Lead Opinion
Opinion
this case we address the grave and recurrent question whether we should judicially declare no longer applicable in California courts the doctrine of contributory negligence, which bars all recovery when the plaintiff’s negligent conduct has contributed as a legal cause in any degree to the harm suffered by him, and hold that it must give way to a system of comparative negligence, which assesses liability in direct proportion to fault. As we explain in detail infra, we conclude that we should. In the course of reaching our ultimate decision we conclude that: (1) The doctrine of comparative negligence is preferable to the “all-or-nothing” doctrine of contributory negligence from the point of view of logic, practical experience, and fundamental justice; (2) judicial action in this area is not precluded by the presence of section 1714 of the Civil Code, which has been said to “codify” the “all- or-nothing” rule and to render it immune from attack in the courts except on constitutional grounds; (3) given the possibility of judicial action, certain practical difficulties attendant upon the adoption of comparative negligence should not dissuade us from charting a new course—leaving the resolution of some of these problems to future judicial or legislative action; (4) the doctrine of comparative negligence should be applied in this state in its so-called “pure” form under which the assessment of liability in proportion to fault proceeds in spite of the fact that the plaintiff is equally at fault as or more at fault than the defendant; and finally (5) this new rule should be given a limited retrospective application.
The accident here in question occurred near the intersection of Alvarado Street and Third Street in Los Angeles. At this intersection
The court, sitting without a jury, found as facts that defendant Phillips was traveling at approximately 30 miles per hour when he entered the intersection, that such speed was unsafe at that time and place, and that the traffic light controlling southbound traffic at the intersection was yellow when defendant Phillips drove into the intersection. It also found, however, that plaintiff’s left turn across the southbound lanes of Alvarado “was made at a time when a vehicle was approaching from the opposite direction so close as to constitute an immediate hazard.” The dispositive conclusion of law was as follows: “That the driving of Nga Li was negligent, that such negligence was a proximate cause of the collision, and that she is barred from recovery by reason of such contributory negligence.” Judgment for defendants was entered accordingly.
I
“Contributory negligence is conduct on the part of the plaintiff which falls below the standard to which he should conform for his own protection, and which is a legally contributing cause cooperating with the negligence of the defendant in bringing about the plaintiff’s harm.” (Rest. 2d Torts, § 463.) Thus the American Law Institute, in its second restatement of the law, describes the kind of conduct on the part of one seeking recovery for damage caused by negligence which renders him subject to the doctrine of contributory negligence. What the effect of such conduct will be is left to a further section, which states the doctrine in its clearest essence: “Except where the defendant has the last clear chance, the plaintiff’s contributory negligence bars recovery against a
This rule, rooted in the long-standing principle that one should not recover from another for damages brought upon oneself (see Baltimore & P.R. Co. v. Jones (1877)
It is unnecessary for us to catalogue the enormous amount of critical comment that has been directed over the years against the “all- or-nothing” approach of the doctrine of contributory negligence. The essence of that criticism has been constant and clear: the doctrine is inequitable in its operation because it fails to distribute responsibility in proportion to fault.
Furthermore, practical experience with the application by juries of the doctrine of contributory negligence has added its weight to analyses of its inherent shortcomings: “Every trial lawyer is well aware that juries often do in fact allow recovery in cases of contributory negligence, and that the compromise in the jury room does result in some diminution of the damages because of the plaintiff’s fault. But the process is at best a haphazard and most unsatisfactory one.” (Prosser, Comparative Negligence, supra, p. 4; fn. omitted.) (See also Prosser, Torts, supra, § 67, pp. 436-437; Comments of Malone and Wade in Comments on Maki v.
It is in view of these theoretical and practical considerations that to this date .25 states,
The foregoing conclusion, however, clearly takes us only part of the way. It is strenuously and ably urged by defendants and two of the amici curiae that whatever our views on the relative merits of contributory and comparative negligence, we are precluded from making those views the law of the state by judicial decision. Moreover, it is contended, even if we are not so precluded, there exist considerations of a practical nature "which should dissuade us from embarking upon the course which we have indicated. We proceed to take up these two objections in order.
