VINCENT (Dennis), by Guardian ad litem, Plaintiff and Appellant, VINCENT (Ronald), Plaintiff, V. PABST BREWING COMPANY and others, Defendants and Respondents.
No. 232
Supreme Court of Wisconsin
June 5, 1970
Argued April 28, 1970. (Also reported in 177 N. W. 2d 513.)
By the Court.—Judgment affirmed.
For the respondents there was a brief by Wickham, Borgelt, Skogstad & Powell, attorneys, and Reuben W. Peterson, Jr., and George W. Greene of counsel, all of Milwaukee, and oral argument by Mr. Peterson.
A brief amicus curiae was filed by George P. Kersten of Milwaukee, for the American Trial Lawyers Association.
A brief amicus curiae was filed by Conrad H. Johnson of Madison, for Insurance Trial Counsel of Wisconsin.
HANLEY, J. Two related questions are presented on this appeal:
- (1) Should the doctrine of pure comparative negligence be adopted in Wisconsin; and, if so,
- (2) Should such adoption be accomplished by this court rather than by the legislature?
Under the current law in Wisconsin, the appellant can recover nothing from the respondents because his negligence exceeded that of the respondent Nye. Under pure comparative negligence, however, appellant would recover 40 percent of his damages, for pure comparative negligence never bars recovery. Instead, it merely reduces the recoverable amount of one‘s damages by the percentage of his negligence. In considering the appellant‘s contention that a doctrine of pure comparative negligence should be adopted, the Wisconsin history of both contributory negligence and comparative negligence should be briefly noted.1
In its present form
”Contributory negligence; when bars recovery. Contributory negligence shall not bar recovery in an action by any person or his legal representative to recover damages for negligence resulting in death or in injury to person or property, if such negligence was not as great as the negligence of the person against whom recovery is sought, but any damages allowed shall be diminished in the proportion to the amount of negligence attributable to the person recovering.”
Noting that contributory negligence is a court-adopted doctrine, the appellant contends that such doctrine has only been partially eliminated by
As to the relative merits of pure comparative negligence and the Wisconsin application of comparative negligence, much has been written. In reference to the Wisconsin application of partial comparative negligence, Professor Prosser has stated:
“It is obvious that a slight difference in the proportionate fault may permit a recovery; and there has been much quite justified criticism of a rule under which a plaintiff who is charged with 49 per cent of the total negligence recovers 51 per cent of his damages, while one who is charged with 50 per cent recovers nothing at all. Actually, of course, juries almost never indulge in such refined hair-splitting, and the criticism really goes to the directed verdict. It has been said that the restriction is necessary to prevent the jury from giving the plaintiff something in every case, even where the defendant may not be negligent at all, or is at fault to the extent of only 1% of the total. But this ignores the fact that the court still has control over an unjustified apportionment, and that a 1% recovery will be insignificant, and less than the nuisance value of the suit. Actually the writer has found no such cases. It appears impossible to justify the rule on any basis except one of pure political compromise. It is difficult to be happy about the Wisconsin cases, or to escape the conclusion that at the cost of many appeals they have succeeded merely in denying apportionment in many cases where it should have been made.”4 (Emphasis supplied.)
It has also been stated that since Bielski v. Schulze (1962), 16 Wis. 2d 1, 114 N. W. 2d 105, has established pure comparative negligence in situations wherein multiple defendants are seeking contribution among themselves, there is no justification for not applying pure comparative negligence between plaintiffs and defendants.
