In these two cases, which have been consolidated on appeal, we are asked to re-examine and ameliorate the common law doctrine of contributory negligence.
In each case the plaintiff sought by way of an instruction to utilize the doctrine of comparative negligence to avoid the defense of contributory negligence. The tendered instruction was rejected and the usual contributory negligence instruction was given, with the jury returning a verdict for the defendant in each case.
I
The doctrine of contributory negligence is generally thought to have originated in the English common law in Butterfield v. Forrester, 11 East 60, 103 Eng.Rep. 926 (K.B. 1809), where the plaintiff, a horseman, was barred from recovery for his injuries when his horse ran into a pole. The pole had been left projecting onto the public road by the defendant, an adjoining landowner who was repairing his house.
There can be no doubt that the doctrine of contributory negligence was judicially created. W. Prosser, The Law of Torts (4th ed. 1971), p. 416, et seq.; Annot., 78 A.L.R.3d 339 (1977). The first occasion this Court had to discuss the doctrine of contributory negligence was in Snyder v. Pittsburgh, Cincinnati & St. Louis Ry. Co., 11 W.Va. 14 (1877). There, the Court did not apply the doctrine because it found it insufficiently supported by the facts.
In Morningstar v. Black & Decker Mfg. Co., W.Va., 253 S.E.2d 666 (1979), we analyzed certain constitutional and statutory language, and stated in Syllabus Point 2 this Court's role in the development of common law principles:
There have been several judicial modifications of the severity of contributory negligence. Under the doctrine of last clear chance, the plaintiff's contributory negligence is excused if it can be shown that the defendant had the last opportunity to avoid the accident. Davies v. Mann, 10 M. & W. 546, 152 Eng.Rep. 588 (1842); Barr v. Curry, 137 W.Va. 364, 71 S.E.2d 313 (1952).
The defense of contributory negligence is also not available where the defendant is found to be guilty of wanton and wilful misconduct. Stone v. Rudolph, 127 W.Va. 335, 32 S.E.2d 742 (1944); 57 Am.Jur.2d Negligence § 305 (1971). This result is justified on what is roughly a comparative negligence theory, whereby the intentional tort of the defendant makes trivial the simple negligence of the plaintiff. Perhaps this same explanation may also be the basis for barring contributory negligence where the defendant is subject to strict liability under the doctrine of Rylands v. Fletcher, L.R. 3 H.L. 330 (1868), aff'g L.R. 1 Ex. 265 (1866); 57 Am.Jur.2d Negligence § 310 (1971).
In some instances the doctrine of contributory negligence is not available where the defendant violates a statute clearly designed for the protection of the plaintiff. Pitzer v. M. D. Tomkies & Sons, 136 W.Va. 268, 67 S.E.2d 437 (1951); 57 Am.Jur.2d Negligence § 310 (1971).
Legislatures in a number of states have enacted comparative negligence statutes of one variety or another.
Four states—Alaska,
Most commentators
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. To illustrate, a plaintiff who has sustained a moderate injury with a potential jury verdict of $20,000, and who is 90 percent fault-free, may be reluctant to file suit against a defendant who is 90 percent at fault, but who has received severe injuries and whose case carries a potential of $800,000 in damages from a jury verdict. In this situation, even though the defendant's verdict is reduced by his 90 percent fault to $80,000, it is still far in excess of the plaintiff's potential recovery of $18,000.
While it can be conceded that there is an obvious injustice in the current contributory
The Michigan court in Kirby v. Larson, 400 Mich. 585, 637-41, 256 N.W.2d 400, 425-27 (1977), besides relying heavily on Li v. Yellow Cab Co., supra, quotes at length from United States v. Reliable Transfer Co., 421 U.S. 397, 95 S.Ct. 1708, 44 L.Ed.2d 251 (1975), where the United States Supreme Court abandoned its divided damages rule in admiralty in favor of apportioned damages based on the respective fault of the involved vessels. It may be seriously questioned whether an admiralty rule involving damage to vessels has much relevance to the common law doctrine of contributory negligence.
The history of the common law is one of gradual judicial development and adjustment of the case law to fit the changing conditions of society.