II
It is urged that any change in the law of contributory negligence must be made by the Legislature, not by this court. Although the doctrine of contributory negligence is of judicial origin—its genesis being traditionally attributed to the opinion of Lord Ellenborough in Butterfield v. Forrester (K.B. 1809) 103 Eng. Rep. 926—the enactment of section 1714 of the Civil Code
We are further urged to observe that a basic distinction exists between the situation obtaining in Florida prior to the decision of that state’s Supreme Court abrogating the doctrine (Hoffman v. Jones, supra,
We have concluded that the foregoing argument, in spite of its superficial appeal, is fundamentally misguided. As we proceed to point out and elaborate below, it was not the intention of the Legislature in enacting section 1714 of the Civil Code, as well as other sections of that code declarative of the common law, to insulate the matters therein expressed from further judicial development; rather it was the intention of the Legislature to announce and formulate existing common law principles and definitions for purposes of orderly and concise presentation and with a distinct view toward continuing judicial evolution.
Before turning our attention to section 1714 itself we make some observations concerning the 1872 Civil Code as a whole. Professor Arvo Van Alstyne, in an excellent and instructive article entitled The California Civil Code which appears as the introductory commentary to West’s Annotated Civil Code (1954), has carefully and authoritatively traced the history and examined the development of this, the first code of substantive law to be adopted in this state. Based upon the ill-fated draft Civil Code prepared under the direction and through the effort of David Dudley Field for adoption in the state of New York, the California code found acceptance for reasons largely related to the temperament and needs of an emerging frontier society. “In the young and growing commonwealth of California, the basically practical views of Field commanded wider acceptance than the more theoretic and philosophic arguments of the jurists of the historic school. In 1872, the advantages of
However, the extreme consciseness and brevity of expression which was characteristic of the 1872 code, although salutary from the point of view of popular access to basic legal concepts, early led to uncertainty and dispute as to whether it should be regarded as the exclusive or primary source of the law of private rights. Due largely to the influence of a series of articles on the subject by Professor John Norton Pomeroy, this problem of interpretation was soon resolved, and by 1920 this court was able to state with confidence: “The Civil Code was not designed to embody the whole law of private and civil relations, rights, and duties; it is incomplete and partial; and except in those instances where its language clearly and unequivocally discloses an intention to depart from, alter, or abrogate the common-law rule concerning a particular subject matter, a section of the code purporting to embody such doctrine or rule will be construed in light of common-law decisions on the same subject.” (Estate of Elizalde (1920)
In addition, the code itself provides explicit guidance as to how such construction shall proceed. “The rule of the common law, that statutes in derogation thereof are to be strictly construed, has no application to this Code. The Code establishes the law of this State respecting the subjects to which it relates, and its provisions are to be liberally construed with a view to effect its objects and to promote justice.” (Civ. Code (1872) § 4.) Also, “[t]he provisions of this Code, so far as they are substantially the same as existing statutes or the common law, must be construed as continuations thereof, and not as new enactments.” (Civ. Code 1872) § 5; italics added.) The effect of these sections was early expressed by us in In re Jessup (1889)
The foregoing view of the character, function, and proper mode of interpretation of the Civil Code has imbued it with admirable flexibility from the standpoint of adaptation to changing circumstances and conditions. As Professor Van Alstyne states the matter: “[The code’s] incompleteness, both in scope and in detail[,] have provided ample room for judicial development of important new systems of rules, frequently built upon Code foundations. In the field of torts, in particular, which the Civil Code touches upon only briefly and sporadically, the courts have been free from Code restraint in evolving the details of such currently vital rules as those pertaining to last clear chance; the right of privacy, res ipsa loquitur, unfair competition, and the ‘impact rule’ in personal injury cases .... [H] In short, the Civil Code has not, as its critics had predicted, restricted the orderly development of the law in its most rapidly changing areas along traditional patterns. That this is true is undoubtedly due in large measure to the generality of Code treatment of its subject matter, stress being placed upon basic principles rather than a large array of narrowly drawn rules. In addition, the acceptance of Professor Pomeroy’s concept of the Civil Code as a continuation of the common law created an atmosphere in which Code interpretation could more easily partake of common law elasticity.” (Van Alstyne, supra, pp. 36-37.)
It is with these general precepts in mind that we turn to a specific consideration of section 1714. That section, which we have already quoted in full (fn. 7, ante), provides in relevant part as follows: “Everyone is responsible, not only for the result of his willful acts, but also (or an injury occasioned to another by his want of ordinary care or skill in the management of his property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself. ” (Italics added.)
