Attorneys and Law Firms

Opinion

DENNIS, Justice.

This is a suit by a young woman against a school board for damages because of the severe emotional distress she sustained, without contemporaneous physical injury, when her automobile struck and killed a four year old school boy who darted into her path after the school board's bus driver and bus attendant discharged the boy from the bus, prematurely deactivated the bus warning devices and drove away, leaving the boy alone to cross the street to his home. The trial court held the school board liable for the emotional distress and subsequent physical and mental illnesses its employees negligently inflicted on the young woman but reduced her recovery by 30% because of her negligent failure to see the boy before he ran into the street. The court of appeal affirmed, Clomon v. Monroe City School Board, 557 So.2d 1100 (La.App. 2d Cir.1990), and this court granted certiorari to determine whether the decisions below were consistent with the bystander recovery rule announced in Lejeune v. Rayne Branch Hospital, 556 So.2d 559 (La.1990).

The deceased, Antonio Benjamin, was a four year old handicapped special education student who lived on Powell Avenue in Monroe. During the 1983 fall school term the Monroe City School Board provided him with school transportation in a mini-bus designated for handicapped children. Each school day Antonio was transported to and from his house under the care and supervision of the school bus operator and a special education attendant.

We see no error in the trial court's findings of fact based on conflicting testimony of witnesses to the accident: On the afternoon of the accident, the bus driver halted the bus opposite Antonio's house on Powell Avenue and engaged the bus warning lights and retractable stop signs. Powell Avenue at that point was a three lane thoroughfare, and the bus was stopped partially occupying the two lanes farthest from Antonio's house. The attendant exited the bus with Antonio, escorted him around the front of the bus, left him standing by the driver's side of the bus in the center lane, and reboarded the bus. The bus driver, who assumed that the attendant had seen Antonio safely across the street, disengaged the warning devices and started to drive away. Sonya Clomon, an eighteen year old college student, who was driving her parents' automobile, saw the school bus with its warning lights activated as she approached Powell Avenue on a side street about one quarter mile away. But when Sonya turned onto Powell Avenue and drove toward the bus at a lawful speed of 35 MPH, the bus warning lights and stop signs had been disengaged, and the bus began to pull away from its stop. Sonya did not see Antonio standing in the center lane by the driver's side of the bus. As her vehicle passed the front of the bus, she saw Antonio attempting to cross the street. Sonya braked and veered the car but it struck Antonio just before he reached the other side of the avenue. Antonio died later that day from injuries sustained in the accident.

Nor do we detect any misuse of discretion in the trial judge's assessment of Sonya's damages:

Plaintiff claims that, as a result of the accident, she has suffered severe emotional trauma which aggravated her diabetic condition and caused a post-traumatic stress disorder. Following the accident, she was admitted to the Glenwood Hospital for diabetic reaction triggered by the accident, and in the summer of 1984, she spent about twenty-one (21) days in Woodland Hills, undergoing treatment and therapy by her psychiatrist, Dr. Gene Moore.

The Court believes that the plaintiff's complaints about the emotional trauma *573 she suffered are real and genuine. Only a callous or stoic person would not be affected by this accident. Although time is a great healer of the mind, the trauma suffered by the plaintiff will long remain with her. The Court further believes that a considerable amount of her trauma was eliminated when the negligent homicide charge was reduced to a misdemeanor. [Sonya was charged with negligent homicide, arrested, booked and later released on bail on the night after the accident. Ultimately, she was permitted to plead nolo contendre to a charge of negligent operation and pay a fine of $150 for this offense on January 19, 1987.] For this type of injury, the Court finds $25,000 to be a fair award.

The trial court concluded that the bus driver, the attendant and Sonya were each guilty of negligent acts and omissions contributing to the accident. The court attributed 70% of the negligence to the school board employees, reduced Sonya's recovery by 30% to correspond with her portion of the fault, and entered judgment in her favor against the school board in the amount of $17,500. The Court of Appeal affirmed the judgment, finding no error of fact and concluding that the trial court's decision was consistent with the court of appeal's previous decision holding that Sonya's cause of action was valid. Clomon v. Monroe City School Board, 557 So.2d 1100 (La.App. 2d Cir.1990).

In its previous decision, the court of appeal reversed a trial court ruling by which the lower court had sustained the school board's exception of no cause of action. Clomon v. Monroe City School Board, 490 So.2d 691 (La.App. 2d Cir.1986). The court of appeal held that under the facts alleged in the petition, which were substantially the same as the plaintiff later proved at trial, a cause of action had been stated for negligently inflicted emotional distress damages, because the school board employees had violated a “direct and separate [statutory] duty owed by the board to the motorist to operate the warning signals on the school bus until the child departing the bus reaches a place of safety, which duty is correlative to the duty owed by the motorist to obey these signals.” Id. at 694. See La.R.S. 32:80. Further, the court of appeal held that the school board's policy imposing similar requirements on the bus driver and a separate obligation on the attendant to escort the child to a place of safety created a legal duty that “extends to protect not only the departing handicapped child, but, as well, the motorist who might strike the departing child if a breach of the duty of one or more employees of the board causes wholly or partly an accident between the motorist and the child, even though the motorist herself might be partially at fault in causing the accident.” Id.

Sonya's application for certiorari by this court was denied. Clomon v. Monroe City School Board, 563 So.2d 886 (La.1990). We granted the school board's application, Clomon v. Monroe City School Board, 563 So.2d 869 (La.1990), to decide whether a plaintiff in Sonya's position should be barred from recovering damages for her negligently inflicted emotional distress for any or all of the following reasons: she was not closely related to the deceased victim of the accident; she sustained only emotional distress damage without immediate physical injuries in the collision; and she was contributorily negligent in causing the accident. These are the only issues presented because the school board's application and argument here are restricted to them.

1. Whether the Bystander Recovery Rule Applies

Civil Code Article 2315, in pertinent part, provides: “Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it. * * * ” The fundamental civil law principle stated by this article has been a basic tenet of our law since 1808. See Art. 2315, La.C.C. Comp.Ed., in 17 West's LSA–C.C. p. 16 (1972). Although it is true that some exceptions have been made to the general principle that a person is liable for all damage caused by his fault, it is clear that in the absence of a statutory provision declaring an exception, or a compelling need for one to preserve the public interest, no such *574 exception should be recognized by the courts.

One exception created by this court to the principle of complete reparation was the rule that a plaintiff may not recover for his emotional distress caused by a defendant's negligent infliction of injury upon a third person—even if the third person was the plaintiff's child or other loved one. Black v. Carrollton R.R. Co., 10 La.Ann. 33 (1855). See, also, Kaufman v. Clark, 141 La. 316, 75 So. 65 (1917); Brinkman v. St. Landry Cotton Oil Co., 118 La. 835, 43 So. 458 (1907); Sperier v. Ott, 116 La. 1087, 41 So. 323 (1906). Although it is debatable whether this court ever advanced any compelling policy for the exception or its broad, amorphous nature, the rule proved quite durable and was not overruled until earlier this year by our decision in Lejeune v. Rayne Branch Hospital, 556 So.2d 559 (La.1990). In the Lejeune case this court held that a wife had a cause of action under Civil Code Article 2315 for her negligently inflicted emotional distress which she sustained upon entering her comatose husband's hospital room and discovering that he had been bitten by rats just prior to her arrival. Acknowledging the formidable problems that judges and juries face in distinguishing fraudulent and idiosyncratic claims from meritorious ones, this court deemed it necessary to impose admittedly “somewhat arbitrary”, Lejeune v. Rayne Branch Hospital, 556 So.2d 559, 569 (La.1990), restrictions on such claims in order to establish a “guaranty of merit against fraud” and other abuses. See 3 Harper, James and Gray, The Law of Torts 685 (2d ed. 1986); H. Smith, Relation of Emotions to Injury and Disease: Legal Liability for Psychic Stimuli, 30 Va.L.Rev. 193, 207 (1944). Thus, within the facts of the Lejeune case, this court concluded that mental pain and anguish claims arising out of injury to third persons are allowable, with these modifications and restrictions:

1. A claimant ... must, however, either view the accident or injury-causing event or come upon the accident scene soon thereafter and before substantial change has occurred in the victim's condition.

2. The direct victim of the traumatic injury must suffer such harm that it can reasonably be expected that one in the plaintiff's position would suffer serious mental anguish from the experience.

3. The emotional distress sustained must be both serious and reasonably foreseeable to allow recovery.

4. A fourth restriction concerns the relationship of the claimant and the direct victim. ... Regarding this fourth requirement, ... we leave for another day a decision whether recovery should be allowed only for close relatives (and, if so which ones), or rather, for those with simply a close relationship to the victim.

Lejeune v. Rayne Branch Hospital, 556 So.2d 559, 570–71 (La.1990).