We do not accept the major premise of pure comparative negligence that a party should recover his damages regardless of his fault, so long as his fault is not 100 percent. Without embarking on an extended philosophical discussion of the nature and purpose of our legal system, we do state that in the field of tort law we are not willing to abandon the concept that where a party substantially contributes to his own damages, he should not be permitted to recover for any part of them. We do recognize that the present rule that prohibits recovery to the plaintiff if he is at fault in the slightest degree is manifestly unfair, and in effect rewards the substantially negligent defendant by permitting him to escape any responsibility for his negligence.
Our present judicial rule of contributory negligence is therefore modified to provide that a party is not barred from recovering damages in a tort action so long as his negligence or fault does not equal or exceed the combined negligence or fault of the other parties involved in the accident. To the extent that our prior contributory negligence cases are inconsistent with this rule, they are overruled.
II
Some explanation is warranted as to how this new rule operates. We do not intend to consider exhaustively all the particular ramifications of the new rule, since they are best resolved within the particular factual framework of the individual case.
We do state what may be the obvious, that the sum of the negligence of all the parties to a given accident cannot exceed 100 percent. Furthermore, it will be the jury's obligation to assign the proportion or degree of this total negligence among the various parties, beginning with the plaintiff.
The requirements of proximate cause have not been altered by the new rule. Consequently, before any party is entitled to recover, it must be shown that the negligence of the defendant was the proximate cause of the accident and subsequent injuries. The same is true of contributory fault or negligence. Before it can be counted against a plaintiff, it must be found to be the proximate cause of his injuries.
The jury should be required by general verdict to state the total or gross amount of damages of each party whom they find entitled to a recovery, and by special interrogatory the percentage of fault or contributory
Our comparative negligence rule has no effect on the plaintiff's right to sue only one of several joint tortfeasors. However, as we pointed out in Haynes v. City of Nitro, W.Va., 240 S.E.2d 544 (1977), the joint tortfeasor so sued may implead the other joint tortfeasors as third-party defendants. Haynes established that there is an inchoate right of contribution between joint tortfeasors in advance of judgment except where the act is malum in se. Thus, while the original defendant may have to respond only to the plaintiff for the latter's damages, the defendant in the third-party action can have these damages apportioned among the third-party defendants.
Haynes enables a joint tortfeasor to institute a third-party action before judgment in order to bring in the other joint tortfeasors to have them share in any liability that he may be found to have with regard to the plaintiff. 18 Am.Jur.2d Contribution § 35, et seq.; 18 C.J.S. Contribution § 11.
Neither our comparative negligence rule nor Haynes is designed to alter our basic law which provides for joint and several liability among joint tortfeasors after judgment. Hardin v. New York Central Railroad, 145 W.Va. 676, 116 S.E.2d 697 (1960); Muldoon v. Kepner, 141 W.Va. 577, 91 S.E.2d 727 (1956). Most courts which have considered the question after either a statutory or judicial adoption of some form of comparative negligence have held that the plaintiff can sue one or more joint tortfeasors, and if more than one is sued and a joint judgment is obtained, he may collect the entire amount from any one of the defendants. See, e. g., American Motorcycle Association v. Superior Court, 20 Cal.3d 578, 588-90, 146 Cal.Rptr. 182, 188-90, 578 P.2d 899, 905-906 (1978); Gazaway v. Nicholson, 190 Ga. 345, 348, 9 S.E.2d 154, 156 (1940); Kelly v. Long Island Lighting Co., 31 N.Y.2d 25, 30, 334 N.Y.S.2d 851, 855, 286 N.E.2d 241, 243 (1972); Seattle First National Bank v. Shoreline Concrete, 91 Wn.2d 230, 588 P.2d 1308, 1313-1314 (1978); Chille v. Howell, 34 Wis.2d 491, 498-500, 149 N.W.2d 600, 604-605 (1967); V. Schwartz, Comparative Negligence (1974), § 16.4, at 253. Under W.Va.Code, 55-7-13, joint tortfeasors may still obtain contribution after judgment.
Our comparative negligence rule does not change the right of a joint tortfeasor
Since we have not completely abolished the doctrine of contributory negligence, we recognize that in appropriate circumstances the doctrine of last clear chance is still available. In the case of an intentional tort, contributory negligence is not a defense. Stone v. Rudolph, 127 W.Va. 335, 32 S.E.2d 742 (1944). Therefore, comparative negligence would not come into play, and the plaintiff would recover his damages undiminished by any contributory negligence.