The present-day reader of the foregoing language is immediately struck by the fact that it seems to provide in specific terms for a rule of comparative rather than contributory negligence—i.e., for a rule whereby plaintiff’s recovery is to be diminished to the extent that his own actions have been responsible for his injuries. The use of the compound conjunction “except so far as”—rather than some other conjunction setting up a wholly disqualifying condition—clearly seems to indicate an intention on the part of the Legislature to adopt a system other than one wherein contributory fault on the part of the plaintiff would operate to
Our consideration of this arresting contention—and indeed of the whole question of the true meaning and intent of section 1714—cannot proceed without reference to the Code Commissioners’ Note which appeared immediately following section 1714 in the 1872 code.
Each of the parties and amici in this case has applied himself to the task of legal cryptography which the interpretation of this note involves. The variety of answers which has resulted is not surprising. We first address ourselves to the interpretation advanced by plaintiff and the amici curiae in support of her contention set forth above, that section 1714 in fact announced a rule of comparative rather than contributory negligence.
This argument fails to withstand close scrutiny. The civil law statutes cited in the note, like the common law cases cited immediately following them, deal not with “defenses” to negligence but with the basic concept of negligence itself.
In view of all of the foregoing we think that it would indeed be surprising if the 1872 Legislature, intending to accomplish the marked departure from common law which the adoption of comparative negligence would represent, should have chosen to do so in language which differed only slightly from that used in the Field draft to describe the common law rule. (See fn. 12, ante; see also Buckley v. Chadwick, supra,
Turning to the text of the note, we observe that, as indicated above (fn. 11, ante, and accompanying text), the first group of citations, both statutory and decisional, deal with defining the basic concept of negligence and announcing a rule of recovery therefor. Then appears the sentence “This section modifies the law heretofore existing,” followed immediately by the citation of three cases. The first of these, as we have indicated, is Johnson v. The Hudson River Railroad Company, supra,
We think that the foregoing establishes conclusively that the intention of the Legislature in enacting section 1714 of the Civil Code was to state the basic rule of negligence together with the defense of contributory negligence modified, by the emerging doctrine of last clear chance. It remains to determine whether by so doing the Legislature intended to restrict the courts from further development of these concepts according to evolving standards of duty, causation, and liability.
This question must be answered in the negative. As we have explained above, the peculiar nature of the 1872 Civil Code as an avowed continuation of the common law has rendered it particularly flexible and adaptable in its response to changing circumstances and conditions. To reiterate the words of Professor Van Alstyne, “[the code’s] incompleteness, both in scope and detail[,] have provided ample room for judicial
The aforementioned precepts are basically two. The first is that one whose negligence has caused damage to another should be liable therefor. The second is that one whose negligence has contributed to his own injury should not be permitted to cast the burden of liability upon another. The problem facing the Legislature in 1872 was how to accommodate these twin precepts in a manner consonant with the then progress of the common law and yet allow for the incorporation of future developments. The manner chosen sought to insure that the harsh accommodation wrought by the New York rule—i.e., barring recovery to one guilty of any negligence—would not take root in this state. Rather the Legislature wished to encourage a more humane rule—one holding out the hope of recovery to the negligent plaintiff in some circumstances.
Ill
We are thus brought to the second group of arguments which have been advanced by defendants and the amici curiae supporting their position. Generally speaking, such arguments expose considerations of a practical nature which, it is urged, counsel against the adoption of a rule of comparative negligence in this state even if such adoption is possible by judicial means.
The most serious of these considerations are those attendant upon the administration of a rule of comparative negligence in cases involving multiple parties. One such problem may arise when all responsible parties are not brought before the court: it may be difficult for the jury to evaluate relative negligence in such circumstances, and to compound this difficulty such an evaluation would not be res judicata in a subsequent suit against the absent wrongdoer. Problems of contribution and indemnity among joint tortfeasors lurk in the background. (See generally Prosser, Comparative Negligence, supra, 41 Cal.L.Rev. 1, 33-37; Schwartz, Comparative Negligence, supra, §§ 16.1-16.9, pp. 247-274.)
A second and related major area of concern involves the administration of the actual process of fact-finding in a comparative negligence system. The assigning of a specific percentage factor to the amount of negligence attributable to a particular party, while in theory a matter of little difficulty, can become a matter of perplexity in the face of hard facts.