These restrictions or indicia of merit were modeled on those developed by courts in California and other states in Dillon v. Legg, 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912 (1968) and its progeny. See, e.g., Thing v. Lachusa, 48 Cal.3d 644, 257 Cal.Rptr. 865, 771 P.2d 814 (1989); Champion v. Gray, 478 So.2d 17 (Fla.1985); Apache Ready Mix Co., Inc. v. Creed, 653 S.W.2d 79 (Tx.App.1983); Versland v. Carson Transport, 206 Mont. 313, 671 P.2d 583 (1983); Cohen v. McDonnel Douglas Corp., 389 Mass. 327, 450 N.E.2d 581 (1983); Sinn v. Burd, 486 Pa. 146, 404 A.2d 672 (1979); Gustafson v. Faris, 67 Mich.App. 363, 241 N.W.2d 208 (1976). Limitations of this type may be referred to very generally as “bystander recovery rules” because they are designed to permit recovery when a plaintiff closely related to the direct victim of an accident actually witnesses the injury as a bystander or comes upon the scene immediately afterward. For critical analyses of the bystander recovery development, see Pearson, Liability to Bystanders for Negligently Inflicted Emotional Harm—A Comment on the Nature of Arbitrary Rules, 34 U.Fla.L.Rev. 477 (1982); Comment, Dillon Revisited: Toward a Better Paradigm for Bystander Cases, 43 Ohio S.L.J. 931, 948 (1982); Note, Limiting Liability for the Negligent Infliction of Emotional Distress: The “Bystander Recovery” Cases, 54 S.Cal.L.Rev. 847 (1981); Dillon v. Legg Revisited: Toward a *575 Unified Theory of Compensating Bystanders and Relatives for Intangible Injuries, 35 Hastings L.J. 477 (1984).

Prior to the advent of the bystander recovery rule the common law courts had resorted to other “somewhat arbitrary” limits to claims for negligently inflicted emotional distress. The two main restrictions were the “impact” and “zone of danger” rules. The latter is still adhered to by many courts which have thus far rejected the bystander recovery rule. Prosser & Keeton, The Law of Torts § 54, p. 366 (5th ed. 1984). See, e.g., Tobin v. Grossman, 24 N.Y.2d 609, 301 N.Y.S.2d 554, 249 N.E.2d 419 (1969); Rickey v. Chicago Transit Authority, 101 Ill.App.3d 439, 57 Ill.Dec. 46, 428 N.E.2d 596 (1981); Shelton v. Russell Pipe & Foundry Co., 570 S.W.2d 861 (Tenn.1978). Under the “impact” rule, the plaintiff in order to recover for negligently inflicted emotional distress without immediate physical injury was required to prove that the tortfeasor's conduct caused some “impact” upon the person of the plaintiff. Prosser & Keeton, The Law of Torts § 54, p. 363 (5th ed. 1984). See, e.g., Cadillac Motor Car Division v. Brown, 428 So.2d 301 (Fla.App.1983); Deutsch v. Shein, 597 S.W.2d 141 (Ky.1980); Howard v. Bloodworth, 137 Ga.App. 478, 224 S.E.2d 122 (1976). The English and many American courts later adopted the “zone of danger” approach under which a plaintiff may recover for her emotional distress at the injury to her child if the plaintiff herself is threatened with physical injury by the defendant's negligence. Prosser & Keeton, The Law of Torts § 54 p. 365 (5th ed. 1984). See, e.g., Hambrook v. Stokes Brothers, 1 K.B. 141 (1925); Stadler v. Cross, 295 N.W.2d 552 (Minn.1980); Keck v. Jackson, 122 Ariz. 114, 593 P.2d 668 (1979); Vaillancourt v. Medical Center Hospital, 139 Vt. 138, 425 A.2d 92 (1980). Apparently, some courts believed, at least for a time, that satisfaction of the impact or zone of danger rule provided some necessary assurance or guaranty that the courts would not become besieged by claims that were feigned or born out of hypersensitivity.

1

In the present case, the defendant school board argues that Sonya's emotional distress does not qualify her for recovery under the Lejeune administrative strictures. The defendant forthrightly concedes that in all likelihood Sonya's proof satisfied three of the four bystander recovery restrictions, viz., that she was a percipient witness to the accident and the direct victim's injury; that the direct victim's injury reasonably could be expected to cause another to suffer serious mental anguish; and that the witness' emotional distress was serious. But the school board contends that Sonya's case fails to satisfy the fourth bystander recovery requisite, i.e., that the claimant had a close relationship with the direct victim.

We agree that Sonya cannot succeed under Lejeune's bystander recovery rule because she did not have a close relationship with the direct victim as required by the rule.. However, Lejeune does not govern every class of claim for emotional damage due to third party injury. Lejeune addressed only the most typical class, a suit by a plaintiff emotionally distressed by his loved one's injury against a tortfeasor based purely on a breach of the latter's general duty of due care. In formulating rules to establish a guaranty of merit for this broad class of claims, the Lejeune court did not intend to modify or interrupt the development of rules or decisions permitting recovery for emotional distress from a tortfeasor who owed the plaintiff a special, direct duty created by law, contract or special relationship. In fact, the court noted with evident approval a number of court of appeal decisions recognizing such an “independent duty owed to an aggrieved non-traumatically injured plaintiff.” Lejeune v. Rayne Branch Hospital, 556 So.2d at 567; citing Bishop v. Callais, 533 So.2d 121 (La.App. 4th Cir.1988), writ denied, 536 So.2d 1214 (La.1989) (Parents stated a cause of action for mental anguish damages because of injuries inflicted upon their minor child while confined in a psychiatric hospital, and that the hospital may owe a duty to the parents.); Skorlich v. East Jefferson Gen. Hosp., 478 So.2d 916 (La.App. 5th Cir.1985) (Physician owed a *576 duty to father and mother not to negligently injure the child during the birth process. Presumably, the court found that the father would suffer mental anguish from any possible injury to the child.); Holland v. St. Paul Mercury Ins. Co., 135 So.2d 145 (La.App. 1st Cir.1961) (Exterminating company owed an independent contractual duty to the parents, separate from the duty owed to their son who allegedly ingested rat poison.); Jordan v. Fidelity & Casualty Co., 90 So.2d 531 (La.App. 2d Cir.1956) (Negligent driver's breach of duty resulted in liability to other driver for mental distress arising out of concern over possible injury to unborn child where that driver's pregnant wife was riding in car at time of collision.); Champagne v. Hearty, 76 So.2d 453 (La.App.Orl.1955) (Landlord's duty to maintain property in a safe condition resulted in liability to pregnant tenant for mental anguish caused by fear that fetus was injured when ceiling plaster fell onto tenant.); Valence v. Louisiana Power & Light Co., 50 So.2d 847 (La.App.Orl.1951) (Bus driver's negligence in running into ditch made carrier liable to pregnant passenger and her husband for the mental anguish they suffered as a result of feared injury to fetus.). Moreover, this court in Lejeune expressly relied on its prior decision in Pitre v. Opelousas Gen. Hosp., 530 So.2d 1151 (La 1988) as presaging the overruling of Black v. Carrollton R.R. Co., 10 La.Ann. 33 (1855), and as “[r]ecognizing the physician's duty to the parents to act reasonably so as to avoid acts or omissions which might foreseeably lead to the birth of a child (in a case where the doctor had undertaken a procedure to sterilize the mother) [and holding that] the parents had stated a cause of action for their emotional and mental distress associated with the birth of their ‘unplanned and unwanted’ child, since these were foreseeable consequences of the alleged negligence.” Lejeune v. Rayne Branch Hospital, 556 So.2d at 568.

Finally, Lejeune clearly recognized in expounding the fundamental principle of Civil Code Article 2315 that this basic precept favors the full reparation of wrongfully injured persons, Lejeune v. Rayne Branch Hospital, 556 So.2d at 568; that in formulating each delictual duty the social, moral and economic factors and other policy considerations pertinent under the particular circumstances must be weighed, Id.; and that “[m]oving from a jurisprudential situation where no claims have been allowed for mental pain and anguish relative to injury to third parties, to one in which some but not all claims will be allowed, of necessity requires some line drawing at the outset.” Id. at 569.

Consequently, we conclude that this court is not precedentially bound to apply mechanistically the damage limitation rules of Lejeune to the present case. Instead, this case calls on us to employ familiar methodology in examining a statutory standard of conduct to decide whether it prescribes a direct, special duty to the plaintiff to compensate her for negligently inflicted emotional distress. Further, the delictual duty here involves a narrower category of potential claims with respect to which we must weigh a different mixture of empirical factors to determine whether the principle of full reparation should be applied without stint or cabined by prophylactic limitations.

2. Whether the Statute Prescribes a Duty to Repair Emotional Distress Damages

2

To determine whether Sonya established that the school board employees owed her a special, direct duty that they breached, entitling her to recover emotional distress damages caused by the violations, we follow a method similar to that of determining whether a defendant may be held liable in a negligence case on the basis of his violation of a statute. The bases for delictual liability relied upon by Sonya are the fault of the defendant's special education attendant in failing to escort or to see Antonio safely across the street and the fault of the defendant's bus driver in failing to comply with the statute governing the receiving and discharging of children from school buses. In this review we focus on the fault of the bus driver because it stems from the breach of a statutory duty which clearly was owed to a motorist *577 in Sonya's position. It is not necessary to analyze the attendant's duty to determine whether it encompassed a special, direct duty owed to the motorist. Under La.R.S. 32:80 the bus driver has a direct, non-delegable duty to protect the child and the motorist in this situation. The bus driver cannot rely on the attendant in the performance of his legal duties to protect children and motorists. The actions and omissions of the bus driver alone justify the assessment of 70% of the negligence in this case to the school board.

