No. 52875. — Appeal from the Appellate Court for the First
District; heard in that court on appeal from the Circuit Court of
Cook County, the Hon. Arthur A. Sullivan, Judge, presiding.
No. 53788. — Appeal from the Circuit Court of Lake County, the
Hon. Harry D. Strouse, Judge, presiding.
MR. JUSTICE MORAN DELIVERED THE OPINION OF THE COURT:
David A. Decker, of May, Decker & Associates, Ltd., of Waukegan, for appellant.
James J. DeSanto, of Rawles, Katz, DeSanto & McKeown, Ltd., of Waukegan, for appellees.
Baker & McKenzie, of Chicago (Francis D. Morrissey and Edward J. Zulkey, of counsel), for amicus curiae Illinois Defense Counsel.
Jacobs, Williams & Montgomery, Ltd., of Chicago (Barry L. Kroll and Wyatt Jacobs, of counsel), amicus curiae.
These two cases, consolidated for appeal, present a question which arises solely from the pleadings. In each, plaintiff's complaint included a count based on the doctrine of comparative negligence, which count was dismissed by the trial court on motion by the defendants. In Alvis v. Ribar, the appellate court affirmed summarily, stating, "* * * it is not for this court to attempt to reverse the many cases and opinions of the Illinois Supreme Court in this area." (78 Ill. App.3d 1117, 1119.) This court allowed leave to appeal. In Krohn v. Abbott Laboratories, Inc., we granted a motion for direct appeal under Rule 302(b) (73 Ill.2d 302 (b)).
Plaintiffs ask this court to abolish the doctrine of contributory negligence and to adopt in its place the doctrine of comparative negligence as the law in Illinois.
In Alvis v. Ribar, a motor vehicle operated by defendant Ribar skidded out of control and collided with a metal barrel which anchored an official intersection stop sign. The sign had been temporarily placed at the intersection while construction work on the intersecting road was being done by the defendant contractor, Milburn Brothers, Inc., under the supervision of defendant Cook County. Plaintiff Alvis, who was a passenger in defendant Ribar's vehicle, sustained injuries as a result of the collision. He filed a multicount personal injury complaint seeking damages from all three defendants.
In Krohn v. Abbott Laboratories, Inc., a tractor trailer operated by defendant Sweetwood and owned by defendant Abbott Laboratories, Inc., was traveling west when it collided with an eastbound vehicle operated by decedent, Klaus D. Krohn. The collision occurred in the eastbound lane. As a result of the collision, Klaus D. Krohn sustained fatal injuries. Plaintiff, Karin D. Krohn, as administrator of the estate of Klaus D. Krohn, brought a wrongful death action in the circuit court of Lake County against both defendants.
THE HISTORY OF CONTRIBUTORY NEGLIGENCE
Generally, under the doctrine of contributory negligence, a plaintiff is barred from recovering compensation for his injuries if his negligence contributed to the accident. The origin of the doctrine can be traced to the case of Butterfield v. Forrester (1809), 11 East 60, 103 Eng. Rep. 926. There defendant had placed a pole across part of a public road. Plaintiff, riding his horse too fast to see the obstruction, rode into the pole and was injured. The concept of contributory negligence was created by the words of Chief Justice Lord Ellenborough:
"Two things must concur to support this action, an obstruction in the road by the fault of the defendant, and no want of ordinary care to avoid it on the part of the plaintiff." Butterfield v. Forrester (1809), 11 East 60, 61, 103 Eng. Rep. 926, 927.
The doctrine was swiftly adopted in American jurisprudence, commencing with the case of Smith v. Smith (1824), 19 Mass. (2 Pick.) 621, 13 Am. Dec. 464. (See H. Woods, The Negligence Case: Comparative Fault 7 (1978); Turk, Comparative Negligence on the March, 28 Chi.-Kent L. Rev. 189, 198 (1950).) Legal scholars attribute the swift and universal acceptance of the doctrine to newly formed industry's need for protection "against the ravages which might have been wrought by over-sympathetic juries." (Turk, Comparative Negligence on the March, 28 Chi.-Kent L. Rev. 189, 201 (1950); H. Woods, The Negligence Case: Comparative Fault 8 (1978). Also see Scott v. Rizzo (1981), 96 N.M. 682, 685, 634 P.2d 1234, 1237; Hoffman v. Jones (Fla. 1973), 280 So.2d 431, 437.) Judicial concern was particularly evident in the area of personal injury suits brought by railroad employees against the railroads. The courts> realized that, in the pervading public view that saw railroads as "harmful entities with deep pockets" (H. Woods, The Negligence Case: Comparative Fault 9 (1978)), juries' sympathies toward plaintiffs could wreak financial disaster upon the burgeoning industry.