The third area of concern, the status of the doctrines of last clear chance and assumption of risk, involves less the practical problems of administering a particular form of comparative negligence than it does a definition of the theoretical outline of the specific form to be adopted. Although several states which apply comparative negligence concepts retain the last clear chance doctrine (see Schwartz, supra, § 7.2, p. 134), the better reasoned position seems to be that when true comparative negligence is adopted, the need for last clear chance as a palliative of the hardships of the “all-or-nothing” rule disappears and its retention results only in a windfall to the plaintiff in direct contravention of the principle of liability in proportion to fault. (See Schwartz, supra, § 7.2, pp. 137-139; Prosser, Comparative Negligence, supra, 41 Cal.L.Rev., p. 27.) As for assumption of risk, we have recognized in this state that this defense overlaps that of contributory negligence to some extent and in fact is made up of at least two distinct defenses. “To simplify greatly, it has been observed . . . that in one kind of situation, to wit, where a plaintiff unreasonably undertakes to encounter a specific known risk imposed by a defendant’s negligence, plaintiff’s conduct, although he may encounter that risk in a prudent manner, is in reality a form of contributory negligence .... Other kinds of situations within the doctrine of assumption of risk are those, for example, where plaintiff is held to agree to relieve defendant of an obligation of reasonable conduct toward him.
Finally there is the problem of the treatment of willful misconduct under a system of comparative negligence. In jurisdictions following the “all-or-nothing” rule, contributory negligence is no defense to an action based upon a claim of willful misconduct (see Rest. 2d Torts, § 503; Prosser, Torts, supra, § 65, p. 426), and this is the present rule in California. (Williams v. Carr (1968)
The existence of the foregoing areas of difficulty and uncertainty (as well as others which we have not here mentioned—see generally Schwartz, supra, § 21.1, pp. 335-339) has not diminished our conviction that the time for a revision of the means for dealing with contributory fault in this state is long past due and that it lies within the province of this court to initiate the needed change by our decision in this case. Two of the indicated areas (i.e., multiple parties and willful misconduct) are not involved in the case before us, and we consider it neither necessary nor wise to address ourselves to specific problems of this nature which might be expected to arise. As the Florida court stated with respect to the same subject, “it is not the proper function of this Court to decide unripe issues, without the benefit of adequate briefing, not involving an actual controversy, and unrelated to a specific factual situation.” (Hoffman v. Jones, supra,
Our previous comments relating to the remaining two areas of concern (i.e., the status of the doctrines of last clear chance and assumption of risk, and the matter of judicial supervision of the finder of fact) have provided sufficient guidance to enable the trial courts of this state to meet and resolve particular problems in this area as they arise. As we have indicated, last clear chance and assumption of risk (insofar as the latter doctrine is but a variant of contributory negligence) are to be subsumed under the general process of assessing liability in proportion to fault, and the matter of jury supervision we leave for the moment within the broad discretion of the trial courts.
Our decision in this case is to be viewed as a first step in what we deem to be a proper and just direction, not as a compendium containing the answers to all questions that may be expected to arise. Pending future judicial or legislative developments, we are content for the present to assume the position taken by the Florida court in this matter: “We feel the trial judges of this State are capable of applying [a] comparative negligence rule without our setting guidelines in anticipation of expected problems. The problems are more appropriately resolved at the trial
It remains to identify the precise form of comparative negligence which we now adopt for application in this state. Although there are many variants, only the two basic forms need be considered here. The first of these, the so-called “pure” form of comparative negligence, apportions liability in direct proportion to fault in all cases. This was the form adopted by the Supreme Court of Florida in Hoffman v. Jones, supra, and it applies by statute in Mississippi, Rhode Island, and Washington. Moreover it is the form favored by most scholars and commentators. (See, e.g., Prosser, Comparative Negligence, supra, 41 Cal.L.Rev. 1, 21-25; Prosser, Torts, supra, § 67, pp. 437-438; Schwartz, supra, § 21.3, pp. 341-348; Comments on Maki v. Frelk—Comparative v. Contributory Negligence: Should the Court or legislature Decide?, supra, 21 Vand.L.Rev. 889 (Comment by Keeton at p. 906, Comment by Leflar at p. 918).) The second basic form of comparative negligence, of which there are several variants, applies apportionment based on fault up to the point at which the plaintiffs negligence is equal to or greater than that of the defendant—when that point is reached, plaintiff is barred from recovery. Nineteen states have adopted this form or one of its variants by statute. The principal argument advanced in its favor is moral in nature: that it is not morally right to permit one more at fault in an accident to recover from one less at fault. Other arguments assert the probability of increased insurance, administrative, and judicial costs if a “pure” rather than a “50 percent” system is adopted, but this has been seriously questioned. (See authorities cited in Schwartz, supra, § 21.3, pp. 344-346; see also Vincent v. Pabst Brewing Co. (1970)