The statute governing receiving and discharging children from school buses, La.R.S. 32:80, provides that a school bus driver must activate the bus's alternately flashing signal lights whenever he stops or is about to stop on the highway for the purpose of receiving or discharging children. La.R.S. 32:80(B)(1) and (2). The driver of a vehicle on a highway approaching a school bus that has stopped to receive or discharge school children must stop his vehicle not less than thirty feet from the school bus when its signal lights are flashing and not proceed until its signals are off or the bus resumes its trip. La.R.S. 32:80(A)(1). Any motorist convicted of violating this law shall be subject to a fine or imprisonment, or both. La.R.S. 32:80(A)(4). A school bus driver is authorized to notify law officials of a violation of this law, and a citation may be issued on the basis of such notice to the owner or lessee of a vehicle involved in a violation. La.R.S. 32:80(A)(3).

The process by which a child crosses an open highway to board or disembark from a school bus is charged with danger. Accordingly, the legislature has enacted the most stringent provisions feasible to safeguard the entire operation. The child, the bus driver and the motorist are constituents of this process, bound together legally and practically in a special, exigent relationship, from the moment the bus stops and signals until the child is safely across the roadway. See Westerfield v. LaFleur, 493 So.2d 600, 605 (1986). If the school bus driver and the motorist perform their duties properly, a child who crosses a typical roadway while leaving or entering an immobile signalized school bus is guarded from harm by a legal cordon during the entire time he is traversing the roadway. He and his parents are entitled to rely for his safe passage upon the motorist's observance of the safety zone and the bus driver's performance of his duty to activate highly visible signals, await the child's safe passage and report any motorist's violation of the legally protected passageway. The injury or death of a child during the protected receiving or discharge procedure can result in severe consequences for even an innocent motorist including criminal prosecution, civil damage suits, and moral opprobrium. Id.

3

4

It is clear that the bus driver in the present case violated her duties to await the safe passage of the child and to refrain from prematurely deactivating the signals or resuming her trip. It is equally apparent that the busperson's breach of the statutory duty caused the damage. Sonya is entitled to the presumption that she would have heeded a proper warning, and there is nothing in the record to indicate that she would have failed to do so. Bloxom v. Bloxom, 512 So.2d 839, 850 (La.1987); Vickers v. Chiles Drilling Co., 882 F.2d 158 (5th Cir.1989). In determining whether the bus driver's violation was a breach of a delictual duty owed specially and directly to Sonya it is necessary to examine the purposes of the legislation and decide (1) whether Sonya falls within the class of persons it was intended to protect and (2) whether the harm complained of was of the kind which the statute was intended, in general, to prevent. See Carter v. City Parish Government of East Baton Rouge, 423 So.2d 1080 (La.1982); Boyer v. Johnson, 360 So.2d 1164 (La.1978); Prosser & Keeton, supra § 36 at 225.

Having examined the provisions of the statute, we conclude that by vesting the bus driver with authority similar to that of a policeman to direct the motorist's use of the highway under pain of criminal penalty the legislature has also imposed upon the bus driver the duty to perform his role properly for the benefit of the motorist. *578 Consequently, the motorist is required and entitled to rely for his safety, convenience and peace of mind upon the bus driver's performance of his duty to activate highly visible signals, await the child's safe passage and remain as a stationary sentinel until the child's security is clearly assured. It is obvious that the bus driver's dereliction may result in minimal to extreme consequences for the motorist including his fright at a near miss, his own physical injury or property damage, or his serious emotional and mental illness associated with a child's injury or death, as in the present case. Moreover, it is evident that the bus driver's duty is owed not only to the careful motorist but also to the inattentive driver who may have relied on the busman's signals or lack thereof. Although the bus driver's duty is not imposed to protect the utterly indifferent or foolhardy, its protection is not restricted to those whose senses are precisely attuned to the prospect of the particular danger encountered. The evidence does not indicate that Sonya would have been oblivious to the flashing signals had they been activated or to the motionlessness of the bus had it remained stationary. On the contrary, there is every reason to believe that if such warnings had been given, Antonio's tragic death would have been avoided as well as Sonya's emotional distress and illness. See Levi v. SLEMCO, 542 So.2d 1081, 1089 (La.1989); Malone, Cause In Fact, 9 Stanford L.Rev. (1956).

By the same token, we believe that the harm that befell Sonya was within the class of harms that the statute was intended to guard against. Cf. Carter v. City Parish Government of East Baton Rouge, 423 So.2d 1080 (La.1983). The accident resulted from exactly the kind of risk which the statute was designed to prevent. Cf. Boyer v. Johnson, 360 So.2d 1164 (La.1978); Smolinski v. Taulli, 276 So.2d 286 (La.1973). Sonya's damage was included within the same general risk, or class of risk, at which the statute is directed. In the absence or any other guide in the legislation itself, a statute may well be assumed to include all risks that reasonably may be anticipated as likely to follow from its violation. Prosser & Keeton, supra § 36 at 226–27 n. 65, 66. It is reasonable to expect that a motorist who unexpectedly encounters a small child in the roadway after a school bus has extinguished its warning lights and has departed may become involved in various types of accidents. It is also predictable that some of these mishaps will foreseeably lead to either physical or emotional trauma, or both, for the motorist involved. For all of these reasons, and because the motorist is placed in a position of reliance by the law and the acts or omissions of the school bus driver, it would not be just to deny the motorist recovery for any damage attributable to the bus driver's negligence.

Moreover, in this type of case the plaintiff-motorist usually will be a percipient witness to the injury, and her claim of serious emotional distress can be considered in light of the objective circumstances of the accident and injury absent the complicating factor of any personal relationship with the direct victim. Consequently, we conclude that in the narrow class of cases involving the direct, special statutory duty owed to the motorist, there is no justification for the creation of juristic limitations upon the principle of reparation underlying Civil Code Article 2315. Accordingly, Sonya should be permitted to recover for her severe emotional distress and other consequent injuries that were found to be genuine by each lower court and conceded to be proven by the defendant.

3. Whether Recovery is Barred by Sonya's Contributory Negligence

5

Civil Code Article 2323 (1980) provides: “When contributory negligence is applicable to a claim for damages, its effect shall be as follows: If a person suffers injury, death or loss as the result partly of his own negligence and partly as a result of the fault of another person or persons, the claim for damages shall not thereby be defeated, but the amount of damages recoverable shall be reduced in proportion to the degree or percentage of negligence attributable to the person suffering the injury, death or loss.” In view of the clear *579 mandate of Civil Code Article 2323 (1980), there is no basis in law for barring rather than reducing Sonya's recovery. Under the circumstances of this case, barring Sonya's recovery would be tantamount either to resurrecting the legislatively abrogated doctrine of contributory negligence or to concluding that the bus driver owed Sonya no duty, a proposition which we must reject for the reasons advanced above.

DECREE

The judgments of the trial court and the court of appeal in favor of plaintiff Sonya Clomon and against the defendant the Monroe City School Board are affirmed at relator's cost.

AFFIRMED.

WATSON, J., concurs and assigns reasons.

HALL, J., joins in the opinion and adds concurring reasons.

MARCUS, J., dissents and assigns reasons.

COLE, J., dissents and assigns reasons.

Dissent

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MARCUS, Justice (dissenting).

I dissent from the recognition of a duty owed to a person who has suffered mental anguish but has not sustained physical injury. In any event, I do not believe that the bus driver breached a duty to plaintiff under the circumstances of this case. Accordingly, I respectfully dissent.

Dissent

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*580 COLE, Justice, dissenting.

I respectfully dissent. The issue addressed by this Court in Lejeune v. Rayne Branch Hosp., 556 So.2d 559 (La.1990), was whether a defendant owes a duty to protect a plaintiff from mental anguish occasioned by the negligent infliction of injury to a third person. We there held such a duty exists under limited circumstances and specifically delineated those circumstances. Because plaintiff in this case did not bear a close relationship with the victim of the accident, I would reverse the Court of Appeal and dismiss plaintiff's claim.

The substantive issue presented in this case is whether plaintiff may recover for mental anguish occasioned by the physical injury and subsequent death of Antonio Benjamin, who was in no way related to plaintiff. This issue is much the same as the issue presented in Lejeune and I fail to see why the majority declines to address the issue within the parameters set forth in Lejeune. In declining to apply Lejeune, the majority relies on two premises. First, the majority asserts it is not “precedentially bound to apply mechanistically the damage limitation rules of Lejeune ” because that case dealt only with the breach of a general duty of care, not the breach of a “special, direct duty created by law....” Second, the majority declares that La.R.S. 32:80, a statute which is directed toward the protection of children, contains a “special, direct duty” which is owed to all motorists, and which encompasses the mental anguish suffered by plaintiff. For the following reasons, I believe each premise is erroneous.

