Hilen v. Hays

VANCE, Justice,

dissenting.

In my view, the majority opinion does not construe or interpret the law, it invades the province of the General Assembly and enacts into law a sweeping revision of an established rule of law which has existed for a hundred years and which has been affirmed and reaffirmed many times during that span of years.

Whether this Commonwealth should adopt a rule of comparative negligence is essentially a matter of public policy, and I believe it beyond argument that the determination of public policy is generally a legislative prerogative.

If there is no declared legislative policy, the courts, of necessity, find it necessary on occasion to proclaim policy to resolve disputes. Such a declaration was made by the court in 1892 when it determined that if a plaintiff has so far contributed to his injury that but for his contributory negligence the injury would not have occurred, he cannot recover. Newport News and M.V.R. Co., v. Dauser, 13 Ky.L.Reptr. 734 (1892).

From 1892 to the present day it has been the law in Kentucky that no recovery can be had by a person who would not have sustained any injury except for the fact of his own negligence. As the majority opinion has pointed out, this court has considered the question of comparative negligence many times since 1892 and has always declined to adopt it. The last such holding was Houchin v. Willow Avenue Realty Co., Ky., 453 S.W.2d 560 (1970).

The General Assembly has been aware of this court’s declared policy all these years. The majority espouses the view that this court, having waited and grown weary of the refusal of the General Assembly to change the law, can now take matters into its own hands. But in taking the matter *722 into its own hands, this court, unlike the court in 1892, is not now confronted with a necessity to establish a policy where none exists, but finds itself in a position of reversing a long-established policy which the General Assembly has found satisfactory for many years.

As the majority opinion noted, a comparative negligence bill was introduced in the General Assembly in 1968, and again in most, if not all, sessions since then. Two such bills were introduced in the 1984 session. None of the bills have ever been enacted into law. The majority characterizes this as a refusal of the General Assembly to act but, in truth, it is not a refusal to act but only a refusal by the General Assembly to change the law as it presently exists.

The failure of the General Assembly to pass the comparative negligence bills which were introduced was, in itself, an action of the General Assembly. The defeat of a bill is no less an action by the General Assembly than the passage of a bill.

Consequently, it cannot be said that the General Assembly has refused to act. It appears instead that the General Assembly, presented with an opportunity on several occasions to adopt comparative negligence, declined tc do so, and thereby expressed its support for the existing rule.

I do not agree, therefore, with the view that because the contributory negligence doctrine was originally adopted by the court rather than the legislature, the court is at liberty to alter the doctrine at will. The acquiescence in the policy by the legislature since 1892 and the defeat of bills designed to alter the policy constitute, at least, legislative approval and perhaps even adoption as legislative policy.

On the merits, the rule which the court today adopts is not immune to criticism, and the rule which is now abandoned is not entirely without merit. The viewpoint that one whose own carelessness and negligence is a substantial causative factor in bringing injury upon himself should be denied recovery is not entirely without merit. There is enough merit in this view that it has been the law in this Commonwealth since 1892 and has been repeatedly affirmed by our highest court.

On the other hand, the rule now adopted is subject to the criticism that it will permit recovery by one guilty of the grossest negligence, and who is almost totally responsible for an accident. It also opens the door to jury awards based upon sympathy rather than established legal principles of liability for which there could be no effective appellate review.

In the majority of the states which have adopted comparative negligence through legislative action, the “modified” version has prevailed over the “pure” form which this court has enacted.

I agree the law should not become a stagnant pool and that over the years circumstances may change to such an extent that a rule of law, once fitting and just, is no longer appropriate under the changed circumstances. However, in matters in which there is some valid argument for each side, and especially when the issue is one of public policy, I feel the courts should exercise restraint in upsetting long-established legal principles.

The majority does not point to any circumstances that have changed since the last opinion of this court on this subject in 1970 (or for that matter since the first opinion in 1892). Perhaps the only change is a change in the membership of the court.

I am not in disagreement with the thesis upon which the majority opinion is premised. It seems just to me that in a system in which liability is based upon fault, the extent of the fault should govern the extent of the liability. Regardless of my personal preference, there is some merit to both viewpoints, and I do not believe the reasons for a change in the rule are so urgent or compelling as to justify what I consider to be an intrusion into the province of the General Assembly.

Justice Leibson, in his concurring opinion, would go further than the majority. Despite his recognition that courts do not as a general rule decide in advance collater *723 al issues which may arise in the future, he would nevertheless establish the Uniform Comparative Fault Act with the commissioners’ comments thereto as an appropriate guideline for determination of future collateral issues where suitable. This would provide scant guidance, however, since the question of the suitability of the proposed uniform act would have to be decided on a case-by-case basis. Nonetheless, it is our open invitation to trial judges to follow the suggested procedures in the act and the commissioners’ comments.

The proposed Uniform Comparative Fault Act has not been adopted in Kentucky. Its denomination as a Uniform Act indicates it is intended for consideration as a legislative enactment. As such it would be subjected to legislative hearings concerning its application to a vast number of situations which may arise under the concept of comparative negligence.

This court has not had the benefit of any such hearings nor have we been briefed upon all the myriad complications which may arise. It is thus particularly inappropriate for this court to go beyond a decision of the matter at hand.

STEPHENSON, J., joins in this dissent.