Others have favored the Wisconsin position and have said:
“. . . [Pure comparative negligence] would increase claims and litigation. It would put a greater strain on ever increasing insurance rates. It would cause the general public to bear a larger premium for insurance and costs for judicial administration as a result of allowing plaintiffs of greater fault to recover. It would be the first step to a ‘no fault’ system whereby the wrongdoer is allowed to profit from his own wrong. It is contrary to the basic sense of justice created by the majority of citizens and as such embodied in the historic principles of tort law. . . .”6
Although considerable disagreement exists as to whether a doctrine of pure comparative negligence should be adopted in Wisconsin, there has been considerable agreement as to the ability or propriety of this court‘s initiating such adoption. One writer has said that the Wisconsin doctrine of comparative negligence “. . . is a statutory rule and the court is helpless. . . .”7 The writer continues by stating:
“. . . If the legislature had never developed a comparative negligence doctrine, our supreme court might feel free to act. However, the right of the claimant is now controlled by the 1931 statute. The change should
be made, but it will require action by the Wisconsin Legislature.”8
In support of the contention that this court has authority to adopt pure comparative negligence, it has been argued in the amicus curiae brief of the American Trial Lawyers Association that the legislature, in enacting
This court, however, has consistently interpreted the statute itself as having created the bar to recovery. The statute says: “Contributory negligence shall not bar recovery . . . if such [negligence of the party seeking recovery is] not as great as the negligence of the person against whom recovery is sought. . . .” The natural inference is that if one‘s negligence is as great, or greater, than the party against whom recovery is sought recovery is denied. Consistent with the interpretation given
“. . . The full scope of an apportionment rule could only be attained by amending the statute to remove [the] bar [to recovery]. . . .”
“. . . Where a law passed by the legislature has been construed by the courts, legislative acquiescence in or refusal to pass a measure that would defeat the courts’ construction is not an equivocal act. The legislature is presumed to know that in absence of its changing the law, the construction put upon it by the courts will remain unchanged; for the principle of the courts’ decision — legislative intent — is a historical fact and, hence, unchanging. Thus, when the legislature acquiesces or refuses to change the law, it has acknowledged that the courts’ interpretation of legislative intent is correct. This being so, however, the courts are henceforth constrained not to alter their construction; having correctly determined legislative intent, they have fulfilled their function.”
The appellant has argued that he and the people of Wisconsin come to this court for relief from the harsh doctrine of contributory negligence which it has created. This, however, is a somewhat novel approach in that the public is, unlike the instant case, usually represented in a class action. If, in fact, the people of Wisconsin seek redress from this court‘s application of
The respondents contend that, while the court is here presented with only a given fact situation, a broad change as sought by the appellant would of necessity affect all areas of negligence law. Since a judicial change of the present comparative negligence doctrine would create questions in situations involving multiple defendants, multiple plaintiffs and joint tort-feasors, respondents
In regard to this contention it should be noted that the legislature in its most recent session has established an interim committee to study problems such as those cited by the respondents.9
In order to make the current doctrine of comparative negligence function, it was necessary for this court to foster the ultimate fact verdict. In addition, this court has abolished assumption of risk, gross negligence, governmental, charitable, religious and parental immunities. In light of the efforts extended in making the present doctrine function, it would be prudent to allow the legislature to make any changes following a comprehensive study of the problem.
Such a study could consider respondents’ assertions that collateral benefits available to negligent plaintiffs are ample protection for those more negligent than the persons from whom recovery is sought. The collateral benefits to which respondents refer are kept regardless of plaintiff‘s fault and include such things as medical and hospitalization insurance, automobile insurance and social security.
Since poverty can affect defendants as well as plaintiffs, the possibility that given an ultimate fact verdict, which is necessary in implementing any form of comparative negligence, a defendant will always be found partially negligent should be considered. By adopting pure comparative negligence out of a sense of intellectual fairness one might well be eliminating what has been called an arbitrary rule of no recovery, while at the same time creating an arbitrary rule of partial recovery in all cases. If such were the case, pure comparative negligence would render defendants the insurers of any who chose to commence an action.
Without passing judgment upon the merits of pure comparative negligence as opposed to comparative negligence as it is presently applied in this jurisdiction, we think that the legislature is the body best equipped to adopt the change advocated by the appellant. Such was also the decision of the Illinois Supreme Court in Maki v. Frelk (1968), 40 Ill. 2d 193, 239 N. E. 2d 445, when it was asked to adopt for general application the doctrine of comparative negligence.
The appellant has requested that if the judgment of the trial court be affirmed he nonetheless be allowed costs on this appeal pursuant to
By the Court.—Judgment affirmed.
WILKIE, J. (concurring). I believe there is a need for changing the rule under the Wisconsin comparative negligence system which prohibits a plaintiff from recovering a portion of his damages where his negligence is equal to or greater than the defendant‘s who is at least partially responsible for his injuries.
Although, in my opinion, the court has the authority to make these changes in the rule, and the legislature has not pre-empted the entire subject, at this time I would defer to the legislature as the proper body to make a complete study of the subject and to adopt changes it concludes appropriate. Therefore, I concur.