I.

First of all, I believe the majority's statement that Lejeune was not meant to govern every class of claim for emotional distress resulting from injury to a third person is dubious. When the Court of Appeal addressed the Lejeune case, it defined the issue as follows: “[d]oes Louisiana now recognize a cause of action for mental distress experienced by a claimant resulting from injury sustained by a third person?” Lejeune v. Rayne Branch Hosp., 539 So.2d 849, 850 (La.App. 3rd Cir.1989). We granted writs in that case, 541 So.2d 861 (La.1990), to review the jurisprudence that had developed since Black v. Carrollton Railroad, 10 La.Ann. 33 (1855), and to determine “just what limits should be established on the availability of a cause of action for mental pain and anguish damages because of physical injury to a third party.” 556 So.2d at 569. Prior to delineating the limits on the cause of action, we specifically recognized that we wanted to avoid having the law in this area developed in an ad hoc manner by the lower courts. We stated:

Just as many other states have done, we find need to move restrictively in this area. It is for this reason that we are not inclined to rely simply on general principles of duty and negligence. Administrative boundaries or guidelines imposed jurisprudentially at the outset will facilitate application by the lower courts, ensure that there is no open-ended exposure of tortfeasors, and ensure as well that a policy of limited exposure to serious mental pain and anguish damages sustained by a limited class of claimants will be permitted.

* * * * * *

Accordingly, we will determine in this case what guidelines should control the allowance of recovery, focusing on whether the plaintiff must observe the injury causing event, the type of injury suffered by the victim, the severity of the plaintiff's mental pain and anguish, and the character of the relationship between the victim and the plaintiff.

556 So.2d at 569. By holding that the carefully drawn guidelines of Lejeune are not applicable in any case in which a court can find a “special, direct” duty owed to the plaintiff, the majority has done precisely what the majority in Lejeune deemed it unwise to do: it has recognized an enormous class of cases¹ in which the lower courts may award damages for emotional *581 distress caused by third party injury on an ad hoc basis.

To support its statement that Lejeune was not intended to apply to the facts of this case, the majority cites numerous cases mentioned by the Court in Lejeune with “evident approval.” According to the majority, these cases recognize recovery of emotional distress damages arising from injury to a third party when there is an independent duty owed to an aggrieved, non-traumatically injured plaintiff. However, I believe these cases were cited in Lejeune merely as a review of the development of the “maverick cases” which had refused to apply the rule of Black v. Carrollton Railroad, supra. I do not believe the citation was intended to carve out a subcategory of cases which would not be subject to the rules that were later enunciated in Lejeune. To the contrary, the cases cited fit squarely within the parameters we developed in Lejeune. I think it is quite pertinent to note that every one of these “maverick” cases involves a plaintiff who bore a close relationship with the person who was directly injured by the defendant. Bishop v. Callais, 533 So.2d 121 (La.App. 4th Cir.1988), (parent-child relationship); Skorlich v. East Jefferson Gen. Hosp., 478 So.2d 916 (La.App. 5th Cir.1985), (parent-child relationship); Holland v. St. Paul Mercury Ins. Co., 135 So.2d 145 (La.App. 1st Cir.1961), (parent-child relationship); Jordan v. Fidelity & Casualty Co., 90 So.2d 531 (La.App. 2nd Cir.1956), (parent-unborn child relationship); Champagne v. Hearty, 76 So.2d 453 (La.App.Orl.1955), (mother-unborn child relationship); Valence v. Louisiana Power & Light Co., 50 So.2d 847 (La.App.Orl.1951), (parent-unborn child relationship). It does not seem to me that prior cases which allowed recovery for mental anguish for injury to a closely related person may be cited to justify the non-application of the close relationship requirement of Lejeune.

II.

The second premise used by the majority to support its argument that Lejeune is inapplicable is likewise disturbing. The majority contends La.R.S. 32:80 creates a “special, direct duty” owed to all motorists. However, I believe R.S. 32:80 is plainly directed toward the protection of children who ride school buses, and not toward the protection of motorists.

When a rule of law upon which a plaintiff relies for imposing a duty is based upon a statute, this Court must interpret the legislative intent as to the risk contemplated by the legal duty created in the statute to determine whether the statute actually creates a duty which is owed to the plaintiff. Hill v. Lundin, 260 La. 542, 256 So.2d 620 (1972). Seldom does a statute protect every person against every risk that may befall him merely because it is shown that the violation of the statute played a part in producing the injury. 256 So.2d at 623. Applying this principle to the facts of this case leads me to conclude that R.S. 32:80 does not create a duty which is owed to plaintiff. Rather, R.S. 32:80 is designed to protect children who ride school buses. It sets forth various procedures which a bus driver must follow when he stops to pick up or unload children. Although the statute authorizes (indeed requires) the bus driver to use the electronic stop signs and flashing lights to stop traffic, this authority is given so as to protect the children who must cross a street when entering or exiting the bus. There is absolutely nothing in the language of the statute, its legislative history, or the jurisprudence interpreting it suggesting it creates any duty directly owed to oncoming motorists, much less a “special, direct duty.”

Additionally, R.S. 32:80 is but one of a myriad of traffic regulations contained in the Louisiana Highway Regulatory Act, La.R.S. 32:1–32:399. Most of the regulations contained in the Act are directed toward the protection of a particular class of persons.² Despite the fact that the vast *582 majority of the Highway Regulation Act statutes are directed toward narrow classes of persons, each could be interpreted broadly, as the majority has done to R.S. 32:80, to be directed to all motorists. Are we then to conclude each of these statutes creates a “special, direct” duty to motorists such that emotional distress damages caused by third party injury are available? If so, are not our courts now at the mercy of creative attorneys who have at their disposal literally hundreds of regulatory statutes³ through which they may forage to find “special, direct” duties? If not, what guidelines are the lower courts to use to determine when a regulatory statute creates a “special, direct” duty?

A few examples may help illustrate the potential problems created by the majority's ruling. R.S. 32:193–32:197 provide various rules by which bicycle riders must abide. Suppose a cyclist, who is under 18 years of age, is killed when an automobile strikes him. Suppose further that the cyclist was riding his bike on the wrong side of the road and did not have proper reflectors on his bike, in violation of the statutes. The automobile driver is found to have been 50% at fault for failing to keep a proper lookout, and the cyclist is found to have been 50% at fault for operating the bicycle in violation of the statutes. May the automobile driver recover from the cyclist's grieving parents for mental anguish caused by the cyclist's negligence? Similarly, in the above example, suppose the cyclist was riding a motorcycle without a helmet, in violation of R.S. 32:190. Suppose further he was killed in an accident with a motorist, who was 95% at fault. If the motorist can prove that the motorcyclist would not have died but for his failure to wear a helmet, and that he suffered grave mental anguish for having killed the motorcyclist, may the motorist recover for his mental anguish? Suppose under the facts of the instant case, plaintiff was found to have been under the influence of alcohol at the time of the accident and was apportioned 80% at fault, may she still recover for her mental anguish? Lastly, if the testimony in today's case had indicated plaintiff suffered mental anguish both because of her having killed the child and because she witnessed his physical injuries at the scene of the accident, would plaintiff be limited to recovering only for that distress associated with the grief caused by having killed the child? If the answer to this last question is no, we have created a situation in which a person who suffers serious mental anguish by witnessing a gruesome and traumatic injury to a stranger may not recover for his mental anguish⁴ while the person whose fault was a substantial cause of the accident may recover. If the answer is yes, we have placed upon triers of fact a very difficult, perhaps impossible, burden: the burden of distinguishing between, and placing values upon, different types of mental anguish.

I am certain that what has been done by the majority significantly undercuts the primary objective of Lejeune, which was to impose practical guidelines for the lower courts which will “ensure that there is no open-ended exposure of tortfeasors, and ensure as well that a policy of limited exposure to serious mental pain and anguish damages sustained by a limited class of claimants will be permitted.” (emphasis added). I recognize there is a distinction in the way plaintiff characterized her mental anguish in this case and the characterization of the plaintiff's mental anguish in Lejeune. (See, Hall, J., concurring, supra). Nevertheless, I believe the damages claimed in each case are of sufficient similarity to render the prudential considerations involved in Lejeune applicable to this case. The contrary view adopted by the majority in this case is at odds with Lejeune and I sincerely believe opens the floodgates of litigation. While I respect the views of my brethren in the majority, I suggest this Court should stem the tide. I *583 would reverse the Court of Appeal and dismiss plaintiff's claim.

DENNIS, Justice, assigning additional reasons in support of the majority opinion.

Torts scholars should recognize the longer of the two dissenting opinions as an extremely narrow interpretation of prior decisions by this court and the courts of appeal. Other readers, however, may be misled by the dissenting opinion's use of partial quotations and arguments that do not take into account the total environment and historical development of the law of damages. Accordingly, I think a brief reply should be made in order to aid in placing the dissenting opinion's legal analyses in perspective.

