Hilen v. Hays

• Citation: 673 S.W.2d 713
• Parties: Margie Montgomery HILEN, Appellant, v. Keith HAYS, Appellee.
• Decision Date: 05 July 1984
• Court: United States State Supreme Court — District of Kentucky

Page 713

673 S.W.2d 713

Margie Montgomery HILEN, Appellant, v. Keith HAYS, Appellee.

Supreme Court of Kentucky.

July 5, 1984.

William R. Garmer, Perlman & Garmer, PSC, Lexington, for appellant.

C. William Swinford, Stoll, Keenon & Park, Lexington, for appellee.

Bert T. Combs, Lawrence E. Forgy, Jr., Lexington, for Peerless Coal Co.

LEIBSON, Justice.

The appellant, Margie Montgomery Hilen, was severely injured when the automobile in which she was a passenger was driven into the back of another vehicle and overturned. She sued the driver, appellee Keith Hays. There was no question but that the cause of the accident was the driver's negligent operation of the vehicle. There was a factual dispute as to whether the passenger failed to exercise reasonable care for her own safety by riding with a person whom she knew or should have known to be too intoxicated to drive safely.

At the conclusion of the trial the judge directed a verdict as to appellee's negligence and submitted the case to the jury solely on the issue of appellant's contributory negligence. The jury was given the usual instruction that contributory negligence was a complete bar to any recovery. The appellant objected and tendered an instruction based on the doctrine of comparative negligence, which was refused. The jury found for the appellee and this appeal followed. The Court of Appeals affirmed. We have granted discretionary review.

The sole issue before us is whether negligence on the part of the appellant contributing to her injury should be a complete bar to any recovery, as is the traditional rule in the Commonwealth, or whether the time has come for us to reject this rule and adopt the doctrine of comparative negligence allocating responsibility for the injury between the parties in proportion to their contributory fault.

There are a number of significant issues underlying the question before us. These include consideration of the origin and development of our present rule where contributory negligence is a complete defense, the doctrine of stare decisis, whether the judiciary should defer to the legislature in this matter, and the role of fundamental fairness in the development of the common law. Further, if changes are to be made, we must consider whether such changes should be broad or narrow in scope and when they should be implemented.

Contributory negligence developed as a defense to a negligence action at a comparatively late date. The earliest reported case is Butterfield v. Forrester, 11 East 60, 103 Eng.Rep. 926 (1809). The rule in Butterfield v. Forrester entered American jurisprudence in 1824 in the Massachusetts case of Smith v. Smith, 2 Pick. (19 Mass.) 621 (Mass.1824). The first Kentucky case on record to apply this principle is Newport News & M.V.R. Co. v. Dauser, 13 Ky.L.Rep. 734 (1892), which is reported as holding:

"(I)f the plaintiff so far contributed to the injury that but for his contributory negligence the injury would not have been received, he cannot recover, ..."

Thereafter, in a series of cases extending through 1970, ¹ our Court continued to recognize and apply the principle of contributory negligence as a complete bar to recovery without consideration to the relative merits of comparative negligence as an alternative. The last reported opinion from this Court making a clear statement of the rule is Houchin v. Willow Avenue Realty Co., Ky., 453 S.W.2d 560, 563 (1970), stating that "we have not adopted the comparative negligence doctrine in Kentucky ..."

There have been several reported cases since Houchin in which our intermediate appellate court was asked to consider the comparative negligence alternative but held, quite properly, that if previous decisions upholding contributory negligence as a complete defense are to be overruled, the decision would have to emanate from the Supreme Court. Mackey v. Greenview Hospital, Inc., Ky.App., 587 S.W.2d 249 (1979); Vinson v. Gobrecht, Ky.App., 560 S.W.2d 242 (1977).

This brief historical review illustrates several important points. Section 233 of the Kentucky Constitution provides:

"All laws which, on the first day of June, one thousand seven hundred and ninety-two, were in force in the State of Virginia, and which are of a general nature ... shall be in force within this State until they shall be altered or repealed by the General Assembly."

This provision had the effect of adopting as the law of this state the common law of England that was part of the law of the State of Virginia at the time. Coleman v. O'Leary's Exr., 114 Ky. 388, 70 S.W. 1068 (1902); Jenkins v. Berry, 119 Ky. 350, 83 S.W. 594 (1904). But contributory negligence as a bar to recovery was not part of the law of the State of Virginia nor part of the English common law in 1792. It is court-made law originating after the applicable constitutional provision.

