Fuller v. Buhrow, 63386

CourtUnited States State Supreme Court of Iowa
Citation292 N.W.2d 672
Docket NumberNo. 63386,63386
PartiesElrita FULLER and Harold Fuller, Appellants, v. Alfred A. BUHROW, Appellee.
Decision Date21 May 1980

Page 672

292 N.W.2d 672
Elrita FULLER and Harold Fuller, Appellants,
Alfred A. BUHROW, Appellee.
No. 63386.
Supreme Court of Iowa.
May 21, 1980.

Don C. Wilson and James C. Wilson of Wilson, Hall, Wilson & Craig, Eldora, for appellants.

James E. Gritzner and David J. Dutton of Mosier, Thomas, Beatty, Dutton, Braun & Staack, Waterloo, for appellee.

Considered en banc.

ALLBEE, Justice.

By this appeal in advance of final judgment, plaintiffs Elrita and Harold Fuller challenge the validity of the defense of contributory negligence as a bar to both the personal injury claim of Elrita and the loss of consortium claim of Harold.

Plaintiffs' original petition alleged that on January 8, 1977, defendant Alfred A. Buhrow drove his car into Elrita while she was a pedestrian on Walnut Street in Cedar Falls. For the injuries she sustained, Elrita claimed damages for past and future pain, suffering and disability; lost earnings; and hospital, medical and travel expenses. In a separate division, Elrita's husband Harold claimed damages for the past and future loss of consortium of his wife.

Defendant asserted the contributory negligence of Elrita as an affirmative defense to both Elrita's and Harold's claims in an amendment to his answer, which accompanied an application for leave to amend. In a filed resistance to defendant's application to amend and in an alternative motion to strike the contributory negligence defense, plaintiffs raised two basic arguments. First, with regard to both plaintiffs' claims, they contended that the doctrine of contributory negligence should be abrogated and replaced by the doctrine of comparative negligence. Secondly, with regard to only Harold's claim, they asserted that the contributory negligence of the injured spouse

Page 673

constitutes no defense to an action for loss of consortium.

Trial court granted defendant leave to amend his answer and overruled plaintiffs' motion to strike. Plaintiffs then sought and obtained permission from this court to appeal that interlocutory ruling under Iowa R.App.P. 2(a). We affirm trial court's rejection of plaintiffs' call to abrogate contributory negligence generally but reverse its failure to strike the defense as to Harold's claim for loss of consortium.

I. Whether doctrine of contributory negligence should be abrogated and replaced by comparative negligence.

Plaintiffs did not fully brief this issue because shortly after they filed their motion to strike, this court handed down its decision in Stewart v. Madison, 278 N.W.2d 284 (Iowa 1979), which declined to abrogate the doctrine of contributory negligence. Nonetheless, we will briefly comment upon this issue because events which have occurred since that decision have caused us to reflect upon our position.

Our reason for rejecting abolition or modification of the defense of contributory negligence in Stewart was two-fold. First, we determined that the matter was best left for the legislature as that body had already enacted provisions in the areas of comparative and contributory negligence and as it has superior means available for gathering and distilling information for what is essentially a policy decision. Id. at 295, 296. Secondly, we noted that general agreement of the need for change had not been reached. Id. at 295.

Since Stewart was decided, the number of states that have adopted comparative negligence has increased to thirty-five, thirty by legislation and five by judicial decision. Sowle & Conkle, Comparative Negligence Versus the Constitutional Guarantee of Equal Protection: A Hypothetical Judicial Decision, 1979 Duke L.J. 1083, 1087 n.9. We now consider the desirability for change to be less susceptible to dispute. As the Supreme Court of Michigan stated in its recent decision abrogating contributory negligence,

There is little dispute among legal commentators that the doctrine of contributory negligence has caused substantial injustice since it was first invoked in England in 1809. Of significance in this regard is that almost every common-law jurisdiction outside the United States has discarded contributory negligence and has adopted in its place a more equitable system of comparative negligence. Even in this country, considered the only remaining primary location employing contributory negligence, 32 states and the United States Supreme Court in the case of admiralty law have discarded or rejected it in favor of some form of comparative negligence. This precedent is so compelling that the question before remaining courts and legislatures is not whether but when, how and in what form to follow this lead.

