Bradley v. Appalachian Power Co., Nos. 14310

• Court: Supreme Court of West Virginia
• Writing for the Court: MILLER; Roberts
• Citation: 256 S.E.2d 879,163 W.Va. 332
• Parties: Brenda Sue BRADLEY v. APPALACHIAN POWER COMPANY. Brady NAPIER v. ELK GROCERY COMPANY.
• Docket Number: 14345,Nos. 14310
• Decision Date: 10 July 1979

Page 879

256 S.E.2d 879 163 W.Va. 332 Brenda Sue BRADLEY
v.
APPALACHIAN POWER COMPANY.
Brady NAPIER
v.
ELK GROCERY COMPANY. Nos. 14310, 14345. Supreme Court of Appeals of West Virginia. July 10, 1979.

Page 880

Syllabus by the Court

1. The doctrine of contributory negligence is a judicially created doctrine.

2. "Article VIII, Section 13 of the West Virginia Constitution and W.Va. Code, 2-1-1, were not intended to operate as a bar to this Court's evolution of common law principles, including its historic power to alter or amend the common law." Syllabus Point 2, Morningstar v. Black and Decker Mfg. Co., W.Va., 253 S.E.2d 666 (1979).

3. 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.

4. 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.

5. In determining whether to extend full retroactivity, the following factors are to be considered: First, the nature of the substantive issue overruled must be determined. If the issue [163 W.Va. 333] 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

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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, this Court 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.

E. Joseph Buffa, Jr., DiTrapano, Jackson & Buffa, Charleston, for appellant in No. 14310.

W. T. Shaffer, A. L. Emch, Jackson, Kelly, Holt & O'Farrell, Charleston, for appellee in No. 14310.

Menis E. Ketchum, Greene, Ketchum & Mills, Huntington, for appellant in No. 14345.

Michael J. Farrell, Jenkins, Fenstermaker, Krieger, Kayes & Farrell, Huntington, for appellee in No. 14345.

MILLER, Justice:

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[163 W.Va. 334] 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. ¹

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 and 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:

[163 W.Va. 335] "Article VIII, Section 13 of the West Virginia Constitution and W.Va. Code, 2-1-1, were not intended to operate as a bar to this Court's evolution of common law principles, including its historic power to alter or amend the common law."

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There is an almost universal dissatisfaction among leading scholars of tort law with the harshness of the doctrine of contributory negligence. ² Neither intensive scholarship nor complex legal arguments need be advanced to demonstrate its strictness. A plaintiff can, if the jury is faithful to the contributory negligence instruction it receives, be barred from recovery if his negligence "contributed in the slightest degree" to the accident. Syllabus Point 7, Crum v. Ward, 146 W.Va. 421, 122 S.E.2d 18 (1961); Syllabus Point 3, Morton v. Baber, 118 W.Va. 457, 190 S.E. 767 (1937). Thus, our system of jurisprudence, while based on concepts of justice and fair play, contains an anomaly in which the slightest negligence of a plaintiff precludes any recovery and thereby excuses the defendant from the consequences of all of his negligence, however great it may be.

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. [163 W.Va. 336] Mann, 10 M. & W. 546, 152 Eng.Rep. 588 (1842); Barr v. Curry,137 W.Va. 364, 71 S.E.2d 313 (1952). ³

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. ⁴ The basic framework

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of these statutes is to permit a negligent plaintiff to recover so long as his negligence does not exceed some established percentage, usually 50 percent. ⁵ Such statutes require that his recovery be reduced by the percentage of contributory negligence found to exist.

[163 W.Va. 337] Four states Alaska, ⁶ California, ⁷ Florida, ⁸ and Michigan ⁹ have by judicial decision abolished the doctrine of contributory negligence and substituted in its place a "pure" comparative negligence concept. Under this principle, a plaintiff may recover regardless of the degree of his contributory negligence, but the jury is required to reduce his award in proportion to his contributory negligence.

Most commentators ¹⁰ and the four courts which have adopted the pure comparative negligence position are critical of the 50 percent approach, primarily on the basis that it involves the drawing of an arbitrary line beyond which contributory negligence can still be asserted as a bar to the plaintiff's action. The basis of this criticism is expressed in Li v. Yellow Cab Co., 13 Cal.3d [163 W.Va. 338] 804, 827-28, 119 Cal.Rptr. 858, 874-75, 532 P.2d 1226, 1242-43 (1975):

"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 to a different ground. As Dean Prosser has noted, under such a system '(i)t is obvious that a slight difference in the proportionate fault may permit a recovery; and there has been much justified criticism of a rule under which a plaintiff who is charged with 49 percent of a total negligence recovers 51 percent of his damages, while one who is charged with 50 percent recovers nothing at all.' " (Footnotes omitted)

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...