By way of summary, we believe that moderating the harshness of our contributory negligence rule achieves a more satisfactory balance in the allocation of fault as it relates to recovery in our tort system. Our comparative negligence rule still bars the substantially negligent plaintiff
III
Finally, we address the question of the applicability of the rule here announced to cases now pending. In Adkins v. Leverette, W.Va., 239 S.E.2d 496 (1977), we discussed in some detail the doctrine of retroactivity as applied to a constitutional issue in a criminal case. There, we recognized that: "We do not attempt to state a single answer to questions that may arise on the issue of retroactivity." [W.Va., 239 S.E.2d at 499]
Adkins cited Falconer v. Simmons, 51 W.Va. 172, 41 S.E. 193 (1902), which followed the traditional common law view:
However, even Falconer recognized an exception to this rule: Where a prior case has construed a statute and a valid contract has been entered into in reliance upon this construction of the statute, "the later decision does not retroact so as to invalidate such contract." [Syllabus Point 2 in part]
In a unanimous opinion by Justice Cardozo in Great Northern Railway v. Sunburst Oil & Refining Co., 287 U.S. 358, 364, 53 S.Ct. 145, 148, 77 L.Ed. 360, 366 (1932), the United States Supreme Court concluded from a federal constitutional standpoint:
We do not find any provision in the West Virginia Constitution which addresses this point.
After Sunburst, the Court indicated in Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965), that the general principles of retroactive or prospective application of an overruling decision are essentially the same. In Chevron Oil Co. v. Huson, 404 U.S. 97, 106-107, 92 S.Ct. 349,
Moreover, despite Linkletter's assertion that the same principles apply to both civil and criminal cases when decisions are overruled, the Supreme Court has at least shifted its emphasis, and in some cases created outright exceptions. See, e. g., Williams v. United States, 401 U.S. 646, 653, 91 S.Ct. 1148, 1152, 28 L.Ed.2d 388, 395 (1971) (de-emphasizing good faith reliance as a basis for nonretroactivity "[w]here the major purpose of new constitutional doctrine is to overcome an aspect of the criminal trial that substantially impairs its truth-finding function . . . .").
In short, as commentators have noted, while general guidelines can be evolved to determine whether retroactive or prospective application should be given to an overruling decision, it is difficult to etch them with precision so that they will fit all cases.
From a practical standpoint, it is perhaps unnecessary to refine the rules relating to retroactive application in great detail. It is an area of the law not frequently encountered, since the outright reversal of a prior case is a rather uncommon occurrence. While the need for accurate guidelines is important in the substantive areas of the law to provide trial courts and the practitioner with the essential element of predictability, it is of diminished importance with regard to the procedural question of whether an overruling case should be made fully retroactive.
We observe initially that retroactivity considerations in a criminal case presenting constitutional issues involve different policy judgments which may not be present in the ordinary civil case. Certainly an important difference is that full retroactivity in a constitutional criminal case provides an opportunity for collateral attack by habeas corpus upon all criminal judgments, not merely those judgments for which direct appeal is still available. Furthermore, in the criminal area where federal constitutional rights are involved, as we observed in Adkins, it is likely that "the Supreme Court's retroactivity rule is binding on the states." [239 S.E.2d at 499]
In the present case, we are confronted with fashioning a retroactivity rule in regard to a civil case. There are various factors which should be taken into consideration in resolving the question of retroactivity. In any attempt to list factors, it should be stressed that not all factors always carry the same weight, for the weight of any
Retroactivity of an overruling decision is designed to provide equality of application to the overruling decision because its new rule has been consciously designed to correct a flawed area of the law. The more egregious the error, the greater the need to extend the benefits of the overruling decision to others occupying the same status. To some extent, although the policy considerations are different, this initial consideration follows Falconer's result.
Counterbalancing this factor are several considerations. First, the nature of the substantive issue overruled must be determined. If the issue involves a traditionally settled area of law, such as contracts or property as distinguished from torts, and the new rule was not clearly foreshadowed, then retroactivity is less justified. Second, where the overruled decision deals with procedural law rather than substantive, retroactivity ordinarily will be more readily accorded. Third, common law decisions, when overruled, may result in the overruling decision being given retroactive effect, since the substantive issue usually has a narrower impact and is likely to involve fewer parties. Fourth, where, on the other hand, substantial public issues are involved, arising from statutory or constitutional interpretations that represent a clear departure from prior precedent, prospective application will ordinarily be favored. Fifth, the more radically the new decision departs from previous substantive law, the greater the need for limiting retroactivity. Finally, we will also look to the precedent of other courts which have determined the retroactive/prospective question in the same area of the law in their overruling decisions.