I have been authorized to state that Mr. Justice BEILFUSS joins in this concurrence.
I do not agree, however, that the passage of the comparative negligence act has divested this court of its inherent common-law prerogative of reconsidering matters that stem from judicial decision.
HALLOWS, C. J. (dissenting). The doctrine of pure comparative negligence should be adopted and the unjust doctrine of contributory negligence repudiated; this can and should be done by this court exercising its inherent power.
I see the justice of the cause and read history differently than does the majority opinion.1 The doctrine of contributory negligence came into the common law rather late in the development of the fault principle in torts. Butterfield v. Forrester (1809), 11 East. 60, 103 Eng. Rep. 926. This doctrine was apparently followed without discussion in Chamberlain v. Milwaukee & Mississippi RR. Co. (1858), 7 Wis. 367, 374 (*425, *431), and Dressler v. Davis (1858), 7 Wis. 449, 453 (*527, *531), both cases being primarily concerned with the burden of proof. The Butterfield Case was based upon a prevalent social-justice concept that a man riding a horse had a greater duty to watch out for his own safety than he had for the safety of others. This concept of contributory negligence is no longer viable in England but has persisted in the United States although with little basis in our current idea of social justice for its survival.
In the field of general negligence the European countries under civil law had moved toward comparative negligence at least one hundred years earlier than its
This history is convincing that the unjust doctrine of contributory negligence as a bar to a cause of action does not fulfill the needs of society and ought no longer be harbored and nurtured by the common-law courts at the expense of comparative negligence which mitigates damages as justice requires.
In Wisconsin a partial reaction to the harshness of the rule, as in many other states, took the form of special legislation in the areas of employer-employee relationship and of extra-hazardous occupations. See
It was not until the enactment of ch. 254 (sec. 1816), Laws of 1907, that the concept of “greater negligence” of a fellow employee of the railroad employer was used as a basis to impute liability to an employer. This act (now
In 1913 by ch. 644 of the laws of that year, there was added a comparison of negligence in terms of proportion of negligence in order to mitigate the amount of recovery. From analogy mainly to this statute and to the
There is no doubt this law was a great step forward and alleviated some of the hardship of contributory negligence, but its partial repudiation of contributory negligence was not espoused as the best solution to the tort-liability problem but because it was a political compromise as intimated by Prosser, Comparative Negligence, 51 Mich. L. Rev. (1953), 465, 493, 494 (a leading article on this problem). The draftsman of the law was a negligence lawyer and a former member of the legislature; it was politically feasible to shift from the Wisconsin railroad cases to the automobile cases the idea of some recovery if one was less negligent. However, FELA, then as now,
While the so-called limited comparative negligence doctrine was an advance step and other states have some form of it,3 it is almost forty years old and its limitation is not now in accord with modern concepts of social justice. Justice demands a person be held responsible for his acts and to the full extent which they cause injury even though the negligence of other persons may contribute to the same injury. If A, B, and C all cause an injury to the extent of 20, 30, and 50 percent, respectively, they should all pay that portion of the damages. If A, B, and C were defendants or if A was a plaintiff, that is what would happen under the Wisconsin rule. A, as a plaintiff, contributes by assuming his own negligence and only recovering 80 percent of his damages. However, the Wisconsin law works an injustice because if B is the plaintiff, A is let out entirely because B‘s contributory negligence is greater than A‘s; and C, although 50 percent negligent, must bear A‘s 20 percent or a total of 70 percent. If C is not financially responsible, B collects nothing. There is no rhyme or reason in justice why A, being 20 percent at fault, ought not to pay his just proportionate share or why C should pay it without a right to recover in contribution.
It is sometimes argued the doctrine of pure comparative negligence allows one at fault to recover for his own fault.
