Gustafson v. Benda

• Citation: 661 S.W.2d 11
• Decision Date: 22 November 1983
• Docket Number: No. 63857,63857
• Parties: Thomas GUSTAFSON, Respondent, v. Donna M. BENDA, Appellant.
• Court: Missouri Supreme Court

Page 11

661 S.W.2d 11

Thomas GUSTAFSON, Respondent, v. Donna M. BENDA, Appellant.

No. 63857.

Supreme Court of Missouri En Banc.

Nov. 22, 1983.

As Modified on Denial of Rehearing

Dec. 20, 1983.

Gerre Langton, Sam P. Rynearson, St. Louis, for appellant.

Stephen H. Ringkamp, Thomas C. Hullverson, Hullverson, Hullverson & Frank, St. Louis, for respondent.

WELLIVER, Judge.

This case was transferred to this Court by the court of appeals after opinion. ¹ Rule 83.02. We review the case as if it were on original appeal. Rule 83.09.

The case involves a collision between plaintiff-respondent's motorcycle and defendant-appellant's automobile. The motorcycle was in the act of passing the automobile as the parties approached a "T" intersection. The accident occurred when appellant turned toward the left. ² The sole issue involved and certified for our reexamination is the definition of "the point of imminent peril" or "the point of immediate danger." If that point is as we have previously defined it in McClanahan v. St. Louis Public Service Co., 363 Mo. 500, 251 S.W.2d 704 (banc 1952), it is at the point at which appellant's automobile physically began to turn left, and, upon the facts of the case, respondent cannot recover. The court of appeals believed that McClanahan obliterated all distinction between the last clear chance and humanitarian negligence doctrines ³ and that this Court should examine the governing law.

In effect, the court of appeals has asked us to arrive at ultimate justice through a redefinition of the "point of imminent peril." The reexamination of the "point of imminent peril" so tactfully tendered by the court of appeals invites us to respond that there must be a better way to attain fairness and justice than to continue to indulge in fictions in the application of a bundle of antiquated and fairly inflexible rules of tort law.

For many years, authorities addressing the last clear chance doctrine ⁴ have recognized and

[a] number of commentators have observed that last clear chance is one step, and a rather significant one, toward a system of comparative negligence. ⁵ As pointed out by Fleming James, ⁶ the first cases of contributory negligence dealt with situations where the plaintiff's negligence was later in point of time than the defendant's. The directness of the relationship between the act and the injury was emphasized rather than the negligent quality of the act. As the idea of negligence gained recognition, there was a shift to the culpability of the conduct involved.

Whatever the difficulties implicit in the application of the doctrine of last clear chance, it did represent an attempt to shift the loss to the party who was more to blame. It was thus ethically and morally preferable to the prior rule that the slightest degree of negligence would bar the plaintiff's recovery. If all the intricacies of proximate cause, sequential negligence, and last opportunity are brushed aside and the problem viewed simply and realistically, it will be seen that the last clear chance cases represent nothing more or less than a comparison of fault.

As Dean Prosser has so aptly pointed out, however, the trouble with last clear chance is that it shifts the entire loss to the defendant. ⁷ "It is still no more reasonable to charge the defendant with the plaintiff's share of the consequences of his fault than to charge the plaintiff with the defendant's; and it is no better policy to relieve the negligent plaintiff of all responsibility for his injury than it is to relieve the negligent defendant. The whole floundering, haphazard, make-shift device operates in favor of some plaintiffs by inflicting obvious injustice upon some defendants; but it leaves untouched the greater number of contributory negligence cases in which the necessary time interval or element of discovery does not appear and the last clear chance cannot apply." ⁸ The obvious solution was a system of comparative negligence the adoption of which can be traced to a century of experience with last clear chance.

H. Woods, The Negligence Case: Comparative Fault 14-15 (1978) (footnotes renumbered).

The inevitability of the evolution from contributory negligence through the doctrine of last clear chance to some form of comparative negligence or fault is demonstrated by the number of states now utilizing some form of comparison to determine fault and liability in tort cases. Forty states, Puerto Rico, and the Virgin Islands now utilize some form of comparative fault or negligence. ⁹

In 1977 this Court on its own motion invited all interested parties to brief and argue the question whether it should adopt comparative negligence. Epple v. Western Auto Supply Co., 557 S.W.2d 253 (Mo. banc 1977). At that time the Court reiterated the view expressed in Anderson v. Cahill, 528 S.W.2d 742, 749 (Mo. banc 1975), that it had the inherent power to do so, but it deferred the matter to the legislature, which had recently been considering comparative negligence bills.