We have concluded that the “pure” form of comparative negligence is that which'should be adopted in this state. In our view the “50 percent” system simply shifts the lottery aspect of the contributory negligence rule
We also consider significant the experience of the State of Wisconsin, which until recently was considered the leading exponent of the “50 percent” system. There that system led to numerous appeals on the narrow but crucial issue whether plaintiff’s negligence was equal to defendant’s. (See Prosser, Comparative Negligence, supra, 41 Cal.L.Rev. 1, 23-25.) Numerous reversals have resulted on this point, leading to the development of arcane classifications of negligence according to quality and category. (See cases cited in Vincent v. Pabst Brewing Co., supra,
For all of the foregoing reasons we conclude that the “all- or-nothing” rule of contributory negligence as it presently exists in this
It remains for us to determine the extent to which the rule here announced shall have application to cases other than those which are commenced in the future. It is the rule in this state that determinations of this nature turn upon considerations of fairness and public policy. (Westbrook v. Mihaly (1970)
As suggested above, we have concluded that this is a case in which the litigant before the court should be given the benefit of the new rule
In view of the foregoing disposition of this case we have not found it necessary to discuss plaintiff’s additional contention that the rule of contributory negligence is in violation of state and federal constitutional provisions guaranteeing equal protection of the laws.
The judgment is reversed.
Wright, C. J., Tobriner, J., and Burke, J.,
Notes
(See, for example, Sen. Bill No. 43 (1971 Reg. Sess.); Assem. Bill No. 694 (1971 Reg. Sess.); Sen. Bill No. 132 (1972 Reg. Sess.); Assem. Bill No. 102 (1972 Reg. Sess.); Sen. Bill No. 10 (1973 Reg. Sess.); Sen. Bill No. 557 (1973 Reg. Sess.); Assem. Bill No. 50 (1973 Reg. Sess.); Assem. Bill No. 801 (1973 Reg. Sess.); Assem. Bill No. 1666 (1973 Reg. Sess.); Sen. Bill No. 2021 (1974 Reg. Sess.).)
See Tucker v. United Railroads (1916)
Dean Prosser states the kernel of critical comment in these terms: “It [the rule] places upon one party the entire burden of a loss for which two are, by hypothesis, responsible.” (Prosser, Torts (4th ed. 1971) § 67, p. 433.) Harper and James express the same basic idea: “[Tjhere is no justification—in either policy or doctrine—for the rule of contributory negligence, except for the feeling that if one man is to be held liable because of his fault, then the fault of him who seeks to enforce that liability should also be considered. But this notion does not require the all-or-nothing rule, which would exonerate a very negligent defendant for even the slight fault of his victim. The logical corollary of the fault principle would be a rule of comparative or proportional
Dean Prosser, in a 1953 law review article on the subject which still enjoys considerable influence, addressed himself to the commonly advanced justificatory arguments in the following terms: “There has been much speculation as to why the rule thus declared found such ready acceptance in later decisions, both in England and in the United States. The explanations given by the courts themselves never have carried much conviction. Most of the decisions have talked about ‘proximate cause,’ saying that the plaintiff’s negligence is an intervening, insulating cause between the defendant’s negligence and the injury. But this cannot be supported unless a meaning is assigned to proximate cause which is found nowhere else. If two automobiles collide and injure a bystander, the negligence of one driver is not held to be a superseding cause which relieves the other of liability; and there is no visible reason for any different conclusion when the action is by one driver against the other. It has been said that the defense has a penal basis, and is intended to punish the plaintiff for his own misconduct; or that the court will not aid one who is himself at fault, and he must come into court with clean hands. But this is no explanation of the many cases, particularly those of the last clear chance, in which a plaintiff clearly at fault is permitted to recover. It has been said that the rule is intended to discourage accidents, by denying recovery to those who fail to use proper care for their own safety; but the assumption that the speeding motorist is, or should be, meditating on the possible failure of a lawsuit for his possible injuries lacks all reality, and it is quite as reasonable to say that the rule promotes accidents by encouraging the negligent defendant. Probably the true explanation lies merely in the highly individualistic attitude of the common law of the early nineteenth century. The period of development of contributory negligence was that of the industrial revolution, and there is reason to think that the courts found in this defense, along with the concepts of duty and proximate cause, a convenient instrument of control over the jury, by which the liabilities of rapidly growing industry were curbed and kept within bounds.” (Prosser, Comparative Negligence (1953) 41 Cal.L.Rev. 1, 3-4; fns. omitted. For a more extensive consideration of the same subject, see 2 Harper & James, supra, § 22.2, pp. 1199-1207.)