In the dissent's view, liability for negligently inflicted emotional distress must be confined exclusively to cases falling within the recently developed bystander recovery rule. But other judges and scholars have recognized that “liability for negligently inflicted psychic harm has typically (but not invariably) arisen in two contexts, which sometimes overlap to form a third.” Harper, James & Gray, The Law of Torts, Vol. 3 § 18.4, p. 688–89 (1986) (Footnotes omitted). First, is the case in which plaintiff narrowly escapes physical injury, the threat of which causes serious alarm and consequent psychic or physical injury or both. Harper, James & Gray, supra at 689; Restatement (Second) of Torts § 436(1) & (2) (1965); Comment, Negligent Infliction of Emotional Distress: Reconciling the Bystander and Direct Victim Causes of Action, 18 U.S.F.L.Rev. 145, 161 (1983); Minzer, Nates, Kimball, Axelrod & Goldstien, Damages in Tort Actions, Vol. 1, §§ 5.10–5.14 (1990). The second typical case has to do with shock to bystanders, e.g., the mother (for instance) who witnesses her child being killed or injured by the negligent defendant. Harper, James, and Gray, supra at p. 689; Restatement (Second) of Torts § 436(3) (1965); Comment, Dillon Revisited: Toward a Better Paradigm for Bystander Cases, 43 Ohio St.L.J. 931 (1982). Comment, Limiting Liability for the Negligent Infliction of Emotional Distress: The “Bystander Recovery” Cases, 54 U.S.C.L.Rev. 847 (1981); Minzer, Nates, Kimball, Axelrod & Goldstien, Damages in Tort Actions, Vol. 1, §§ 5.20–5.25 (1990). These two categories may overlap, where the person who is not hit physically, but is shocked to witness the injury or death of a companion, could have been hit physically. See Harper, James and Gray, supra at p. 690 and authorities cited therein.

Also, a number of smaller special categories have been recognized, as exceptions to the three typical cases, in which recovery for emotional disturbance has been allowed. A number of courts, including this court, have allowed recovery against a telegraph company for the negligent transmission of a message, especially one announcing death, indicating on its face a potential for mental distress. See, e.g., Graham v. Western Union Telegraph Co., 109 La. 1069, 34 So. 91 (1903); Russ v. Western Union Telegraph Co., 222 N.C. 504, 23 S.E.2d 681 (1943); Western Union Telegraph Co. v. Redding, 100 Fla. 495, 129 So. 743 (1930). Courts in this state and others have allowed similar recovery for the mishandling of corpses. See, e.g., Fortuna v. St. Bernard Memorial Gardens, 529 So.2d 883 (La.App. 4th Cir.1988); Shelmire v. Linton, 343 So.2d 301 (La.App. 1st Cir.1977); French v. Ochsner Clinic, 200 So.2d 371 (La.App. 4th Cir.1967); Blanchard v. Brawley, 75 So.2d 891 (La.App. 1st Cir.1954); Clark v. Smith, 494 S.W.2d 192 (Tex.Civ.App.1973); Allen v. Jones, 104 Cal.App.3d 207, 163 Cal.Rptr. 445 (1980); Torres v. State, 34 Misc.2d 488, 228 N.Y.S.2d 1005 (1962). There have been other exceptional cases, but all of them have in common the especial likelihood of genuine and serious mental distress, arising from the special circumstances, which serves as a guarantee that the claim is not spurious. See Prosser & Keeton, The Law of Torts § 54, p. 362 (5th ed. 1984) and authorities cited at n. 32; See, also, Harper, James and Gray, The Law of Torts § 18.4 at n. 19.

Indeed, the evolving view is toward the recognition of a duty imposed on the defendant to refrain from the negligent infliction of serious emotional distress in special circumstances *584 where the mental anguish is the clearly foreseeable result or when a special relationship exists between the defendant and the plaintiff. According to some authorities, some of the best known, but by no means the only, examples involve wrongdoing on the part of common carriers, the tele-communications industry and persons involved in the handling of dead bodies. Minzer, Nates, Kimball, Axelrod and Goldstien, Damages in Tort Actions, Vol. 1 § 5.12 (1990). See, also, Gray v. Superior Court, 181 Cal.App.3d 813, 226 Cal.Rptr. 570 (1986); Molien v. Kaiser Foundations Hospitals, 27 Cal.3d 916, 167 Cal.Rptr. 831, 616 P.2d 813 (1980); Berman v. Allen, 80 N.J. 421, 404 A.2d 8 (1979); Vattimo v. Lower Bucks Hospital, Inc., 59 Pa.Cmwlth. 1, 428 A.2d 765 (1981); Naccash v. Burger, 223 Va. 406, 290 S.E.2d 825 (1982); Johnson v. State, 37 N.Y.2d 378, 372 N.Y.S.2d 638, 334 N.E.2d 590 (1975); Rodrigues v. State, 52 Hawaii 156, 472 P.2d 509 (1970). c.f. Restatement (Second) of Torts § 314(A) (1965).

In Louisiana jurisprudence, the state and federal courts of appeal have developed, as an exception to the “no duty” rule of Black v. Carrollton R.R. Co., 10 La.Ann. 33 (1855), a well established rationale that a plaintiff may recover for his mental anguish resulting from another's injuries when the anguish is in fact caused by the breach of a primary and independent legal or contractual duty which is owed directly to the aggrieved plaintiff. L.P. v. Oubre, 547 So.2d 1320 (La.App. 5th Cir.1989) writ denied, 550 So.2d 634 (La.1989); Bishop v. Callais, 533 So.2d 121 (La.App. 4th Cir.1988) writ denied, 536 So.2d 1214 (La.1989); Mesa v. Burke, 506 So.2d 121 (La.App. 5th Cir.1987) writ denied, 506 So.2d 1226 (La.1987); Skorlich v. East Jefferson Gen. Hosp., 478 So.2d 916 (La.App. 5th Cir.1985); Rodriguez v. Traylor, 461 So.2d 413 (La.App. 4th Cir.1984) rev'd on other grounds, 468 So.2d 1186 (La.1985); Blackwell v. Oser, 436 So.2d 1293 (La.App. 4th Cir.1983) writ denied, 442 So.2d 453 (La.1983); Spencer v. Terebelo, 373 So.2d 200 (La.App. 4th Cir.1979) writ denied, 376 So.2d 960 (La.1979); Holland v. St. Paul Mercury Ins. Co., 135 So.2d 145 (La.App. 1st Cir.1961); Jordan v. Fidelity & Casualty Co., 90 So.2d 531 (La.App. 2d Cir.1956); Champagne v. Hearty, 76 So.2d 453 (La.App.Orl.Cir.1955); Valence v. Louisiana Power & Light Co., 50 So.2d 847 (La.App.Orl.Cir.1951); LeConte v. Pan American World Airways, Inc., 736 F.2d 1019 (5th Cir.1984); Turgeau v. Pan American World Airways, 764 F.2d 1084 (5th Cir.1985). In Lejeune this court recognized and approved this line of cases as being based on a rationale independent of the one under which a plaintiff seeks to recover solely because of his anguish over the injury to a third person, viz., the rationale of the bystander type case. Lejeune v. Rayne Branch Hospital, 556 So.2d 559, 567 (La.1990) (“[I]n a few exceptional Louisiana cases the courts of appeal have been able to ferret out an independent duty owed to an aggrieved non-traumatically injured plaintiff.”). The Lejeune court did not attempt to subsume this line of cases under the bystander recovery rule. Indeed, many of the independent duty cases simply will not fit within the bystander recovery rule. For example, the parents in Bishop v. Callais, supra, and L.P. v. Oubre, supra, were not percipient witnesses to the molestation of their children which caused the mental distress for which they received an award of damages. Likewise, the husband in Valence v. L.P. & L, supra, recieved damages for mental distress caused by fear of injury to his unborn child despite the fact that he was not present when the bus carrying his pregnant wife ran off the road and into a ditch. More important, none of the courts in those cases relied on a bystander rule, but instead found that the defendant breached an independent, direct duty owed to the plaintiff.