The next important fact, historically, is that the Kentucky General Assembly has failed to address this subject. The only statutes which appear to have any relevance to our consideration are: (1) KRS 454.040 which provides that a jury "may" elect to apportion damages among defendants jointly or severally liable; (2) KRS 411.320 which provides that contributory negligence is a defense to a product liability action; and (3) KRS 277.320 which adopts comparative negligence as the rule for railroad employees in actions against their employers, extending the same provision as found in the Federal Employers' Liability Act (FELA), 45 U.S.C.S. § 53, to Kentucky causes of action if not covered by the federal act.

The first statute, KRS 454.040, if it has a bearing, seems to favor a policy of liability apportioned according to fault. The second statute, KRS 411.320, was intended to settle an ongoing controversy as to whether contributory negligence is a defense to a products liability action. It may be arguable that the statute is capable of being construed as providing for contributory negligence as a complete defense to a products liability action (a question which remains open for a case in point), but from its background it is clear that the legislative purpose was to deal with the availability of contributory negligence as a defense in products cases and not with whether contributory negligence should result in a complete bar or a proportionate recovery. The third statute, KRS 277.320, not only expresses a preference for comparative negligence in a suit by an employee against a common carrier by railroad, but also a preference for the pure form of comparative negligence.

Thus an historical review compels the conclusion that the contributory negligence rule as it applies to this case is court-made law that bears the imprimatur of neither the Kentucky constitution nor the General Assembly. ² After conducting a similar historical review, Prosser states in the Law of Torts, (4th Ed., 1971), p. 434:

"There never has been any essential reason why the change could not be made without a statute by the courts which made the contributory negligence rule in the first place ..."

Having deference to the doctrine of stare decisis, the courts of the several states have been understandably reluctant to abandon contributory negligence as a complete defense notwithstanding the relative merits of the two competing positions. The tendency was to defer consideration of comparative negligence to the legislatures of the several states, although there was no statute mandating the traditional rule and thus no question of separation of powers involved. Courts were leaving to the legislature responsibility for undoing what the courts had done in the first place.

So the evolution towards comparative negligence began in the various state legislatures first in a trickle and then in an avalanche. The first comparative negligence statute was enacted in Mississippi in 1910. Wisconsin and Nebraska followed in 1913, South Dakota in 1941, Arkansas in 1957, Maine in 1964. Following a full-scale public debate of the relative merits of comparative negligence in textbooks and treatises, twenty-six more states followed between 1969 and 1983. At present count thirty-two states, Puerto Rico, and the Virgin Islands have adopted comparative negligence or comparative fault by statute. ³

In addition, between 1975 and the present, courts in nine other states have refused to wait further for their legislatures to act and have adopted comparative negligence by judicial decision. ⁴ Thus the doctrine of contributory negligence as a complete bar, challenged by most legal scholars in the 50's and 60's, has been generally rejected since then, first legislatively, and then judicially where the legislature has refused to act. As the Supreme Court of Missouri stated in Gustafson v. Benda, 661 S.W.2d 11 (Mo.1983):

"We have remained quiescent more than five years while waiting for the legislature to act....

... legislative failure to enact this reform reflects inertia rather than community sentiment." Id. at 14-15.

A comparative negligence bill was introduced at the 1968 session of the Kentucky General Assembly and a similar bill has been introduced in most, if not all, sessions since then. Two bills were introduced in 1984 and neither got out of committee. Senate Bill 172, 84 BR 1593; Senate Bill 211, 84 BR 1734.

In broad outline, stare decisis directs us to "stand by" our previous decisions unless there are sound legal reasons to the contrary. Every case must be decided with a respect for precedent. But the doctrine of stare decisis does not commit us to the sanctification of ancient fallacy. In Goetzman v. Wichern, 327 N.W.2d 742 (Iowa 1983), the Supreme Court of Iowa observed:

"(S)tare decisis does not preclude the change. That principle does not require blind imitation of the past or adherence to a rule ... We must reform common law doctrines that are unsound and unsuited to present conditions. Id. at 753.

The common law is not a stagnant pool, but a moving stream. City of...