Alvis v. Ribar

• Decision Date: 17 April 1981
• Docket Number: Nos. 52875,53788,s. 52875
• Citation: 85 Ill.2d 1,421 N.E.2d 886,52 Ill.Dec. 23
• Parties: , 52 Ill.Dec. 23 James ALVIS, Appellant, v. James RIBAR et al., Appellees. Karin KROHN, Adm'r, Appellant, v. ABBOTT LABORATORIES, INC., et al., Appellees.
• Court: Illinois Supreme Court

Page 886

421 N.E.2d 886

85 Ill.2d 1, 52 Ill.Dec. 23

James ALVIS, Appellant, v.James RIBAR et al., Appellees.

Karin KROHN, Adm'r, Appellant, v.ABBOTT LABORATORIES, INC., et al., Appellees.

Nos. 52875, 53788.

Supreme Court of Illinois.

April 17, 1981.

As Modified on Denial of Rehearing June 4, 1981.

[52 Ill.Dec. 24] John B. Cashion, Chicago, for appellant James Alvis.

David A. Decker, of May, Decker & Associates, Ltd., Waukegan, for appellantKarin Krohn, etc.

Jacobs, Williams & Montgomery, Ltd., Chicago (Barry L. Kroll, Donald E. Stellato, and David A. Novoselsky, Chicago, of counsel), for appelleeSteven Katz.

Clausen, Miller, Gorman, Carrfey & Witous, P. C., Chicago (James T. Ferrini, William J. Oberts, and David P. Cutler, Chicago, of counsel), for appelleeMilburn Brothers, Inc.

James J. DeSanto, of Rawles, Katz, DeSanto & McKeown, Ltd., Waukegan, for appelleesAbbott Laboratories, Inc. and Robert A. Sweetwood.

Baker & McKenzie, Chicago (Francis D. Morrissey and Edward J. Zulkey, Chicago, of counsel), for amicus curiae Illinois Defense Counsel.

MORAN, Justice:

These two cases, consolidated for appeal, present a question which arises solely from the pleadings.In each, plaintiff's complaint included a count based on the doctrine of comparative negligence, which count was dismissed by the trial court on motion by the defendants.In Alvis v. Ribar, the appellate court affirmed summarily, stating, " * * * it is not for this court to attempt to reverse the many cases and opinions of the Illinois Supreme Court in this area."(78 Ill.App.3d 1117, 1119, 34 Ill.Dec. 449, 398 N.E.2d 124.)This court allowed leave to appeal.In Krohn v. Abbott Laboratories, Inc., we granted a motion for direct appeal under Rule 302(b)(73 Ill.2d R. 302(b)).

Plaintiffs ask this court to abolish the doctrine of contributory negligence and to adopt in its place the doctrine of comparative negligence as the law in Illinois.

In Alvis v. Ribar, a motor vehicle operated by defendant Ribar skidded out of control and collided with a metal barrel which anchored an official intersection stop sign.The sign had been temporarily placed at the intersection while construction work on the intersecting road was being done by the defendant contractor, Milburn Brothers, Inc., under the supervision of defendantCook County.Plaintiff Alvis, who was a passenger in defendant Ribar's vehicle, sustained injuries as a result of the collision.He filed a multicount personal injury complaint seeking damages from all three defendants.

In Krohn v. Abbott Laboratories, Inc., a tractor trailer operated by defendant Sweetwood and owned by defendantAbbott Laboratories, Inc., was traveling west when it collided with an eastbound vehicle operated by decedent, Klaus D. Krohn.The collision occurred in the eastbound lane.As a result of the collision, Klaus D. Krohn sustained fatal injuries.Plaintiff, Karin D. Krohn, as administrator of the estate of Klaus D. Krohn, brought a wrongful death action in the circuit court of Lake County against both defendants.

ITHE HISTORY OF CONTRIBUTORY NEGLIGENCE

Generally, under the doctrine of contributory negligence, a plaintiff is barred from recovering compensation for his injuries if his negligence contributed to the accident.The origin of the doctrine can be traced to the case of Butterfield v. Forrester(1809), 11 East 60, 103 Eng.Rep. 926.There defendant had placed a pole across part of a public road.Plaintiff, riding his horse too fast to see the obstruction, rode into the pole and was injured.The concept of contributory negligence was created by the words of Chief Justice Lord Ellenborough:

"Two things must concur to support this action, an obstruction in the road by the fault of the defendant, and no want of ordinary care to avoid it on the part of the plaintiff."Butterfield v. Forrester(1809), 11 East 60, 61, 103 Eng.Rep. 926, 927.