Furthermore, the Lejeune court did not indicate any intention to overrule or modify the sizeable body of state and federal court of appeal decisions under which plaintiffs, who suffer no physical harm contemporaneous with the actionable act or omission, may recover for mental anguish resulting from fear or fright over the plaintiff's own well being or from the damage to the plaintiff's property in view. See, e.g., *585 Hymel v. Tom Alexander Brokerage Co., 348 So.2d 104 (La.App. 4th Cir.1977) writ denied sub nom. Jacob v. Tom Alexander Brokerage Co., 350 So.2d 894 (La.1977); Rezza v. Cziffer, 186 So.2d 174 (La.App. 4th Cir.1966); Speight v. Southern Farm Bureau Ins. Co., 254 So.2d 485 (La.App. 3rd Cir.1971); Hoffman v. All Star Ins. Co., 288 So.2d 388 (La.App. 4th Cir.1974) writ denied, 290 So.2d 909 (La.1974); Butler v. Pardue, 415 So.2d 249 (La.App. 2d Cir.1982); Chappetta v. Bowman Transportation, Inc., 415 So.2d 1019 (La.App. 4th Cir.1982); Dawson v. James H. Stuart & Deaton, Inc., 437 So.2d 974 (La.App. 4th Cir.1983); Farr v. Johnson, 308 So.2d 884 (La.App. 2d Cir.1975); Meshell v. Ins. Co. of North America, 416 So.2d 1383 (La.App. 3rd Cir.1982); Carroll v. State Farm Ins. Co., 427 So.2d 24 (La.App. 3rd Cir.1983); Stewart v. Arkansas Southern R. Co., 112 La. 764, 36 So. 676 (1904); Lewis v. Holmes, 109 La. 1030, 34 So. 66 (1903); Laird v. Natchitoches Oil Mill, 10 La.App. 191, 120 So. 692 (La.App. 2d Cir.1929); Klien v. Medical Bldg. Realty Co., 147 So. 122 (La.App.Orl.Cir.1933); Pecoraro v. Kopanica, 173 So. 203 (La.App.Orl.Cir.1937); Clegg v. Hardware Mut. Cas. Co., 264 F.2d 152 (5th Cir.1959); Sahuc v. United States Fidelity & Guaranty Co., 320 F.2d 18 (5th Cir.1963); Bode v. Pan American World Airways, Inc., 786 F.2d 669 (5th Cir.1986); Mayo v. Borden Inc., 784 F.2d 671 (5th Cir.1986).

For all of these reasons, it is evident that the bystander recovery rule was not intended by the Lejeune court, or any other court that has adopted such a rule, to supersede all other categories and situations in which plaintiffs are permitted to recover for negligently inflicted emotional distress.

The dissenting opinion also adopts an extremely narrow approach to determining whether a statute prescribes a standard of conduct required of a reasonable person. In the dissent's view, the statute prescribes no standard for a bus operator's conduct affecting a motorist because the purpose of the statute is to protect children, not motorists. Although this may be the principal object of the statute, the dissenting opinion does not explain why the statute fails to prescribe a standard of conduct for a reasonable bus operator in this situation, even though the law clearly ordains how the operator is required to signal to the motorist whether it is safe or unsafe to pass the school bus. This type of approach, as Prosser & Keeton have observed:

“is an exceedingly narrow and quite unreasonable interpretation, as in the Missouri case where a requirement that emery wheels be hooded was held to be intneded to guard only against the dust hazard, and not to prevent injuries to workmen's eyes. This sort of highly restrictive interpretation has become quite unfashionable in recent years. A much more reasonable attitude is that of the New York court in a decision holding that an act requiring elevator shafts to be guarded covered the risk of objects falling down the shaft, to the effect that the accident need only be included within the same general risk, or class of risks, at which the statute is directed. Thus, in the absence of any other guide, a statute may well be assumed to include all risks that reasonably may be anticipated as likely to follow from its violation.” Prosser and Keeton, The Law of Torts, § 36 at p. 227.

The dissent's exceedingly narrow interpretation is anomalous because it seems clear that safety statutes, such as speed laws and traffic rules, usually are designed for the broad purpose of preventing accidents or dangerous situations, for the benefit of all those who foreseeably may be injured. See Prosser and Keeton, The Law of Torts, § 36 at p. 232. Furthermore, the dissent's highly restrictive view that the statute protects only the child would lead to absurd and unjust results. If the schoolboy had darted from behind the bus and the motorist had been free of fault in veering into a ditch or telephone pole to avoid the child, the motorist could not have recovered from the bus operator or the school board even for her physical injuries under the dissent's reading of the statute. On the other hand, if the motorist had arrived earlier while the bus was immobile and signalized, had failed to heed the signals, and had crashed into *586 the bus in an attempt to avoid the child, the school board could not recover from the motorist under the dissent's view of the statute for the damage to its school bus.

In the daylight of objective analysis, the dissent's parade of hypothetically horrible cases turns out to be just a bogeyman of its writer's imagination. Although it is not proper to predict how this court will interpret other statutes in cases not before it, clearly most other legislative schemes do not include the pertinent elements of the statute at issue here: (a) The bus operator's obligation to communicate a dual warning and command to a distinct, identifiable class of motorists; (b) A criminal penalty to be imposed for a motorist's failure to rely upon and obey the warning-command; (c) The consequent reliance of particular motorists upon the bus driver to properly direct their movements so as to avoid opprobrious accidents involving school children. Most statutes, such as those instanced by the dissent, create only obligations to the public or to motorists in general; they do not create special relationships based on quasi-official warnings and commands which citizens are required to obey, and upon which they are assured that they may rely to protect them from the repercussions of accidentally killing or maiming innocent school children. As for the difficulty the dissent foresees in distinguishing between a statute which prescribes such a direct, special obligation and one that does not, this chore is no more onerous than the challenge which judges face every day in determining whether a standard of conduct required of a reasonable person may be prescribed by legislative enactment. See, e.g., Carter v. City Parish Government of East Baton Rouge, 423 So.2d 1080 (La.1983); Boyer v. Johnson, 360 So.2d 1164 (La.1978); Smolinski v. Taulli, 276 So.2d 286 (La.1973); Prosser and Keeton, The Law of Torts § 36 at p. 225. It is one of the things that judges get paid to do.

Finally, and most basic, the dissent's legal analysis is topsy-turvy in that it totally disregards this court's legally established duty to provide full reparation for wrongful damage while it elevates to first importance this court's ancillary, and purely jurisprudential, function of imposing prophylactic limitations on the measure of damages in some cases. Consequently, the dissent fails to recognize that when such limitations are called for they must be formulated cautiously and commensurately with both the codal principle of full reparation and the magnitude of the abuse sought to protected against. As we indicated in the majority opinion, the underlying delictual principle of full reparation of fault-caused damage justifiably may be limited by the courts only when clearly called for by the public interest. Moreover, it is self evident that in imposing limits on reparation, even where warranted, courts may not act arbitrarily and should employ the means least restrictive to recovery that are necessary to protect the endangered public interest. In the Lejeune case this court concluded that certain prophylactic limitations were necessary to protect the litigants, the courts and the administration of justice from feigned and idiosyncratic claims. But in that case the court dealt with a potentially broad class of claimants including bystanders and accident-aftermath arrivers who had experienced no direct threat of loss or harm in the accident itself and who were owed no special, independent or direct duty by the tortfeasor. It would be arbitrary to assume that the same rules formulated in Lejeune for application to uninvolved spectators should be mechanically stretched to cover all types of emotional distress claims. As I think we have demonstrated in the majority opinion, the fact that the defendant's bus driver violated a direct, special statutory duty to the plaintiff and thereby caused her to become an actual participant in an accident in special circumstances where mental anguish was clearly foreseeable provides adequate assurance against bogus or idiosyncratic claims. To superimpose the bystander recovery rule on this very different type of situation would unnecessarily restrict and undermine the principle of full reparation which this court is required to follow by the legislated law.

Dissent

Hide all concurrence and dissent visual indicators.

*587 COLE, Justice, assigning additional reasons in dissent.

I respectfully supplement the dissent I previously filed in this case to clarify and focus upon what I consider to be the dominant issue. That issue is whether the plaintiff may recover for her emotional distress arising from the death of someone who does not bear a close relationship with her; and, the effect of the plaintiff's own causative fault on the question.

It is my considered judgment and firm belief that recovery for emotional distress arising from the death or injury to a stranger, and brought about partly by the plaintiff's own negligent conduct, should not be allowed. It is one thing to recognize a cause of action for emotional distress when the plaintiff bears a close relationship with the victim and plays no part in bringing about the condition; it is entirely another thing to allow recovery under the facts of this case.

This court overruled one hundred and thirty-five years of jurisprudence when it handed down Lejeune. It was done so with qualifications thoughtfully imposed. One of those qualifications was that the plaintiff must bear a close relationship with the victim of the accident. Here, the victim was a four-year-old child the plaintiff struck and killed. The child was a total stranger to the plaintiff. Admittedly, this case differs from Lejeune in that the plaintiff was physically involved in the accident and was not a mere bystander. However, in my view we should not use a duty intended primarily to protect against a certain risk and convert it into a vehicle for reaching the crucial policy determination which confronts the court in this case. Of course, there is support from some legal theorists for the position taken by the majority. There is also support against that position.

Aside from the legal theorists, a member of this court, other than this writer, dissents from the majority view on the basis there should be no recognition of a duty owed to this plaintiff; and, further, that under the circumstances of this case no duty was breached by the defendant. A member of the appellate panel that decided the case also dissented from the majority result, stating that Lejeune clarifies and explains the jurisprudence relative to damages for mental anguish arising from the death or injury to someone else. In his view, “What was once unclear is now certain: even if she proves causation, duty and breach, a plaintiff may not recover for her mental anguish if it resulted from injury or death of someone who does not have a close relationship with the plaintiff.” I believe these views have merit although they do not comport with the theory of the majority in this case, or with various other commentators and courts.