To be distinguished from arguments raised in justification of the “all or nothing” rule are practical considerations which have been said to counsel against the adoption of a fairer and more logical alternative. The latter considerations will be discussed in a subsequent portion of this opinion.
Professor Keeton states the matter as follows in his Vanderbilt Law Review comment: “In relation to contributory negligence, as elsewhere in the law, uncertainty and lack, of evenhandedness are produced by casuistic distinctions. This has happened, for example, in doctrines of last clear chance and in distinctions between what is enough to sustain a finding of primary negligence and what more is required to sustain a finding of contributory negligence. Perhaps even more significant, however, is the casuistry of tolerating blatant jury departure from evenhanded application of the legal rules of negligence and contributory negligence, with the consequence that a kind of rough apportionment of- damages occurs, but in unpoliced, irregular, and unreasonably discriminatory fashion. Moreover, the existence of this practice sharply reduces the true scope of the substantive change effe'cted by openly adopting comparative negligence. [11] Thus, stability, predictability, and evenhandedness are better served by the change to comparative negligence than by adhering in theory to a law that contributory fault bars when this rule has ceased to be the law in practice.” (21 Vand.L.Rev. at p. 916.)
A contrary conclusion is drawn in an article by Lewis F. Powell, Jr., now an Associate Justice of the United States Supreme Court. Because a loose form of comparative negligence is already applied in practice by independent American juries, Justice Powell argues, the “all-or-nothing” rule of contributory negligence ought to be retained as a check on the jury’s tendency to favor the plaintiff. (Powell, Contributory Negligence: A Necessary Check on the American Jury (1957) 43 A.B.A.J. 1005.)
Arkansas, Colorado, Connecticut, Georgia, Hawaii, Idaho, Maine, Massachusetts, Minnesota, Mississippi, Nebraska, Nevada, New Hampshire, New Jersey, North Dakota, Oklahoma, Oregon, Rhode Island, South Dakota, Texas, Utah, Vermont, Washington, Wisconsin, Wyoming. (Schwartz, Comparative Negligence (1974), Appendix A, pp. 367-369.)
In the federal sphere, comparative negligence of the “pure” type (see infra) has been the rule since 1908 in cases arising under the Federal Employers’ Liability Act (see 45 U.S.C. § 53) and since 1920 in cases arising under the Jones Act (see 46 U.S.C. § 688) and the Death on the High Seas Act (see 46 U.S.C. § 766).
In employing the generic term “fault" throughout this opinion we follow a usage common to the literature on the subject of comparative negligence. In all cases, however, we intend the term to import nothing more than “negligence” in the accepted legal sense.
Section 1714 of the Civil Code has never been amended. It provides as follows: “Everyone is responsible, not only for the result of his willful acts, but also for an injury occasioned to another by his want of ordinary care or skill in the management of his property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself The extent of liability in such cases is defined by the Title on Compensatory Relief.” (Italics added.)
It should be observed that the Florida court held alternatively that even if contributory negligence was recognized by the common law prior to the day of American independence, and therefore was made a part of Florida law by the statute, it remained subject to judicial overruling because of its common law origin. (280 So.2d at pp. 435-436.)
This impression is strengthened by a comparison of the language of section 1714 with the section of the Field draft on which it was modeled. Section 853 of the 1865 draft of the New York Civil Code, whose manifest intention was to state the strict rule of contributory negligence, uses the word “unless” in the position wherein its successor section 1714 substitutes “except so far as.” (See fn. 12, infra.) As we shall explain, however, wisdom does not lie in drawing hasty conclusions from this change in language.
ln determining whether a specific code section was intended to depart from or merely restate the common law, weight is to be accorded the notes and comments of the Code Commissioners. (See O'Hara v. Wattson (1916)
Section 1383 of the Code' Napoleon (1804) provided: “Chacun est responsable du dommage qu’il a causé non settlement par son fait, mais encore par sa negligence ou par son imprudence. ” [Every person is responsible for the damage that he has caused not only by his act, but also by his negligence or by his imprudence.]
In 1872, article 2295 of the Louisiana Civil Code (now art. 2316) provided: “Every person is responsible for the damage he occasions not merely by his act, but by his negligence, his imprudence, or his want of skill.”