The doctrine was swiftly adopted in American jurisprudence, commencing with the case of Smith v. Smith(1824), 19 Mass. (2 Pick.) 621, 13 Am.Dec. 464.(SeeH. Woods, The Negligence Case: Comparative Fault 7 (1978);Turk, Comparative Negligence on the March, 28 Chi.-KentL.Rev. 189, 198(1950).)Legal scholars attribute the swift and universal acceptance of the doctrine to newly formed industry's need for protection "against the ravages which might have been wrought by over-sympathetic juries."(Turk, Comparative Negligence on the March, 28 Chi.-KentL.Rev. 189, 201(1950);H. Woods, The Negligence Case: Comparative Fault 8 (1978).Also seeClaymore v. City of Albuquerque(N.M.Ct.App., Dec. 8, 1980), Nos. 4804, 4805, slip op. at 77;Hoffman v. Jones(Fla.1973), 280 So.2d 431, 437.)Judicial concern was particularly evident in the area of personal injury suits brought by railroad employees against the railroads.The courts realized that, in the pervading public view that saw railroads as "harmful entities with deep pockets"(H. Woods, The Negligence Case: Comparative Fault 9 (1978)), juries' sympathies toward plaintiffs could wreak financial disaster upon that burgeoning industry.

Case law developed the doctrine of contributory negligence in Illinois.In Aurora Branch R. R. Co. v. Grimes(1852), 13 Ill. 585, 587-88, this court followed the Butterfield case and added the requirement that the burden of proof is upon the plaintiff to show not only negligence on the part of the defendant, but also that plaintiff himself exercised proper care and circumspection.In the next few years the decisions involving "last clear chance"(Moore v. Moss(1852), 14 Ill. 106, 110(later discussed)), degrees of negligence (Chicago & Mississippi R. R. Co. v. Patchin(1854), 16 Ill. 198, 203), and proximate cause (Joliet & Northern Indiana R. R. Co. v. Jones(1858), 20 Ill. 221, 227) created confusion.Mr. Justice Breese reviewed these decisions in Galena & Chicago Union R. R. Co. v. Jacobs(1858), 20 Ill. 478, a case which involved a 4 1/2-year-old boy who had been run over by a railroad locomotive.There the court ultimately disagreed with the Butterfield holding and adopted a form of comparative negligence in its place.

"This, and all the cases subsequent, to which we have referred, have one common basis, and that is found in the old law maxim that 'no man shall take advantage of his own wrong or negligence' in his prosecution or defense against another."(Galena & Chicago Union R. R. Co. v. Jacobs(1858), 20 Ill. 478, 490-91.)

The court concluded that liability does not depend absolutely on the absence of all negligence on the part of the plaintiff but upon the relative degrees of care or want of care manifested by both parties.

"(A)ll care or negligence is at best but relative, the absence of the highest possible degree of care showing the presence of some negligence, slight as it may be.The true doctrine, therefore, we think is, that in proportion to the negligence of the defendant, should be measured the degree of care required of the plaintiff that is to say, the more gross the negligence manifested by the defendant, the less degree of care will be required of the plaintiff to enable him to recover.Although these cases do not distinctly avow this doctrine in terms, there is a vein of it very perceptible, running through very many of them, as, where there are faults on both sides, the plaintiff shall recover, his fault being to be measured by the defendant's negligence, the plaintiff need not be wholly without fault * * *.

We say, then, that in this, as in all like cases, the degrees of negligence must be measured and considered, and wherever it shall appear that the plaintiff's negligence is comparatively slight, and that of the defendant gross, he shall not be deprived of his action." (Galena & Chicago Union R. R. Co. v. Jacobs(1858), 20 Ill. 478, 497.)

Thus, in 1858, Illinois became a State which followed the doctrine of comparative negligence.

In 1870, in the case of Illinois Central R. R. Co. v. Baches(1870), 55 Ill. 379, 389-90, the court held:

"The seventh of appellee's instructions is not accurate, as it nowhere limits or defines the duty of deceased.Under this instruction, the jury were required to find for the plaintiff, although deceased might have been guilty of negligence equal to that of appellants.Such has never been recognized as the rule of law in this class of cases.* * * (W)e are not inclined to extend the rule, as there is no warrant in the common law for allowing the plaintiff any greater latitude.He should use prudence and care, but failing to do so, and is guilty of negligence, he can not recover, unless the negligence of the defendant clearly and largely exceeds his.This instruction should have been refused, or modified so as to announce the rule of comparative negligence before it was given."

In the case of Illinois Central R. R. Co. v. Hammer(1874), 72 Ill. 347, 351, the court attempted to clarify the definition of comparative negligence."The rule on this subject, it may be, has not at all times been accurately stated by this court.By inadvertence, it has been loosely and indefinitely stated in some of the cases, but what the court has held, and still holds, is, that a plaintiff free from all negligence may recover from a defendant who has failed to use such care as ordinarily prudent men generally employ; or, a plaintiff who is even guilty of slight negligence may recover of a defendant who has been grossly negligent, or whose conduct has been wanton or wilful.Hence the doctrine of comparative negligence."

In 1878, in the case of Indianapolis & St. Louis R. R. Co. v. Evans(1878), 88 Ill. 63, 65, the court adhered to the principles of Baches.

" 'It is the duty of a railroad company to take all reasonable precaution for the protection of life and limb from injuries by their cars; and if such precautions are not taken, a person injured in consequence thereof * * * has a just cause of complaint, and is entitled to recover...