The following year, this Court took a step in the direction of "comparative fault" when it abandoned the concept of "active-passive negligence" in favor of "comparative fault" in multiple defendant cases. Missouri Pacific Railroad v. Whitehead & Kales Co., 566 S.W.2d 466 (Mo. banc 1978). During what might be described as the shakedown period for Whitehead & Kales and its newly adopted concept of comparative fault, the Court again deferred to the legislature and declined to adopt a comprehensive system of comparative fault by judicial decision. Steinman v. Strobel, 589 S.W.2d 293 (Mo. banc 1979).

The cases coming before this Court lead us to believe that Missouri lawyers have treated Whitehead & Kales as an invitation for them to try all multiple defendant cases on the theory of comparative fault. Although Missouri lawyers have pursued with vigor the direction pointed by Whitehead & Kales, our opinions have recognized exceptions to the application of Whitehead & Kales. In State ex rel. Maryland Heights Concrete Contractors, Inc. v. Ferriss, 588 S.W.2d 489 (Mo. banc 1979), we recognized the statutory immunity of employers in worker's compensation cases and declined to leave them as a party defendant for the sole purpose of determining their comparative fault. In Parks v. Union Carbide Corp. (Chemlime), 602 S.W.2d 188 (Mo. banc 1980), contractual liability was excluded from comparison in multiple defendant cases. In State ex rel. Tarrasch v. Crow, 622 S.W.2d 928 (Mo. banc 1981), we limited our decision to the release in question rather than state a general policy regarding releases, thereby leaving open the general question of how released parties would be handled with regard to comparison of their fault. In Kendall v. Sears, Roebuck & Co., 634 S.W.2d 176 (Mo. banc 1982), we reaffirmed our commitment to parental immunity and declined to keep the parent a party for the purpose of determining his comparative fault. In Safeway Stores, Inc. v. City of Raytown, 633 S.W.2d 727 (Mo. banc 1982), we permitted relative or comparative fault to be determined in a separate and subsequent action.

We have remained quiescent more than five years while waiting for the legislature I am mindful of the classical common law process articulated in R. Bridwell and R. Whiten, The Constitution and the Common Law 13-15 (Lexington, Massachusetts: D.C. Heath and Company, 1977). That process is given flexibility to embrace change by the doctrine "of desuetude, or the repeal of custom by disuse. Just as custom would be gradually introduced and adopted by consent, so might it gradually be abrogated by the 'tacit consent of all.' " Id. at 22.

to act. In Steinman v. Strobel, Chief Justice Donnelly wrote:

In James, Comments on Maki v. Frelk, 21 Vand.L.Rev. 891, 895 (1968), it was noted "that juries now do for plaintiffs illicitly what the change [to comparative negligence] would do for them forthrightly. * * * Juries * * * probably speak for the community sense of fairness more faithfully than do legislatures. Consistent jury acceptance of proportional negligence * * * suggests that legislative failure to enact this reform reflects inertia rather than community sentiment."

589 S.W.2d at 296 (emphasis added to last sentence).

In the interim, our opinions have left the practicing bar with little guidance as to the basis, extent, and consequences of the doctrine of comparative fault that we enunciated in Whitehead & Kales. We now are past the time when we should have resolved the uncertainty surrounding comparative fault by expanding the application of the doctrine. We believe the bar anticipated and expected that we would do so.

Little more can be said about the historical development of the philosophy of the doctrine of comparative fault than what we have already written in Whitehead & Kales, Steinman, Chemlime, Maryland Heights, Tarrasch, Kendall, and Safeway. Our five years of experience with a limited application of comparative fault fully demonstrates that fairness and justice can best be achieved through a broader application of that doctrine. It is workable and will fulfill the needs of our complex modern society.

Expansion of comparative fault as first enunciated in Whitehead & Kales is in the best interest of all litigants. Comparative fault affords practicing attorneys a less complex and far more effective method for representing the rights of their clients, either plaintiff or defendant. Joining all parties to a transaction in a single lawsuit for the comparison of the fault of all concerned can best expedite litigation and relieve the congestion of overcrowded courts.

All that remains is for us to find the simplest and most clear, concise, and direct method for adopting a comprehensive system of comparative fault for the trial of tort cases and a procedure for accomplishing the transition to comparative fault. The first step is to reverse and remand this case for retrial based upon the comparative...