adopting comparative negligence and explaining that "where contributory negligence has previously been a complete defense, it is supplanted by the doctrine of comparative negligence. In such cases[,] contributory negligence will not bar recovery but shall reduce the total amount of the award in the proportion that the claimant’s contributory negligence bears to the total negligence that caused the damages. The trier of fact must consider both negligence and causation in arriving at the proportion that negligence and causation attributable to the claimant bears to the total negligence that was a substantial factor in causing the damages.”
How later courts described this case
- adopting comparative negligence and explaining that "where contributory negligence has previously been a complete defense, it is supplanted by the doctrine of comparative negligence. In such cases[,] contributory negligence will not bar recovery but shall reduce the total amount of the award in the proportion that the claimant’s contributory negligence bears to the total negligence that caused the damages. The trier of fact must consider both negligence and causation in arriving at the proportion that negligence and causation attributable to the claimant bears to the total negligence that was a substantial factor in causing the damages.”
- explaining that comparative negligence “calls for liability for any particular injury in direct proportion to fault”
- emphasizing that even “the claimant who is 95% negligent recovers from the defendant . . . for that small portion of the injury, 5%, which is fairly attributable to the defendant’s fault”
- following majority of states in adopting the more equitable comparative negligence doctrine in place of rule that contributory negligence is a complete bar to recovery
Written by the judges who cited it.
Distinguished
Distinguished by Commonwealth Transportation Cabinet Department of Highways v. Arrow Truck Lines & Transport Indemnity Co., 1986 Ky. App. LEXIS 1173 (1986)
That Hilen is inapplicable, however, does not mean that the concept of contribution cannot be applied between joint tort-feasors to apportion their financial liability in accordance with their respective degree of negligence.
The opinion
LEIBSON, Justice,
concurring.
I concur with the majority opinion. But, in addition I would provide guidelines for application of the new rule to other situations that will be affected by the change to comparative negligence. As a general rule we do not decide in advance collateral issues which eventually will be forthcoming. Those issues are resolved later on in the context of concrete cases. Nevertheless trial courts should have some point of departure for dealing with the complicated issues that will be precipitated by a change of this magnitude.
As stated by the Supreme Court of Missouri in Gustafson v. Benda, 661 S.W.2d 11 (Mo.1983), the most recent case judicially adopting comparative negligence:
“All that remains is for us to find the simplest and most clear, concise, and di *721 rect method for adopting a comprehensive system of comparative fault for the trial of tort cases and a procedure for accomplishing the transition to comparative fault.” 661 S.W.2d at 15 .
The Missouri court then designated the comparative fault system structured in the Uniform Comparative Fault Act, §§ 1-6, 12 U.L.A., Civ.Proc. & Rem.Law, 35-46 (Cum. Supp.1984), to provide the trial court instructions for the pending case and to provide guidance “insofar as possible” in future cases.
The Missouri approach is well suited to our problems in the present case and the needs of our system. The Uniform Comparative Fault Act was the product of five years of work by a special committee of the National Conference of Commissioners on Uniform State Laws. It was approved by the National Conference in 1977, with one amendment in 1979. The Commissioners’ Prefatory Note states:
“Careful consideration has been given to all potential problems, and specific provisions are made for most of them.”
In his comprehensive treatise on Comparative Fault, Judge Henry Woods states:
“Sections 1-6 of the Uniform Comparative Fault Act on the whole are superior to any existing comparative negligence statute.” Woods, Comparative Fault, (Lawyers Coop. & Baneroft-Whitney, 1978) § 22:12, p. 420.
The Uniform Comparative Fault Act with Commissioners’ Comment provides appropriate guidance where suitable. Those instances where it is not suitable can be decided on a case-by-ease basis.
The Uniform Act has the salutary effect of reducing complicated legal theories regarding types and degrees of fault to relatively simple factual determinations. As stated by Judge Woods, “This is a great step forward.” Woods, Comparative Fault, supra, § 22:12, p. 420. Three states, Washington, Minnesota, and now Missouri, have already gone to the Uniform Act as a model. If there can be an advantage to our being among the last to adopt comparative negligence, it should be the advantage of being able to use the broad experience provided by our predecessors to point the way to the best solutions available.