributory negligence”
Written by the judges who cited it.
Later courts went against this
Superseded by statute, as recognized in Burke v. 12 Rothschild's Liquor Mart, Inc.
85 Ill. 2d 1, 24 (1981), superseded by statute on other grounds as stated in Burke v. 12 Rothschild’s Liquor Mart, Inc., 148 Ill. 2d 429, 440-41
The opinion
MR. JUSTICE RYAN, dissenting:
Following the filing of the original opinion in this case, there was considerable confusion among the members of the bar and the judiciary as to the applicability of its holding. The majority has attempted to clarify this problem by modifying the opinion on denial of rehearing.
After having operated under the contributory negligence doctrine for 100 years, I fail to understand the rush to apply pure comparative negligence. It would seem only fair and equitable to apply this judge-made law prospectively to causes of action arising after the issuance of the mandate in this case, June 8, 1981, as this court did in Skinner v. Reed-Prentice Division Package Machinery Co. (1977), 70 Ill. 2d 1 , Stevens v. Silver Manufacturing Co. (1977), 70 Ill. 2d 41 , Robinson v. International Harvester Co. (1977), 70 Ill. 2d 47 , Renslow v. Mennonite Hospital (1977), 67 Ill. 2d 348 , and Molitor v. Kaneland Community Unit District No. 302 (1959), 18 Ill. 2d 11 .
To attempt to apply the holding of this case other than purely prospectively can only lead to harsh and inequitable results. A seriously injured but contributorially negligent plaintiff whose case was filed in a county with a fairly current calendar may have been denied recovery or, in evaluating his case, may have accepted nominal settlement, relying upon the contributory negligence doctrine. However, an equally seriously injured and' equally contributorially negligent plaintiff who was injured at an earlier date, but whose case was filed in a county with a backlog of personal injury cases, and whose case was not called for trial before June 8, 1981, can now amend his complaint and recover under the pure comparative negligence doctrine. Also, defendants, in evaluating their exposure to liability in accidents which happened before the decision in this case, did so on the basis of the contributory negligence doctrine. Now they are exposed to liability in those same cases to which they had not been previously exposed.
The opinion also states that the holding of this case does not apply to any case in which trial was commenced before June 8, 1981, “except that if any judgment be reversed on appeal for other reasons, this opinion shall be applicable to any retrial.” (85 Ill. 2d at 28.) I do not understand the equity in permitting a person, on retrial, to allege comparative negligence a year or two hence, when a person who went to trial a week or two ago could not rely upon the holding in this case.
The above are only a few of the many potential inequities that will arise by the majority’s application of the holding of this case. After having operated under contributory negligence for so long, it would not appear to severely jeopardize our system of jurisprudence to apply comparative negligence only to injuries received after June 8, 1981. All those who received injuries before that date would then receive equal treatment. Some would not be disadvantaged because their attorneys were not dilatory or the courts wherein their cases were filed operated more efficiently in disposing of personal injury cases. Also, some would not receive favored treatment simply because their cases were fortuitously reversed on appeal and remanded for new trials.
MR. JUSTICE UNDERWOOD joins in this dissent.