# Goetzman v. Wichern > Supreme Court of Iowa · December 22, 1982 · 327 N.W.2d 742 URL: https://www.frixlaw.com/law-library/cases/9858213 ## Case - **Full name:** Mary E. GOETZMAN, Appellant, v. Homer E. WICHERN, M.D., Appellee - **Court:** Supreme Court of Iowa - **Decided:** December 22, 1982 - **Citations:** 327 N.W.2d 742; 1982 Iowa Sup. LEXIS 1638 - **Precedential status:** Published - **Opinion:** Dissent by Carter - **Judges:** McCormick, Carter, Le-Grand, Harris, McGiverin - **Cited by:** 82 later opinions in the Frix Law Library ## Citator (automated) - **Red flag:** Superseded by statute, as recognized in Slager v. HWA Corp.. - Negative treatments: 1 - Distinguished by: 0 - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9858213 ## How later opinions describe it (automated extraction) - applying a new rule when plaintiff had. preserved error and to future trials and to “all pending cases, including appeals, in which the issue has been preserved” - applying a new rule when plaintiff had preserved error and to future trials and to “all pending cases, including appeals, in which the issue has been preserved” ## Opinion text CARTER, Justice (dissenting). I dissent. Today the court discards an established legal doctrine shaped over more than a century of application and ventures forth on a new and unmarked course. I decline to vote in favor of a completely new system of tort law without first being told what that system will entail in its operational stage. The majority opinion only tells us that we are adopting a “pure” form of comparative negligence wherein contributory negligence shall reduce recovery in the proportion that such negligence bears to the total negligence. This brief description leaves unresolved a sufficient number of legal questions that it will now be virtually impossible *755 for district judges in tort litigation to know the law applicable to the cases they are trying. A partial list of these unanswered questions includes the following: 1. What effect is given to the conduct of parties whose negligence contributed to plaintiff’s injuries but who are: (a) not joined in the action; (b) entitled to a special defense such as a statute of limitations; or (c) insolvent? 2. How are traditional concepts of joint and several liability affected? 3. For purposes of liability insurance coverage are the separate damage entitlements of the plaintiff and the defendant set off against each other, or, does each one recover from the other? 4. What effect will the doctrine have upon contribution among tortfeasors? Our trial judges will not find ready answers to these questions in the judicial opinions from other states or in the views of commentators because of the considerable lack of agreement among these sources. The need for at least a minimum of predictability in the law requires that these important collateral issues be given a more comprehensive resolution before the established law is abandoned. This can more properly be achieved by legislative action than through judicial decree. The majority’s answer to the suggestion that the legislature can better deal with the subject of comparative negligence in a comprehensive manner is to point out that most legislatures which have adopted comparative negligence laws have not dealt with the important collateral issues which the system presents. I do not believe that inadequate performance by legislative bodies in other states can justify a similarly imperfect result through judicial action. The point remains that the legislative process does provide a basis to deal with the subject in a much more comprehensive manner thereby eliminating many of the uncertainties which, as a result of this decision, will certainly frustrate our trial process. There is another compelling reason why this matter is better left to the legislature. Contrary to the claims of the majority opinion, the judiciary does not have access to the same quantitative data as the legislature. The combined experience of the nine members of this court in the operational fairness of our current contributory negligence rule represents a tiny and unrepresentative sampling of the problem. Our experience with the operational fairness and efficiency of the alternative systems of comparative negligence is nil. It appears from reading the plurality opinion in Fuller v. Buhrow, 292 N.W.2d 672 (Iowa 1980) and the decision of the majority in the present case that the quantitative data relied on to justify the adoption of this new legal doctrine consists of a few law review articles and those judicial decisions from other states which favor the proposed change. For the most part, those courts and commentators who are the proponents of comparative negligence have shirked from offering empirical data in support of their cause. They have proceeded on the premise that the superiority of comparative negligence over the alleged all-or-nothing aspects of the contributory negligence defense is so self-evident as not to call for further elaboration. Where a rationale has been advanced it has been that in a fault system of liability the extent of fault should govern the extent of liability. It should be observed that all-or-nothing situations with respect to litigation damages in other areas of the law are commonplace. Moreover, with respect to the fault premise of tort litigation, the traditional contributory negligence defense is probably no more incompatible with that philosophy of liability than is the practice of holding concurrently negligent defendants all jointly and severally liable for the entire amount of plaintiff’s damage. The proponents of comparative negligence should not be permitted to sell the doctrine on the basis of its manifest logic. They should be required to produce empirical data which tends to establish the relative fairness of the competing legal doctrines in actual operation rath *756 er than on a theoretical level. 1 A legislative body is equipped to gather such empirical data. Input could be received from knowledgeable lawyers’ organizations, liability insurance carriers and other sources of informed opinion. A court cannot conduct an investigation of this type. A final reason why the conversion to a system of comparative negligence should be by legislative act, if at all, is to avoid the positive injustice produced by retroactive application of the new rule. It is manifestly unjust to require retrial of the present Case because the trial judge did not succumb to a gambling instinct vis-a-vis the likelihood that this court would change the law. Under the provisions of retroactive application adopted in the majority opinion, numerous other cases may have to be retried. Our already overburdened courts should not have to face now unknown quantities of retrials in what may be error-free cases. For the reasons stated, I believe the formulation of an alternative system of tort law, as proposed by appellant, more appropriately rests with the legislature. The appellant’s constitutional claims are without merit. I would therefore affirm the trial court. LeGRAND, HARRIS and McGIVERIN, JJ., join this dissent. . Even on a purely theoretical level, the case for comparative negligence is not as one-sided as its proponents claim. As observed in Bradley v. Appalachian Power Co., 256 S.E.2d 879, 883 (W.Va.1979): The difficulty with the pure comparative negligence rule, however, is that it focuses solely on the hypothetical “plaintiff” without recognizing that once pure comparative negligence is embraced, all parties whose negligence or fault combined to contribute to the accident are automatically potential plaintiffs unless a particular party is found to be 100 percent at fault. The fundamental justification for the pure comparative negligence rule is its fairness in permitting everyone to recover to the extent he is not at fault. Thus, the eye of the needle is “no fault,” and we are asked not to think about the larger aspect — the camel representing “fault.” It is difficult, on theoretical grounds alone, to rationalize a system which permits a party who is 95 percent at fault to have his day in court as a plaintiff because he is 5 percent fault-free. The practical result of such a system is that it favors the party who has incurred the most damages regardless of his amount of fault or negligence. Considerations of this nature might well cause a legislative body to make some alterations in the so-called “pure” form of comparative negligence. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9858213. Public record. Not legal advice.