Scott v. Rizzo

Decision Date12 February 1981
Docket NumberNo. 13450,No. 13442,No. 13235,No. 13451,13235,13442,13450,13451
Citation1981 NMSC 021,96 N.M. 682,634 P.2d 1234
PartiesJohn SCOTT, Petitioner, v. John F. RIZZO, Respondent. Sidney C. CLAYMORE, Plaintiff-Appellant, v. CITY OF ALBUQUERQUE, Defendant-Appellee. Paul J. JORDAN, Plaintiff-Appellant, v. CITY OF ALBUQUERQUE, et al., Defendants-Appellees. Max D. McCREARY, Petitioner, v. Paul J. JORDAN, Respondent. CITY OF ALBUQUERQUE, Petitioner, v. Sidney C. CLAYMORE, Paul Jordan, Michael DeHerrera and Max D. McCreary, Respondents.
CourtNew Mexico Supreme Court

Bruce P. Moore, Thomas A. Simons, IV, Santa Fe, Miller, Stratvert, Torgerson & Brandt, Ranne B. Miller, Albuquerque, White, Koch, Kelly & McCarthy, Booker Kelly, Santa Fe, Johnson & Lanphere, D. James Sorenson, Keleher & McLeod, P. A., Robert C. Conklin, Charles A. Pharris, George R. "Pat" Bryan, III, Jeffrey L. Baker, Albuquerque, Miller, Stratvert, Torgerson & Brandt, Alan C. Torgerson, Albuquerque, Hinkel, Cox, Eaton, Coffield & Hensley, Stuart D. Shanor, Roswell, Tansey, Rosebrough, Roberts & Gerding, P. C., Byron Caton, Farmington, Peter R. Moughan, Jr., Larry D. Beall, Shaffer, Butt, Thornton & Baehr, P. C., Paul L. Butt, Deborah S. Davis, Civerolo, Hansen & Wolf, P. A., Carl J. Butkus, William H. Carpenter, Bette R. Velarde, Albuquerque.


This Court granted certiorari in Scott v. Rizzo and in the consolidated cases of Claymore v. City of Albuquerque and Jordan v. City of Albuquerque, et al. We also granted in Scott v. Rizzo a motion to consolidate with the Claymore and Jordan cases. These cases involve the issue of comparative negligence. This issue has been addressed time and time again by this Court and we know and understand the importance of this doctrine. It is the decision of this Court that we adopt in toto the opinion authored by Judge Walters of the Court of Appeals thereby adopting comparative negligence as a recognized legal doctrine in New Mexico. While this marks a significant change in the law of negligence, we feel that it will improve the administration of justice. We have held before that long-term adherence to a rule does not, by itself, justify its continuance if justice demands its abolition. "Merely because a court made rule has been in effect for many years does not render it invulnerable to judicial attack once it reaches a point of obsolescence."Hicks v. State, 88 N.M. 588, 544 P.2d 1153 (1975). See also, Flores v. Flores, 84 N.M. 601, 506 P.2d 345 (Ct.App.1973); State v. Gunzelman, 85 N.M. 295, 512 P.2d 55 (1973); Alexander v. Delgado, 84 N.M. 717, 507 P.2d 778 (1973); Stang v. Hertz Corporation, 83 N.M. 730, 497 P.2d 732 (1972); State ex rel. Reynolds v. Molybdenum Corp. of Amer., 83 N.M. 690, 496 P.2d 1086 (1972); Williamson v. Smith, 83 N.M. 336, 491 P.2d 1147 (1971).

Judge Walter's opinion is an excellent analysis of the issue of comparative negligence. For this reason, we adopt the Court of Appeals' decision. We also realize that the legislature is now in session and may wish to address the issue.

EASLEY, C. J., SOSA, Senior Justice and PAYNE, FEDERICI and RIORDAN, JJ., concur.



{ 1} This is a consolidated matter concerned with two plaintiffs who filed separate suits in Bernalillo County, both claiming accidental injuries caused by negligence of the respective defendants. In each case, defendants denied negligence and affirmatively alleged contributory negligence on the part of plaintiff. In each case, plaintiff moved to strike the defense of contributory negligence. The trial judge, assigned to both cases, denied the motions to strike. At the same time, the orders of denial contained the necessary language to permit application for interlocutory appeals, and proceedings in both actions were stayed. The Supreme Court granted the applications. By order, it transferred both matters to this court "with instructions to address the issues notwithstanding prior decisions."

{ 2} Two recent decisions of the Supreme Court provide the perspective for this order. Commercial U. Assur. v. Western Farm Bur., Inc., 93 N.M. 507, 601 P.2d 1203 (1979), referred to New Mexico's continued adherence to contributory negligence as a bar to recovery; and City of Albuquerque v. Redding, 93 N.M. 757, 605 P.2d 1156 (1980), referred to comparative negligence as "more enlightened." There would have been no need for the order unless the question of contributory negligence versus comparative negligence was open. We view the Supreme Court order as directing us to decide the question as if we were writing on a blank slate.