Case law developed the doctrine of contributory negligence in Illinois. In Aurora Branch R.R. Co. v. Grimes (1852), 13 Ill. 585, 587-88, this court followed the Butterfield case and added the requirement that the burden of proof is upon the plaintiff to show not only negligence on the part of the defendant, but also that plaintiff himself exercised proper care and circumspection. In the next few years the decisions involving "last clear chance" (Moore v. Moss (1852), 14 Ill. 106, 110 (later discussed)), degrees of negligence (Chicago & Mississippi R.R. Co. v. Patchin (1854), 16 Ill. 198, 203), and proximate cause (Joliet & Northern Indiana R.R. Co. v. Jones (1858), 20 Ill. 221, 227) created confusion. Mr. Justice Breese reviewed these decisions in Galena & Chicago Union R.R. Co. v. Jacobs (1858), 20 Ill. 478, a case which involved a 4 1/2-year-old boy who had been run over by a railroad locomotive. There the court ultimately disagreed with the Butterfield holding and adopted a form of comparative negligence in its place.
"This, and all the cases subsequent, to which we have referred, have one common basis, and that is found in the old law maxim that `no man shall take advantage of his own wrong or negligence' in his prosecution or defense against another." (Galena & Chicago Union R.R. Co. v. Jacobs (1858), 20 Ill. 478, 490-91.)
The court concluded that liability does not depend absolutely on the absence of all negligence on the part of the plaintiff but upon the relative degrees of care or want of care manifested by both parties.
"[A]ll care or negligence is at best but relative, the absence of the highest possible degree of care showing the presence of some negligence, slight as it may be. The true doctrine, therefore, we think is, that in proportion to the negligence of the defendant, should be measured the degree of care required of the plaintiff — that is to say, the more gross the negligence manifested by the defendant, the less degree of care will be required of the plaintiff to enable him to recover. Although these cases do not distinctly avow this doctrine in terms, there is a vein of it very perceptible, running through very many of them, as, where there are faults on both sides, the plaintiff shall recover, his fault being to be measured by the defendant's negligence, the plaintiff need not be wholly without fault * * *.
We say, then, that in this, as in all like cases, the degrees of negligence must be measured and considered, and wherever it shall appear that the plaintiff's negligence is comparatively slight, and that of the defendant gross, he shall not be deprived of his action." (Galena & Chicago Union R.R. Co. v. Jacobs (1858), 20 Ill. 478, 497.)
Thus, in 1858, Illinois became a State which followed the doctrine of comparative negligence.
In 1870, in the case of Illinois Central R.R. Co. v. Baches (1870), 55 Ill. 379, 389-90, the court held:
"The seventh of appellee's instructions is not accurate, as it nowhere limits or defines the duty of deceased. Under this instruction, the jury were required to find for the plaintiff, although deceased might have been guilty of negligence equal to that of appellants. Such has never been recognized as the rule of law in this class of cases. * * * [W]e are not inclined to extend the rule, as there is no warrant in the common law for allowing the plaintiff any greater latitude. He should use prudence and care, but failing to do so, and is guilty of negligence, he can not recover, unless the negligence of the defendant clearly and largely exceeds his. This instruction should have been refused, or modified so as to announce the rule of comparative negligence before it was given."
In the case of Illinois Central R.R. Co. v. Hammer (1874), 72 Ill. 347, 351, the court attempted to clarify the definition of comparative negligence. "The rule on this subject, it may be, has not at all times been accurately stated by this court. By inadvertence, it has been loosely and indefinitely stated in some of the cases, but what the court has held, and still holds, is, that a plaintiff free from all negligence may recover from a defendant who has failed to use such care as ordinarily prudent men generally employ; or, a plaintiff who is even guilty of slight negligence may recover of a defendant who has been grossly negligent, or whose conduct has been wanton or wilful. Hence the doctrine of comparative negligence."
In 1878, in the case of Indianapolis & St. Louis R.R. Co. v. Evans (1878), 88 Ill. 63, 65, the court adhered to the principles of Baches.