Placek v. City of Sterling Heights, 405 Mich. 638, 652-53, 275 N.W.2d 511, 515 (1979) (footnotes omitted); accord, Annot., 78 A.L.R.3d 339, 373 (1977) ("(I)t seems to have been generally conceded, at least in theory, that the comparative negligence doctrine is a fairer, more equitable doctrine than that of contributory negligence. . . . ")

The primary factor voiced in decisions judicially adopting comparative negligence is that it is the fairer doctrine. For example, Li v. Yellow Cab Co., 13 Cal.3d 804, 811, 119 Cal.Rptr. 858, 863, 532 P.2d 1226, 1231 (1975), commented that the basic objection to contributory negligence is that "in a system in which liability is based on fault, the extent of fault should govern the extent of liability . . . ." Especially disconcerting to the West Virginia Supreme Court of Appeals was the harshness of the "all or nothing" aspect of contributory negligence: "(O)ur 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." Bradley v. Appalachian Power Co., 256 S.E.2d 879, 882 (W.Va.1979). Similar views

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were expressed earlier by the Florida Supreme Court in Hoffman v. Jones, 280 So.2d 431, 437 (Fla.1973):

The rule of contributory negligence is a harsh one which either places the burden of a loss for which two are responsible upon only one party or relegates to Lady Luck the determination of the damages for which each of two negligent parties will be liable. When the negligence of more than one person contributes to the occurrence of an accident, each should pay the proportion of the total damages he has caused the other party.

Many commentators have also been critical of the contributory negligence doctrine, as opposed to comparative negligence principles. See, e. g., II F. Harper & F. James, The Law of Torts §§ 22.1-.3 (1956); W. Prosser, Handbook of the Law of Torts § 65, at 417-18, § 67, at 433 (4th ed. 1971); V. Schwartz, Comparative Negligence §§ 21.1, .2 (1974); Fleming, The Supreme Court of California 1974-75 Foreword: Comparative Negligence at Last By Judicial Choice, 64 Calif.L.Rev. 239, 241-44 (1976); Haugh, Comparative Negligence: A Reform Long Overdue, 49 Or.L.Rev. 38 (1969); Maloney, From Contributory to Comparative Negligence: A Needed Law Reform, 11 U.Fla.L.Rev. 135 (1958); Schwartz, Contributory and Comparative Negligence: A Reappraisal, 87 Yale L.J. 697 (1978); Turk, Comparative Negligence on the March, 28 Chi.-Kent L.Rev. 189, 199-207 (1950); Vargo, Comparative Fault: A Need for Reform of Indiana Tort Law, 11 Ind.L.Rev. 829 (1978); Comment, Comparative Negligence in Arizona, 1979 Ariz.St.L.J. 581.

For the present, we defer consideration of whether these notions of fairness impose upon this court a duty to abrogate contributory negligence. We have indicated in Stewart and continue to believe that such a decision and the accompanying formulation, if necessary, of an alternative system, more appropriately rest with the legislature.

II. Whether the contributory negligence of the injured spouse bars a claim by the other spouse for loss of consortium.

Plaintiffs argue that Handeland v. Brown, 216 N.W.2d 574 (Iowa 1974), which held that a child's contributory negligence, not the sole proximate cause of his injury, is not a defense to a parent's claim for "the expense and actual loss of services, companionship and society resulting from injury to or death of a minor child" under Iowa R.Civ.P. 8, dictates that contributory negligence not be a bar to Harold's claim for loss of consortium. We agree.

Our decision in Handeland was based on the general principle of tort law that the fact that the negligence of another, not the plaintiff, concurred in producing the injury is no defense to any of those whose negligence proximately caused the injury. Our conclusion there is equally applicable here: "(W)e do not believe any proper basis exists for excluding from the operation of that principle only situations where concurrent proximate negligence of the injured person is pleaded as a defense to the claim of one who holds a legally protected interest in the health or life of such injured person." 216 N.W.2d at 578.

In reaching this conclusion, Handeland rejected the rule stated in section 494 of the Restatement (Second) of Torts, which bars a plaintiff from recovering for an invasion of his legally...

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