Godfrey v. State

• Decision Date: 07 January 1975
• Docket Number: No. 43203,43203
• Citation: 530 P.2d 630,84 Wn.2d 959
• Parties: John A. GODFREY, Personal Representative of the Estate of William S. Berner, Deceased, Petitioner, v. The STATE of Washington, Respondent, and Gisela Berner, Defendant.
• Court: Washington Supreme Court

Page 959

84 Wn.2d 959

530 P.2d 630

John A. GODFREY, Personal Representative of the Estate of William S. Berner, Deceased, Petitioner, v.The STATE of Washington, Respondent and Gisela Berner, Defendant.

No. 43203.

Supreme Court of Washington, En Banc.

Jan. 7, 1975.

Rehearing Denied April 8, 1975.

Daniel F. Sullivan, Seattle, for petitioner Godfrey.

Preston, Thorgrimson, Ellis, Holman & Fletcher, by J. Markham Marshall and Charles E. Peery, Seattle, for petitioner Nash.

Slade Gorton, Atty. Gen., and Roger A. Gerdes, Asst. Atty. Gen., for respondent State.

Robert Ward Freedman, Seattle, for defendant Berner.

Ken Earl, Moses Lake, amicus curiaeFrank August Peters, Inc., P.S., Tacoma, amicus curiae, on behalf of Wash. Trial Lawyers Assn.; Eugene H. Knapp, Jr., Seattle, amicus curiae, on behalf of Wash.Assn. of Defense Counsel.

STAFFORD, Associate Justice.

Petitioner Godfrey moved for a summary judgment that RCW 4.22.010 and 4.22.020¹ should be applied retroactively.We granted a writ of certiorari to review a pretrial order that the statute'applies prospectively only.'

The facts of the automobile accident are not important to a resolution of the question.The sole issue is whether the trial court erred in holding that RCW 4.22.010 and 4.22.020 apply prospectively to causes of action having arisen prior to their effective date, but in which trials have been commenced subsequent thereto.

We hold the trial court erred.RCW 4.22.010 and 4.22.020 apply retrospectively to causes of action having arisen prior to the statute's effective date of April 1, 1974, but in which trials have begun subsequent thereto.

A review of our cases reveals that we have given retroactive application to statutes for two separate and distinct reasons.The first category are those statutes which relate to practice, procedure or remedies and do not affect a contractual or vested right.Nelson v. Department of L & I, 9 Wash.2d 621, 115 P.2d 1014(1941).Concerning the first class, procedural statutes usually apply to pending causes of action that do not affect contractual or vested rights or do not impose a penalty.Nelson v. Department of L & I, Supra.See alsoSnow's Mobile Homes, Inc. v. Morgan, 80 Wash.2d 283, 494 P.2d 216(1972).Clearly the questioned statute does not impose a penalty.It is equally evident that it affects no contractual obligations between the parties litigant in this or any other normal tort action.In fact, respondent makes no such contention.

We also hold there is no vested right to a common law bar to recovery that is provided by the affirmative defense of contributory negligence.Peterson v. Minneapolis, 285 Minn. 282, 173 N.W.2d 353, 37 A.L.R.3d 1431(1969).A defendant has no vested right in a tort defense, the merits of which are not determined until a subsequent trial and upon which he did not and could not have relied at the time the accident happened.Fussner v. Andert, 261 Minn. 347, 361, 113 N.W.2d 355(1961), See alsoGelbman v. Gelbman, 23 N.Y.2d 434, 297 N.Y.S.2d 529, 245 N.E.2d 192(1969).Further, such a right does not rise to any higher status by the mere passage of time.

Although relied on by respondent herein, Hammack v. Monroe Street Lumber Co., 54 Wash.2d 224, 339 P.2d 684(1959)andNogosek v. Truedner, 54 Wash.2d 906, 344 P.2d 1028(1959) do not support the proposition that defendants have a Vested right in the common law bar to recovery afforded by the affirmative defense of contributory negligence.Those two opinions dealt with the Statutory abolition of a prior Statutory immunity (Hammack) or defense (Nogosek).At best they stand for no more than that a defendant may be said to have a vested right in a purely Statutory defense (1) if it can be said that there was reliance on that statutory defense at the time of the tort, or (2) that the statutory defense negates the cause of action.Clearly, in the case at hand, neither situation is involved.We are concerned solely with a common law bar to recovery initiated by a common law affirmative defense.