"`It is the duty of a railroad company to take all reasonable precaution for the protection of life and limb from injuries by their cars; and if such precautions are not taken, a person injured in consequence thereof * * * has a just cause of complaint, and is entitled to recover damages for any injury sustained by reason of the omission of the company to adopt all reasonable guards against liability to injury, unless such injury is caused by the negligence of the party injured equal to or greater than that of the party committing the injury.'
This seventh instruction, in substance, says, that plaintiff's action can not be defeated by his own negligence, unless such negligence be at least equal to that of defendant. This is not the law. The true rule on this subject is laid down in Illinois Central Railroad Co. v. Baches, Admr. 55 Ill. 379, and need not be further discussed here."
Thus developed the doctrine that the negligence of the plaintiff would not bar his recovery if it was "slight," in the sense of a "degree of negligence less than a failure to exercise ordinary care," while the negligence of the defendant was "gross" in comparison. (Wabash, St. Louis & Pacific Ry. Co. v. Moran (1883), 13 Ill. App. 72, 76.) No attempt was made to divide the damages under this "comparative negligence" rule, and where it was applied the effect was full recovery by the plaintiff. The injured person was required to show not only that his negligence was slight and that the defendant's negligence was gross, but also that they were so when compared with each other, since the element of comparison was the essence of the doctrine. Chicago, Milwaukee & St. Paul Ry. Co. v. Mason (1888), 27 Ill. App. 450, 453, 454.
During the next 27 years, the rule stated in Jacobs was followed and then abandoned by this court in Calumet Iron & Steel Co. v. Martin (1885), 115 Ill. 358, 368-69, and City of Lanark v. Dougherty (1894), 153 Ill. 163, 165-66, where it unequivocally made any contributory negligence on the part of the plaintiff a complete bar to recovery. Dean Green summarized the reasons for abandonment: the formula was not complete in that the "degrees of negligence" did not mitigate the damages which the plaintiff could recover; the "degrees of negligence" resulted in doctrinal conflict and confusion; and the Jacobs case had not overruled the Grimes case, so that, during the lifetime of the Jacobs decision, courts> of appeal could still rely upon the failure of the plaintiff to prove that he had exercised ordinary care in his own behalf before allowing recovery on a comparative negligence basis. Green, Illinois Negligence Law, 39 Ill. L. Rev. 36, 47-51 (1944).
Other jurisdictions found problems in the doctrine of contributory negligence. Criticism of the harshness of the doctrine came as swiftly as did its acceptance into the law, and courts> found exceptions to soften that harshness.
The first exception formulated to the rule of contributory negligence was that the negligence of the plaintiff was no defense when the defendant's conduct was "wilful," "wanton," or "reckless." (Prosser, Comparative Negligence, 41 Cal. L. Rev. 1, 5 (1953); Bradley v. Appalachian Power Co. (W. Va. 1979), 256 S.E.2d 879, 882; Hoffman v. Jones (Fla. 1973), 280 So.2d 431, 437; Kirby v. Larson (1977), 400 Mich. 585, 616, 256 N.W.2d 400, 415.) This rule, however, was found to be cumbersome and difficult to apply. Historically, it is of limited importance.
The second exception that developed was limited to cases involving a defendant's violation of a statute designed to protect the plaintiff even against his own improvident acts. Since only a minute number of cases involved such statutes, the exception did little to alleviate the plight of the negligent plaintiff. Prosser, Comparative Negligence, 41 Cal. L. Rev. 1, 5-6 (1953).
Greater relief was found in the creation of a third exception — "last clear chance" — which originated in the 1842 case of Davies v. Mann (1842), 10 M. & W. 546, 152 Eng. Rep. 588. In Davies, the defendant negligently ran into plaintiff's donkey, which plaintiff had left fettered in the highway. The court ruled that plaintiff's negligence in leaving the donkey in the road did not bar his claim for damages against defendant, since defendant had the "last clear chance" to avoid the accident. The basic concept resembles the effect of a superseding event nullifying the negligence of a plaintiff. Prosser, Comparative Negligence, 41 Cal. L. Rev. 1, 6-7 (1953).