Section 853 of the 1865 Field draft of the New York Civil Code, along with its Code Commissioners’ Note, provided: “Every one is responsible, not only for the result of his willful acts, but also for an injury occasioned to another by his want of ordinary care or skill in the management of his property or person;1 unless the latter has, willfully, or by want or ordinary care, incurred the risk of such injury.2 The extent of liability in such cases is defined by the Title on COMPENSATORY RELIEF.
“1. Code La., 2295; Code Napoleon, 1383; Austin v. Hudson River R. R. Co.,25 N.Y., 334 ; Jones v. Bird, 5 B. & Ald., 837; Dodd v.Holmes, 1 Ad. & El., 493.
“2. Johnson v. Hudson River R. R. Co.,20 N.Y., 69 .”
The statute here in question (La. Code (1825) art. 2303) was not that cited by the Code Commissioners. (See fn. 11, ante, and accompanying text.)
In 1872 two American jurisdictions, Illinois and Kansas, applied concepts of slight, versus gross negligence—which was not really comparative negligence but another form of “all-or-nothing” rule according to which a slightly negligent plaintiff could recover 100 percent of his damages against a grossly negligent defendant. One jurisdiction, Georgia, had a true comparative negligence statute, but it was limited in application to railroad accidents. (Turk, supra, at pp. 304-318, 326-333.)
The statement in some cases to the effect that section 1714 states a civil law rather than a common law principle (see Rowlands v. Christian (1968)
“Although . . . the bulk of the Code was based upon the New York draft code, it nevertheless cannot be classified as a mere duplication thereof. On the contrary, the original California Civil Code bears the unmistakable imprint of a thoroughgoing critical reconsideration and evaluation of the New York provisions, and their recasting where necessary in the light of California statutory and decision law, with a view to the improvement of the whole structure.” (Van Alstyne, supra, at p. 11.)
It is difficult to understand why the Code Commissioners did not incorporate in their note citations to California cases dealing with the plaintiff’s duty of care and the doctrine of last clear chance. Perhaps it was felt that a citation of the seminal English cases was sufficient to recognize the emerging principles. In any event, it is worthy of note that this court, in the 1869 decision of Needham v. S. F. & S. J. R. Co. (1869)
lt has been argued by one of the amici curiae that the mandatory use of special verdicts in negligence cases would require amendment of section 625 of the Code of Civil Procedure, which reposes the matter of special findings within the sound discretion of the trial court. (See Cembrook v. Sterling Drug Inc. (1964)
BAJI No. 3.52 (1971 re-revision) currently provides: “Contributory negligence of a plaintiff is not á bar to his recovery for an injury caused by the wilful or wanton misconduct of a defendant. [K] Wilful or wanton misconduct is intentional wrongful conduct, done either .with knowledge, express or implied, that serious injury to another will probably result, or with a wanton and reckless disregard of the possible results. An intent to injure is not a necessary element of wilful or wanton misconduct, [f] To prove such misconduct it is not necessary to establish that defendant himself recognized his conduct as dangerous. It is sufficient if it be established that a reasonable man under the same or similar circumstances would be aware of the dangerous character of such conduct.”
“Disallowing the contributory negligence defense in this context is different from last clear chance; the defense is denied not because defendant had the last opportunity to avoid the accident but rather because defendant’s conduct was so culpable it was different in ‘kind’ from the plaintiff’s. The basis is culpability rather thán causation.” (Schwartz, supra, § 5.1, p. 100; fn. omitted.)
“The rule that contributory fault bars completely is a curious departure from the central principle of nineteenth century Anglo-American tort law—that wrongdoers should bear the losses they cause. Comparative negligence more faithfully serves that central principle by causing the wrongdoers to share the burden of resulting losses in reasonable relation to their wrongdoing, rather than allocating the heavier burden to the one who, as luck would have it, happened to be more seriously injured.” (Comments on Maki v. Frelk, supra, 21 Vand.L.Rev. 889, Comment by Keeton, pp. 912-913.)
This problem is compounded when the injurious result is produced by the combined negligence of several parties. For example in a three-car collision a plaintiff whose negligence amounts to one-third or more recovers nothing; in a four-car collision the plaintiff is barred if his negligence is only one-quarter of the total. (See Juenger, Brief for Negligence Law Section of the State Bar of Michigan in Support of Comparative Negligence as Amicus Curiae, Parsonson v. Construction Equipment Company (1972) 18 Wayne L.Rev. 3, 50-51.)