In the present case, we have altered our judicially created rule that the slightest degree of contributory negligence bars recovery. We have not, however, completely abolished the defense of contributory negligence. The issue falls within the field of tort law, which historically has not been a settled area of the law such as property or contracts, but has been subject to continual change by the courts and legislatures to meet the evolving needs of an increasingly mobile, industrialized and technological society.
In the four states which have adopted pure comparative negligence, a rule which we consider to be a much more radical departure than our new rule, two states have accorded what amounts to full retroactivity to their decision. Kaatz v. State, 540 P.2d 1037, 1050 (Alaska 1975); Hoffman v. Jones, 280 So.2d 431, 439-40 (Fla.1973). In Kirby v. Larson, 400 Mich. 585, 645, 256 N.W.2d 400, 429 (1977), the Michigan court limited the applicability of its pure comparative negligence rule "to the present case and to those cases filed after the date of this decision." However, in Placek v. City of Sterling Heights, 405 Mich. 638, 275 N.W.2d 511, 521-22 (1979), the court acknowledged that the retroactivity rule of Kirby was too restrictive, and decided to extend complete retroactivity to its pure comparative negligence rule.
We thus find that the cases have generally extended retroactivity to the pure comparative negligence rule. See generally, Annot., 78 A.L.R.3d 421 (1977). Under the foregoing analysis of retroactivity, we hold that the new rule of comparative negligence is fully retroactive.
For the foregoing reasons, the judgment in each case is reversed and the cases are remanded for further proceedings not inconsistent with this opinion.
Reversed and remanded.
FootNotes
"The concise opinions of Bayley and Lord Ellenborough in Butterfield v. Forrester (1809) afford no indication that either of those judges felt at the time that he was charting new paths for the law."
Justice Roberts, dissenting in Hoffman v. Jones, 280 So.2d 431, 442 (Fla. 1973), makes this assertion:
"Contributory negligence was adopted much earlier as a part of the common law. . . . Bayly v. Merrel, Cro.Jac. 386, 79 Eng.Rep. 331 (1606) . . . ."
Kirby also quotes note 13 of United States v. Reliable Transfer Co., 421 U.S. 397, 95 S.Ct. 1708, 44 L.Ed.2d 251 (1975), where the Supreme Court mentions the statutory comparative negligence rule in the Jones Act, 46 U.S.C. § 688, and in the Death on the High Seas Act, 46 U.S.C. § 766. However, since these statutes give relief only to the injured seamen and are not designed to permit the employer-defendant to countersue, they have no real analogy to the pure comparative negligence rule, whereby the defendant may also be a plaintiff. The same is true under the Federal Employers Liability Act, 45 U.S.C. § 51, et seq.
"`The chief cause of the success of our common-law doctrine of precedents as a form of law is that it combines certainty and power of growth as no other doctrine has been able to do. Certainty is insured within reasonable limits in that the court proceeds by analogy of rules and doctrines in the traditional system and develops a principle for the cause before it according to a known technique. Growth is insured in that the limits of the principle are not fixed authoritatively once for all but are discovered gradually by a process of inclusion and exclusion as cases arise which bring out its practical workings and prove how far it may be made to do justice in its actual operation.'" [253 S.E.2d at 675]
"When the answers are consistent with each other but one or more is inconsistent with the general verdict, the [trial] court may direct the entry of judgment in accordance with the answers, notwithstanding the general verdict or may return the jury for further consideration of its answers and verdict or may order a new trial. When the answers are inconsistent with each other and one or more is likewise inconsistent with the general verdict, the court shall not direct the entry of judgment but may return the jury for further consideration of its answers and verdict or may order a new trial."
See generally 5a J. Moore, Federal Practice (2nd ed. 1977), § 49.04, at 2221.
"Therefore, we hold the rule announced today applicable to the instant case and all appropriate cases in which trial commences after the date of this opinion including those in which a retrial is to occur because of remand on any other issue. Further, we find comparative negligence applicable to any case presently pending on appeal in which application of the doctrine was requested at the trial court and the issue preserved for appeal. Finally, comparative negligence shall be the applicable rule in any case commenced but not submitted to the trier of fact prior to the date of this decision, but in no case shall it apply unless there is an appropriate request by counsel prior to submission to the trier of fact." [275 N.W.2d at 522]
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