The application of the third exception has by no means been uniform. Dean Prosser suggested that "[t]he real explanation would appear to be nothing more than a dislike for the defense of contributory negligence, and a rebellion against its application in a group of cases where its hardship is most apparent." (Prosser, Comparative Negligence, 41 Cal. L. Rev. 1, 7 (1953).) Illinois courts> have expressly found the doctrine of "last clear chance" not to be the law of the State. (Specht v. Chicago City Ry. Co. (1924), 233 Ill. App. 384. Contra, Moore v. Moss (1852), 14 Ill. 106.) Dean Prosser has stated that although the doctrine has been repudiated in this State, it is nonetheless employed without labeling. Prosser, Comparative Negligence, 41 Cal. L. Rev. 1, 8 (1953). See Walldren Express & Van Co. v. Krug (1920), 291 Ill. 472, 477, employing the phrase "conscious indifference to consequences."
Comparative negligence made its first permanent entry into American law in 1908 in the form of the Federal Employers' Liability Act (45 U.S.C. § 53). The Act applied to all negligence cases for injuries sustained by railroad employees engaged in interstate commerce, whether such cases were brought in a State or a Federal court. The concept of comparative negligence provided that the contributory negligence of the employee would not act as a bar to recovery, but that recovery would be diminished in proportion to the amount of negligence attributable to him. (Prosser, Comparative Negligence, 41 Cal. L. Rev. 1, 11-12 (1953); V. Schwartz, Comparative Negligence 11 (1974); H. Woods, The Negligence Case: Comparative Fault 24, 29 (1978).) The introduction of the Federal Employers' Liability Act was the catalyst for a flood of State statutes which established a comparative negligence standard for injuries to laborers, and, especially, for railroad employees. Prosser, Comparative Negligence, 41 Cal. L. Rev. 1, 12-13 (1953).
In 1920, Congress adopted comparative negligence for cases arising under the Jones Act (Act of June 5, 1920, ch. 250, sec. 33, 41 Stat. 1007, 46 U.S.C. § 688) and under the Death on the High Seas Act (Act of March 30, 1920, ch. 111, sec. 6, 41 Stat. 537, 46 U.S.C. § 766). See Prosser, Comparative Negligence, 41 Cal L. Rev. 1, 12 (1953); V. Schwartz, Comparative Negligence 11, (1974); H. Woods, The Negligence Case: Comparative Fault 52 (1978); Kaatz v. State (Alaska 1975), 540 P.2d 1037, 1047.
In 1910, Mississippi became the first State to adopt a comparative negligence statute applicable to negligence cases generally. (Miss. Code Ann. sec. 11-7-15 (1972).) The statute adopted the "pure" form of comparative negligence under which each responsible party would pay for the injuries sustained according to the relative percentage of his fault. Another form of comparative negligence was enacted by Wisconsin in 1931. (Wis. Stat. Ann. sec. 895.045 (West 1966).) This "modified" form allowed a negligent plaintiff to recover for his injuries only if his negligence was "not as great as that of the defendant."
Today, a total of 36 States have adopted comparative negligence. The following is a list of States which have adopted the doctrine, indicating its source and form.
(1) Alaska-Kaatz v. State (Alaska 1975), 540 P.2d 1037 (pure).
(2) Arkansas-Ark. Stat. Ann. secs. 27-1763 to 27-1765 (1979) (modified).
(3) California-Liv. Yellow Cab Co. (1975), 13 Cal.3d 804, 532 P.2d 1226, 119 Cal.Rptr. 858 (pure).
(4) Colorado-Colo. Rev. Stat. sec. 13-21-111 (1973 & Supp. 1978) (modified).
(5) Connecticut-Conn. Gen. Stat. Ann. sec. 52-572n (West Supp. 1980) (modified).
(6) Florida-Hoffman v. Jones (Fla. 1973), 280 So.2d 431 (pure).
(7) Georgia-Ga. Code Ann. sec. 105-603 (1968) (unique).
(8) Hawaii-Haw. Rev. Stat. sec. 663-31 (1976) (modified).
(9) Idaho-Idaho Code secs. 6-801, 6-802 (1979) (modified).
(10) Kansas-Kan. Stat. sec. 60-258a (1976) (modified).
(11) Louisiana-La. Civ. Code Ann. art. 2323 (eff. Aug. 1, 1980) (West 1981 Supp.) (pure).
(12) Maine-Me. Rev. Stat. tit. 14, sec. 156 (1980) (modified).
(13) Massachusetts-Mass. Gen. Laws Ann. ch. 231, sec. 85 (Supp. ...