Finally, I recognize this court's duty to provide full reparation for wrongful damage. First, however, we must determine whether the damage is wrongful. This in many instances, is a matter of policy which entails a concern for the role of the courts in our society and the ability of the courts to maintain the respect of the public. If the courts impose uncommon results, the entire system of justice falls into disrepute and its structure is endangered. The question of how far courts should go in assessing liability, i.e., in what instances should a court and society limit a defendant's liability, is an important one. It is perhaps best answered by the following:

All rules of conduct, irrespective of whether they are the product of a legislature or are part of the fabric of the court-made law of negligence, exist for purposes. They are designed to protect some persons under some circumstances against some risks. Seldom does a rule protect every victim against every risk that may befall him, merely because it is shown that the violation of the rule played a part in producing the injury. The task of defining the proper reach or thrust of a rule in its policy aspects is one that must be undertaken in each case as it arises. (emphasis added.)

Malone, Ruminations on Cause–In–Fact, 9 Stan.L.Rev., 60, 73 (1956).

The liability of the defendant in this case is premised upon the breach of a “special, *588 direct duty created by law....” I have already stated I believe La.R.S. 32:80 is directed toward the protection of children who ride school buses, and not toward the protection of motorists. Assuming, arguendo, the statute does create a “special, direct duty ” to the plaintiff motorist in this case, I quote from our opinion in Pitre v. Opelousas General Hospital, 530 So.2d 1151, 1155 (La.1988): “Terms such as ‘duty’ are merely verbal expressions of policy decisions and do not explain them.” (emphasis added.) The use of the “duty ” analysis in this case is “merely verbal expressions of policy ” and I respectfully submit the majority has established bad judicial policy.

147*147 148*148 Jack A. Wintner, Carson & Wintner, McKeesport, for appellant.

Mark K. McNally, Pittsburgh, for appellee.

149*149 Before EAGEN, C.J., and O'BRIEN, ROBERTS, NIX, MANDERINO and LARSEN, JJ.

OPINION

NIX, Justice.

At issue in this appeal is the vexing and complex question of when a plaintiff should be allowed to recover damages for negligently caused mental trauma.^[1] The specific question presented for our review is whether the trial court properly sustained appellee's demurrer to the fourth count of appellant's complaint in which she sought to recover damages for physical and mental injuries incurred when she saw her minor daughter struck and killed by an automobile, although the plaintiff herself was not within any zone of personal physical danger and had no reason to fear for her own safety. For the reasons set forth below, we believe the demurrer was improperly sustained and therefore reverse the trial court and order the parties to proceed to trial on the fourth count of the complaint.

It is axiomatic in the law of pleading that preliminary objections in the nature of a demurrer admit as true all well and clearly pleaded material, factual averments and all inferences fairly deducible therefrom. Yania v. Bigan, 397 Pa. 316, 155 A.2d 343 (1959); Byers v. Ward, 368 Pa. 416, 84 A.2d 307 (1951). Conclusions of law and unjustified inferences are not admitted by the pleading. Lerman v. Rudolph, 413 Pa. 555, 198 A.2d 532 (1964). Starting from this point of 150*150 reference the complaint must be examined to determine whether it sets forth a cause of action which, if proved, would entitle the party to the relief sought. If such is the case, the demurrer may not be sustained. On the other hand, where the complaint fails to set forth a cause of action, a preliminary objection in the nature of a demurrer is properly sustained. Finally, where the propriety of an order sustaining a demurrer is being reviewed by a court of last resort, the fact that the theory for recovery relied upon has not been previously sanctioned, is not conclusive. It must be remembered that "[e]very cause of action . . ., however, was once a novel claim, and the absence of Pennsylvania authority for appellant's proposition is not an end to the issue." Papieves v. Kelly, 437 Pa. 373, 376-77, 263 A.2d 118, 120 (1970).

The averred facts are as follows. Appellant JoAnne Marie Sinn lived with her husband and two minor children in Elizabeth Township, Allegheny County. On June 12, 1975, at approximately 5:53 p.m., the deceased, Lisa Sinn, and her sister, Deborah, were standing by the Sinn's mail box located along side the Greenock-Buena Vista Road, approximately 36 feet from the nearest intersection. An automobile operated by the appellee struck Lisa and hurled her through the air, causing injuries which resulted in her death. Deborah was not struck by the vehicle, although it narrowly missed her. Appellant witnessed the accident from a position near the front door of her home. The Sinns filed a four-count trespass complaint against appellee on June 3, 1976. The first and second counts were brought under the Wrongful Death and Survival acts, respectively. The third count was brought for Deborah for psychological damages she sustained as a result of watching her sister die.^[2] 151*151 The fourth count was brought by appellant for damages she sustained from the emotional stress of witnessing her daughter's death. It states, inter alia:

22. Plaintiff, JoANNE MARIE SINN, is the mother of LISA ANNE SINN, deceased, and resides in the Township of Elizabeth, County of Allegheny, Pennsylvania.

* * * * * *

24. Defendant's vehicle did not strike Plaintiff.

25. At the time of the aforesaid accident, the Plaintiff was observing the deceased from a position at or near the front door of her home.

26. The Plaintiff became hysterical, unnerved, and emotionally shattered as she viewed the Defendant's automobile strike and kill her daughter, LISA ANNE SINN.

27. As a result of watching the aforementioned accident, the Plaintiff suffered a shock to her nerves and nervous system, and sustained grievous mental pain and suffering resulting in severe depression and an acute nervous condition.

28. As a result of the foregoing, Plaintiff was required to expend money for medicines and/or tranquilizers, and may be required to expend considerable sums for the treatment of her resulting injuries and mental suffering in the future.^[3]

152*152 Appellee filed preliminary objections in the nature of a demurrer to the third and fourth counts claiming that the complaint failed to aver that Deborah and appellant were in personal danger of physical impact, that they feared such physical impact, or that they suffered physical injury as a result of the emotional distress caused by the accident. The Allegheny County Court of Common Pleas Civil Division, sitting en banc, overruled the demurrer as to the third count but sustained it as to the fourth. Based on its reading of Niederman v. Brodsky, 436 Pa. 401, 261 A.2d 84 (1970), and subsequent Superior Court decisions, that court ruled that while Deborah was within the zone of danger and hence could proceed with her action, appellant was not within the zone of danger. Appellant appealed to the Superior Court which affirmed without opinion. Sinn v. Burd, 253 Pa.Super. 627, 384 A.2d 1003 (1978). We granted allocatur.

I.

Prior to the beginning of this decade, this state was a firm adherent to the "impact rule" regulating recovery for damages 153*153 in tort. See, e.g., Knaub v. Gotwalt, 422 Pa. 267, 270, 220 A.2d 646, 647 (1966) and cases cited therein.^[4] This rule prevented the complaining party from recovering damages for injuries resulting from fright, nervous shock, or mental or emotional disturbances, unless this distress was accompanied by physical impact — i.e., physical injury — upon the person of the complaining party. Our cases applied this rule with obstinate rigidity^[5] in that recovery was denied not only when the complaining party was a nearby witness, but also to the actual victim of the tortfeasor's negligent or frightening conduct. See, e.g., Bosley v. Andrews, 393 Pa. 161, 142 A.2d 263 (1958).

In the first month of this decade, this Court joined the ranks of forward-looking jurisdictions and abandoned the impact rule in Niederman v. Brodsky, 436 Pa. 392, 261 A.2d 84 (1970) (Niederman). In Niederman, an automobile skidded onto a sidewalk, narrowly missed the plaintiff, but struck his son who was standing beside him. The plaintiff, although untouched by the automobile, suffered a heart attack which required hospitalization. The trial court dismissed plaintiff's complaint for its failure to allege any physical impact. In an opinion by Mr. Justice Roberts, this Court reversed the dismissal, abandoned the impact rule, and adopted the zone of danger theory. That is, "where the plaintiff was in personal danger of physical impact because of the direction of a negligent force against him and where plaintiff actually did fear the physical impact," Niederman at 413, 261 A.2d at 90, he could recover for the shock, mental pain, and physical injuries attendant to the negligent incident even though he was not struck by the negligent force.

154*154 In so doing, we recognized that our decision was compelled by the "inherent humanitarianism of our judicial process." Id., 436 Pa. at 404, 261 A.2d at 85. Furthermore, the three basic arguments supporting the impact rule had been eroded away by societal and technological advancements. We consequently rejected the arguments that medical science would be unable to prove a causal nexus between the claimed damages and the alleged fright or mental distress, id., 436 Pa. at 405-08, 261 A.2d at 86-87; that the possibility of recovery in such cases would encourage fictitious injuries and fraudulent claims, id., 436 Pa. at 408-11, 261 A.2d at 87-89; and that the courts would be swamped by a virtual avalanche of cases, id., 436 Pa. at 411-13, 261 A.2d at 89.