Indeed, as we have indicated in the preceding paragraph, such considerations have led us to permit application of the new rule to actions which have be,en commenced but have not yet been brought to trial.
Nothing we say here today on this point is intended to overrule, in whole or in part, expressly or by implication, the case of Westbrook v. Mihaly, supra,
Retired Associate Justice of the Supreme Court sitting under assignment by the Chairman of the Judicial Council.
Concurrence Opinion
I concur in the judgment and agree with the substance of the majority opinion, I dissent from its cavalier treatment of the recurring problem of the manner of applying a new court-made rule.
Unfortunately the forthrightness of the majority opinion as a whole is sadly diminished by a curious reluctance to face up to reality by recognizing that this court is finally overruling Westbrook and several other cases on the subject of applying a new court-made rule to the parties at hand.
As recently as People v. Hitch (1974)
Up to now the majority never deigned to consider the third alternative, but persisted in their erroneous notion that the only choice was between total retroactivity and absolute prospectivity. This occurred in two other cases last year: see my concurring opinion in In re Stewart (1974)
In retrospect it is clear that Westbrook v. Mihaly, supra, was the point of departure in which the majority first strayed from the accepted doctrine that a prevailing party is to be awarded the fruits of his victory. In my concurring and dissenting opinion in that case (
Also, in Westbrook v. Mihaly (
The majority paint their conclusion herein with such broad-brush and standardless terms as “considerations of fairness and public policy” and “sound principles of decision-making,” without giving any clue why application of a new rule is fair to Nga Li, but somehow was unfair as applied over the past several years to Westbrook and to the several other litigants who helped us develop new rules of law only to be deprived of the benefits thereof. The most inexplicable previous result was Larez v. Shannon (1970)
Nevertheless if is comforting that the majority of the court have finally settled on the third of the three available alternatives in applying a new court-made rule. Despite the majority’s gratuitous disclaimer, the bench and bar will understand that this court is now overruling, insofar as they are inconsistent, the following opinions: Westbrook v. Mihaly, supra,
Dissenting Opinion
I dissent.
For over á century this court has consistently and unanimously held that Civil Code section 1714 codifies the defense of contributory negligence. Suddenly—after 103 years—the court declares section 1714 shall provide for comparative negligence instead. In my view, this action constitutes a gross departure from established judicial rules and role.
First, the majority’s decision deviates from settled rules of statutory construction. A cardinal rule of construction is to effect the intent of the Legislature.
The majority decision also departs significantly from the recognized limitation upon judicial action—encroaching on the powers constitutionally entrusted to the Legislature. The power to enact and amend our statutes is vested exclusively in the Legislature. (Cal. Const., art. III, § 3; art. IV, § 1.) “This court may not usurp the legislative function to change the statutory law which has been uniformly construed by a long line of judicial decisions.” (Estate of Calhoun (1955)
I dispute the need for judicial—instead of legislative—action in this area. The majority is clearly correct in its observation that our society has changed significantly during the 103-year existence of section 1714. But this social change has been neither recent nor traumatic, and the criticisms leveled by the majority at the present operation of contributory negligence are not new. I cannot conclude our society’s evolution has now rendered the normal legislative process inadequate.
Further, the Legislature is the branch best able to effect transition from contributory to comparative or some other doctrine of negligence. Numerous and differing negligence systems have been urged over the years, yet there remains widespread disagreement among both the commentators and the states as to which one is best. (See Schwartz, Comparative Negligence (1974) Appendix A, pp. 367-369 and § 21.3, fn. 40, pp. 341-342, and authorities cited therein.) This court is not an investigatory body, and we lack the means of fairly appraising the merits of these competing systems. Constrained by settled rules of judicial review, we must consider only matters within the record or susceptible to
Contrary to the majority’s assertions of judicial adequacy, the courts of other states—with near unanimity—have conceded their inability to determine the best system for replacing contributory negligence, concluding instead that the legislative branch is best able to resolve the issue.
By abolishing this century old doctrine today, the majority seriously erodes our constitutional function. We are again guilty of judicial chauvinism.
McComb, J., concurred.
On April 24, 1975, the opinion was modified to read as printed above.
Tyrone v. Kelley (1973)
“It remains to identify the precise form of comparative negligence which we now. adopt for application in this state. Although there are many variants, only the two basic forms need be considered here.” (Ante, p. 827.)
See, e.g., Codling v. Paglia (1973)