The Wisconsin rule is not just a 50–50 deal because the plaintiff‘s negligence must be compared with the negligence of each defendant separately. If there are two defendants, the plaintiff cannot recover if all parties are all equally negligent. Schwenn v. Loraine Hotel Co. (1961), 14 Wis. 2d 601, 111 N. W. 2d 495; Becker v. Milwaukee (1959), 8 Wis. 2d 456, 99 N. W. 2d 804; Walker v. Kroger Grocery & Baking Co. (1934), 214 Wis. 519, 252 N. W. 721; Chille v. Howell (1967), 34 Wis. 2d 491, 149 N. W. 2d 600. If it were a four-car collision, the plaintiff could not recover if he was 25 percent guilty of negligence and all the rest were equally negligent. Where is the justice in denying all recovery to a person 25 percent negligent when the other persons causing it are 75 percent negligent in the aggregate? The plaintiff‘s chance of recovery ought not to depend upon the fortuitous number of persons responsible for the loss.4
This court has recognized the hardship of the part of the doctrine of contributory negligence left untouched by
The doctrine of pure comparative negligence has been recognized as superior to our present rule by many authorities and students of the problem. Prosser, Comparative Negligence, 51 Mich. L. Rev. (1953), 465;
It is claimed the adoption of the doctrine of pure comparative negligence would appreciably increase claims or litigation.5 The argument is not persuasive. If the claims are legitimate and they cannot be settled and litigation results, courts should hear them. What has the number of claims to do with justice? Justice is not secured or maintained by denying a remedy. The amount of crime can be cut down, too, by repealing criminal laws. It is claimed the doctrine would put a greater strain on the ever-increasing insurance rates. This assumes that in a large bulk of cases the plaintiff is more negligent than the defendant and the increase in loss would require increase in rates. This is hardly an argument based upon equity and justice. The merits of this claim have been well answered. Peck, Comparative Negligence and Automobile Liability Insurance, 58 Mich. L. Rev. (1960), 689.
It is likewise claimed the doctrine would be a step toward a no-fault system whereby a wrongdoer is allowed to profit from his own wrong. This is a patently fallacious argument because a wrongdoer cannot recover to the extent of his fault but only to the extent of the fault of others. What I do fear is that if the doctrine of pure comparative negligence is not adopted, the whole fault system in torts will be repudiated and a no-fault system akin to workmen‘s compensation adopted.6
It is illogical and unjust to argue collateral benefits are a form of compensation to a plaintiff denied re-
I see no danger that comparative negligence will allow partial recovery in all cases. This argument evinces a curious lack of confidence in the jury system. A jury now finds defendants without fault and will continue to do so regardless of the reduction of damages. What is so unjust in allowing partial recovery in many cases if the defendant is guilty of negligence? The court has the same control over the jury‘s apportionment, i.e. (1) grant a new trial in the interests of justice; and (2) grant a new trial because of the insufficiency of the evidence to sustain the verdict. To avoid another trial in such cases, I would extend the Powers rule7 to include apportionment. See Firkus v. Rombalski (1964), 25 Wis. 2d 352, 130 N. W. 2d 835, where a new trial was granted only on the question of apportionment. I think juries should be instructed on the effect of their apportionment of negligence and that their verdict is subject to the control of the court. Juries should know what they are doing and not be allowed to determine a verdict on their false assumptions. This is the view this court took in allowing juries to be instructed on the effect of finding an accused not guilty by reason of insanity in criminal cases. See State v. Shoffner (1966), 31 Wis. 2d 412, 428, 143 N. W. 2d 458.
It is also argued it is unfair that both the plaintiff and defendant will recover part of their respective damages under the pure comparative doctrine. I think not. Why in justice should only one person in a lawsuit
The majority of the court states if there is to be any change it should be done by the legislature. This court has never construed
The history of this statute is clear that it was a reaction against the doctrine of contributory negligence but there is nothing in its history or in its language which evinces any intent to pre-empt this field of common law to the exclusion of this court. See Note, Wisconsin Statute Law, Lambert, 7 Wis. L. Rev. (1932), 122; Campbell, Wisconsin’s Comparative Negligence Law, 7 Wis. L. Rev. (1932), 222. I think the argument against pre-emption can be based upon an analogy to our action in Holytz v. Milwaukee (1962), 17 Wis. 2d 26, 115
The concurring opinion in Lawver v. Park Falls, supra, is cited in support of pre-emption. My primary argument in that concurring opinion was the injustice of the present rule, not the observation that the change could only be attained by amending the statute. Since that opinion I have continually considered the problem and the methods by which the desirable result could be reached and I have come to the conclusion that this court has the power to abolish what is left of the doctrine of contributory negligence by
This court has a duty of leadership to advance the jurisprudence of this state and when an injustice is found in a doctrine of the common law, the court should not have reluctance to correct it. In this case we are asked to do so and we should respond.