{ 3} We are asked by plaintiffs to assume, for the purpose of this appeal, that defendants were negligent, that plaintiffs were likewise negligent, and that the concurrent negligence of the adverse parties contributed proximately to the injuries sustained by plaintiffs. We approach the issue from that standpoint because it permits us to analyze the question legally and intellectually, free of any influence from other facts in either case, apparent or alleged or discussed in the briefs, at this stage of the proceedings.

{ 4} The legal issue thus presented is whether New Mexico should judicially declare that the existence of contributory negligence be no longer a complete bar against a plaintiff's recovery, but that it be replaced by a system of comparative negligence which would assess damage liability directly proportionate with fault.

{ 5} We hold that the doctrine of comparative negligence more equitably apportions damages and, in the interest of fundamental justice, is adopted in this jurisdiction and replaces the "all-or-nothing" rule of contributory negligence.1

{ 6} In reaching this conclusion we have had the benefit of extensive and exhaustive briefings by the parties, by amicus Alliance of American Insurers, and by amicus New Mexico Defense Lawyers Association. Additionally, there is a plethora of written material in favor of and opposed to each doctrine. The subject has been researched and analyzed, not only in scholarly court decisions but by legal writers, almost beyond absorption.2

{ 7} We have attempted a thorough examination of the numerous authorities, with careful attention being accorded to the arguments made on both sides of the question, and are persuaded that logic, justice, and experience compel the result we reach today.

{ 8} Thus, we shall not attempt, nor do we believe it necessary, to once again discuss in depth the history, case law, and statutory developments so thoroughly dissected by others over the past five decades. Rather, as briefly as is consonant with judicial integrity, we consider (1) the power of the courts to adopt a comparative negligence rule; (2) the ramifications of any such adoption upon existing common-law and statutory tort liability concepts; and (3) the appropriate form of comparative negligence to be adopted. We dispose first of the jurisdictional question raised in one of the briefs.


{ 9} Amicus New Mexico Defense Lawyers Association asserts at the outset that this court has no authority to decide the issue presently before us because it was improperly brought by interlocutory appeal to the Supreme Court in the first instance, and thereafter improperly referred to us by that court. The Association argues that "the interlocutory appeal (is) based on tort and is.... in the Court of Appeals," § 34-5-8, N.M.S.A.1978; therefore, it should not have been filed in the Supreme Court. It contends, secondly, that the relief requested requires overruling case law promulgated by the Supreme Court, and this court is without power to do so, citing Alexander v. Delgado, 84 N.M. 717, 507 P.2d 778 (1973).

[1] [2]{ 10} We do not consider whether the question is properly raised. See St. Vincent Hospital v. Salazar, 95 N.M. 147, 619 P.2d 823 (S.Ct. 1980). Nevertheless, this argument may be answered summarily. These cases are before us for consideration by virtue of the Supreme Court's orders directing us to decide the issue "notwithstanding prior decisions." As an inferior court, we are to obey orders of the Supreme Court. Alexander v. Delgado, supra. This Court has no authority to review orders of the Supreme Court. Collins v. Michelbach, 92 N.M. 366, 588 P.2d 1041 (1979); State v. Scott, 90 N.M. 256, 561 P.2d 1349 (Ct.App.1977). Thus, we do not decide the question of our jurisdiction; rather, we comply with the Supreme Court order.


{ 11} The early nineteenth-century English case of Butterfield v. Forrester, 11 east 60, 103 Eng.Rep. 926 (K.B.1809), is traditionally accepted by most but not all commentators (see Hoffman v. Jones, 280 So.2d 431 (Fla.1973), Justice Roberts' dissent) as the progenitor of the contributory negligence rule. Butterfield reflected the concept prevalent at the time that a plaintiff's irresponsibility in failing to use due care for his own safety erased whatever fault could be laid at defendant's feet for contributing to the injury. See F. Harper and F. James, Law of Torts, § 22.1 at 1198 (1956). That view flowered during the industrial revolution, with judges protective of the growth of fledgling businesses, and solicitous that material and industrial progress be unhampered by the economic burdens attending liability for negligent injury to others. They uncritically and enthusiastically embraced the judge-made common-law of Butterfield, supra,3 and enabled it to gain an entrenched status in the common-law of this country. Nevertheless, as Justice Williams noted in Placek v. City of Sterling Height, 405 Mich. 638, 275 N.W.2d 511, 515 (1979), few writers dispute the substantial injustices suffered because of the contributory negligence doctrine; and as a result of those apparent injustices, few common-law jurisdiction, including thirty-five states in this country, have failed to repudiate the doctrine.4 New Mexico is one of the remaining fifteen states which have not done so up to the present date.

{ 12} It is argued by all defendant parties and friends of the court that any adoption of comparative negligence5 should be made by the legislature, not the courts. This is the argument which has been presented in every jurisdiction where courts have considered abolishing this anachronistic "all-or-nothing" doctrine. Despite acknowledgement that contributory negligence originated with a judicial decision, we are urged that the fundamental...

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