# Hilen v. Hays

> Kentucky Supreme Court · July 5, 1984 · 673 S.W.2d 713

URL: https://www.frixlaw.com/law-library/cases/9776671

## Case

- **Full name:** Margie Montgomery HILEN, Appellant, v. Keith HAYS, Appellee
- **Court:** Kentucky Supreme Court
- **Decided:** July 5, 1984
- **Citations:** 673 S.W.2d 713; 1984 Ky. LEXIS 261
- **Precedential status:** Published
- **Opinion:** Concurrence by Leibson
- **Judges:** Stephens, Aker, Gant, Leibson, Wintersheimer, Stephenson, Vance
- **Cited by:** 141 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9776671

## How later opinions describe it (automated extraction)

- 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”

## Opinion text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9776671. Public record. Not legal advice.