Due process does not prevent a change in the common law as it previously existed.There is neither a vested right in an existing law which precludes its amendment or repeal nor a vested right in the omission to legislate on a particular subject.Henry v. McKay, 164 Wash. 526, 3 P.2d 145(1931);See alsoGelbman v. Gelbman, Supra.The Fourteenth Amendment does not curtail a state's power to amend its laws, common or statutory, to conform to changes in public policy.Henry v. McKay, Supra;Shea v. Olson, 185 Wash. 143, 53 P.2d 615(1936);Overlake Homes, Inc. v. Seattle-First Nat'l Bank, 57 Wash.2d 881, 360 P.2d 570(1961);Gelbman v. Gelbman, Supra.A vested right, entitled to protection from legislation, must be something more than a Mere expectation based upon an anticipated continuance of the existing law; it must have become a title, legal or equitable, to the present or future enjoyment of property, a demand, or a legal exemption from a demand by another.

In the case at hand, the legislature did not, by declaring contributory negligence no longer a bar to recovery in an action to recover damages caused by negligence, create a new liability where none previously existed.Rather, the legislature permitted recovery previously denied, after liability had been established.In this regard Fussner v. Andert, supra, is of interest.Fussner dealt with a death-by-wrongful-act statute, applying it retroactively.In doing so the Minnesota Supreme Court held that the statute was remedial in nature and thus should be construed liberally in light of current social conditions.The court commented that no contract or property laws were involved under which the parties would have planned their conduct in advance in accordance with existing law.At page 361 of 261 Minn., at page 364 of 113 N.W.2d, the court said further: '(W)e are of the view that the same considerations do not exist with reference to negligence actions, particularly . . . where the conduct of the defendant was in nowise controlled by the existing law of the state at the time the accident happened.'(Italics ours.)See alsoGelbman v. Gelbman, supra.

Turning to the instant case, it must be noted that respondent does not argue that it, or any other defendant, would have relied on the common law bar to recovery provided by contributory negligence when committing the alleged tort of negligence.It almost goes without saying that the existence or lack of such an affirmative defense has no effect on the every day conduct of individuals.Defendants do not act less negligently or more so because of the presence or absence of an affirmative defense of contributory negligence.One cannot have a vested right in a tort defense the merits of which cannot be determined until trial and upon which he does not and cannot rely in the initial injury to a plaintiff.Thus, we hold there is no vested right in the affirmative defense of contributory negligence.

The nature of contributory negligence, as an affirmative defense, lends no support to respondent's claim of prospective application.Contributory negligence does not exist in a vacuum.Such affirmative defense presupposes negligence on the part of the defendant.If a defendant is not negligent and a plaintiff suffers injury as a result of his own negligence, it can only be said that plaintiff's injury was caused by his own primary negligence, not his contributory negligence.In other words, contributory negligence is a matter of affirmative defense that comes into being only after plaintiff has first established defendant's negligence and liability.Contributory negligence can exist only as a coordinate or counterpart of a defendant's negligence.Jackson v. McBride, 270 N.C. 367, 154 S.E.2d 468(1967);See alsoFarrow v. Ostrom, 10 Wash.2d 666, 117 P.2d 963(1941);Wines v. Engineers Ltd. Pipeline Co., 51 Wash.2d 487, 319 P.2d 563(1957);Gaines v. Northern Pac. Ry., 62 Wash.2d 45, 380 P.2d 863(1963).If, however, a defendant establishes plaintiff's contributory negligence, the defendant is not thereby relieved of liability for the consequences of his own negligence.Rather, the plaintiff is simply barred from recovery.

The statute under consideration indicates nothing to the contrary.It does not abrogate the defense that a plaintiff's own negligence contributed to his own injuries or damages (for want of a better term, known as contributory negligence).Rather, it only holds that a plaintiff's contributory negligence, if any, is not an inexorable bar to recovery in all cases.Recovery will, however, be diminished in proportion to the percentage of negligence attributed to the party recovering.As thus worded, the statute changes the law of contributory negligence only to the extent that a plaintiff's own negligence shall no longer negate his right of recovery despite proof of a defendant's negligence and liability.Under our statutory concept of 'pure' comparative negligence, recovery may range from the most miniscule amount to near total recovery.In short, the statute changes the factor of contributory negligence from a total bar to recovery to a factor that mitigates damages.Natchez & S.R.R. Co. v. Crawford, 99 Miss. 697, 55 So. 596(1911).Whether characterized as contributory negligence or comparative negligence, however, the burden of pleading and proving the affirmative defense still rests on the defendant and the same causal connection must be shown.Nevertheless, if these matters are established by a defendant(whether under contributory or comparative negligence), plaintiff's cause of action is not abolished.Only his Recovery is proportionately diminished under pure comparative negligence.

Consequently, RCW 4.22.010 does not change liability for the consequences of negligence.It only substitutes a concept of partial recovery for the common law total bar to recovery.In so doing, the legislature has provided a...