It was not until mid-decade that the appellate courts of this state were presented with the question of whether a bystander outside the zone of physical danger could recover for physical or mental injury caused by viewing the serious injury or death of a loved one. In Scarf v. Koltoff, 242 Pa.Super. 294, 363 A.2d 1276 (1976), a husband, while crossing the street was struck and injured by a vehicle negligently driven by the defendant. The victim's wife witnessed the accident and as a result of the shock of the experience, she suffered a myocardial infarction or aggravation of a pre-existing cardiac condition, and died two months later. The man survived his injuries and brought survival and wrongful death actions based upon the death of the wife. These actions were dismissed by the trial court and the Superior Court affirmed, citing the failure of the complaint to allege that the wife was herself in danger of physical impact or that she feared such impact. The Superior Court recognized that our Niederman decision required such a possibility of fear of physical impact as a predicate to successful recovery on the part of the wife's estate. Additionally, that court found two policy reasons against extending coverage to bystanders such as the wife: the problem of unlimited and unduly burdensome liability, and the difficulty of reasonably circumscribing the area of liability. See 242 Pa.Super. at 299, 363 A.2d at 1279. In so ruling, the Superior Court 155*155 relied heavily upon the New York case of Tobin v. Grossman, 24 N.Y.2d 609, 301 N.Y.S.2d 554, 249 N.E.2d 419 (1969).

Building upon the Scarf and Niederman decisions, the Superior Court found that the plaintiff was within the zone of danger in Bowman v. Sears, Roebuck & Co., 245 Pa.Super. 530, 369 A.2d 754 (1976). Ms. Bowman and her two adult daughters were shopping in a Sears store when Ms. Bowman saw five men employed by the store accost and forcibly remove her daughters from the shopping area. The daughters were detained for thirty minutes and upon their return, found their mother in a state of great anxiety which led to her suffering a heart attack. Ms. Bowman's complaint for damages alleged that her injury resulted not only from the mental anguish and shock of seeing the assault upon her daughters, but also from her own fear of physical attack by the same store employees. The Superior Court found that the mother had pleaded a claim within the zone of danger theory and thus presented a triable question of fact for the jury.

II.

In Niederman we stated that:

[i]t is fundamental to our common law system that one may seek redress for every substantial wrong. The best statement of the rule is that a wrong-doer is responsible for the natural and proximate consequences of his misconduct.

Niederman at 403, 261 A.2d at 85.

The zone of danger concept was our attempt to provide meaningful redress for damages caused by mental distress.

Since the Niederman decision, experience has taught us that the zone of danger requirement can be unnecessarily restrictive and prevent recovery in instances where there is no sound policy basis supporting such a result.^[6] It has unquestionably not been effective in every instance of assuring 156*156 that one may "seek redress for every substantial wrong." The restrictiveness of the zone of danger test is glaringly apparent where it is allowed to deny recovery to a parent who has suffered emotional harm from witnessing a tortious assault upon the person of his or her minor child. A majority of the commentators and a growing number of jurisdictions have considered this problem in recent years and have concluded that it is unreasonable for the zone of danger requirement to exclude recovery in such cases.^[7]

This new awareness of the unfairness of the zone of danger requirement in these cases is based upon the implicit 157*157 acceptance that the emotional impact upon a parent witnessing the killing of a minor child is at least as great and as legitimate as the apprehension that is inspired by a plaintiff being personally within the zone of danger. Dissatisfaction with the zone of danger concept was explained in this manner by one commentator:

Insofar as the "field of danger" test in third party cases was designed to serve the general policies of (1) protecting the court system against fraudulent or trivial claims by frustrating suits instituted by uninvolved bystanders who merely happen to witness an accident, and (2) protecting defendants from liability for an injury which results more from the particular emotional makeup of plaintiff than from the nature of defendant's actions, court reluctance to impose liability for emotional harm to eyewitnesses in general is understandable. In at least one instance, however, the rule fails to serve these policy objectives. A severe emotional injury to a parent who witnesses the negligent killing of his or her child is certainly foreseeable. An emotional injury claim in such an instance would hardly be frivolous or trivial, nor would it be unjust to defendant.

* * * * * *

In cases involving peril or harm to another, the "field of danger" test is unnecessary to protect the integrity of the judicial system or to avoid burdening defendant with unforeseeable injuries in cases where plaintiff witnesses harm to an immediate family member.

Comment, 1977 Wisc.L.Rev. 1089, 1096 (1977) (footnotes omitted).

Applications of the zone of danger test to situations where the death or serious injury of a child is witnessed by a parent creates the very evil that the test was designed to eliminate, i.e., arbitrariness. It would bar recovery depending upon the position of the plaintiff at the time of the event, and ignores that the emotional impact was most probably influenced by the event witnessed — serious injury 158*158 to or death of the child — rather than the plaintiff's awareness of personal exposure to danger.^[8]

Our cases have recognized five policy arguments relevant to bystander recovery. They are medical science's supposed difficulty in proving causation between the claimed damages and the alleged fright, the fear of fraudulent or exaggerated claims, the concern that to allow such a recovery will precipitate a veritable flood of litigation, the problem of unlimited and unduly burdensome liability, and the difficulty of reasonably circumscribing the area of liability. We will discuss them seriatim.

Medical science is able to supply a causal link between the psychic damage suffered by the bystander and the shock or fright attendant to having witnessed the accident.

It has long been assumed that medical science is unable to establish that the alleged psychic injuries in fact resulted from seeing a gruesome accident. See, e.g., Huston v. Freemansburg Boro., 212 Pa. 548, 550, 61 A. 1022 (1905), describing a cause of action for mental disturbance as being intangible, untrustworthy, illusory, and speculative.^[9] Advancements 159*159 in medical and psychiatric science throughout this century have discredited these hoary beliefs. Niederman, 436 Pa. at 405-08, 261 A.2d at 86-87.^[10] One commentor concisely answered this question in 63 Geo.L.J. 1179, 1184-85 (1975):

The growing competence of medical science in the field of psychic injuries has diminished the problems of proof in mental distress cases. The development of psychiatric tests and the refinement of diagnostic techniques has led some authorities to conclude that science can establish with reasonable medical certainty the existence and severity of psychic harm. In cases involving negligently inflicted mental distress, however, changes in the law have not kept pace with the increased sophistication of psychiatry. Special rules created to deal with problems of proof that were a legitimate concern in mental distress cases 50 years ago have restricted modern courts in their handling of these claims. (footnotes omitted.)

Additionally, as we stated in the Niederman case:

160*160 Finally, even if we assume arguendo that a great deal of difficulty still remains in establishing the causal connection, this still does not represent sufficient reason to deny appellant an opportunity to prove his case to a jury. There is no reason to believe that the causal connection involved here is any more difficult for lawyers to prove or for judges and jurors to comprehend than many others which occur elsewhere in the law . . . [I]n any event, difficulty of proof should not bar the plaintiff from the opportunity of attempting to convince the trier of fact of the truth of her claim.

Niederman at 408, 261 A.2d at 87 (emphasis in the original).

Advancements in modern science lead us to further conclude that psychic injury is capable of being proven despite the absence of a physical manifestation of such injury. Some courts in abandoning the impact rule permit recovery for emotional distress only where the plaintiff can prove that the psychic injury caused her to suffer physical damage as well. See, e.g., Dziokonski v. Babineau, 380 N.E.2d 1295 (Mass. 1978); Hughes v. Moore, 214 Va. 27, 197 S.E.2d 214 (1973). This requirement of resulting physical injury is another synthetic device to guarantee the genuineness of the claim. Leong v. Takasaki, 55 Haw. 398, 520 P.2d 758, 763 (1974); Bystander's Recovery for Negligently Inflicted Mental Distress, 29 Ark.L.Rev. 562, 564 (1976). We agree with the Leong court that

[b]ecause other standards exist to test the authenticity of plaintiff's claim for relief, the requirement of resulting physical injury, like the requirement of physical impact, should not stand as another artificial bar to recovery, but merely be admissible as evidence of the degree of mental or emotional distress suffered.

Leong v. Takasaki, 520 P.2d at 762.

Bystander recovery will not open the courthouse door to fictitious injuries and fraudulent claims.

Courts upholding and those courts denying bystander recovery agree that concern over fraud is without justification. 161*161 See, e.g., Tobin v. Grossman, 24 N.Y.2d 609, 615, 249 N.E.2d 419, 422, 301 N.Y.S.2d 554, 558-59 (1969) (denying recovery); Dillon v. Legg, 68 Cal.2d 728, 69 Cal.Rptr. 72, 77, 441 P.2d 912 (1968) (allowing recovery). The commentators are in accord with the judicial rejection of this argument.^[11] One medicolegal expert takes the view that with the development of medical and psychiatric understanding of methods of ascertaining psychic injury, "[v]ery rarely, today, can a malingerer recover damages." Cantor, Psychosomatic Injury, Traumatic Psychoneurosis, and Law, 6 Cleve.-Mar.L.Rev. 428, 435 (1957). See also, id., at 435-37.

The reasons that compelled us to reject this argument in Niederman are equally valid today:

[W]e are unable to accept the proposition that our courts and the judicial system in general cannot deal with fraudulent claims when they arise. Factual, legal, and medical charlatans are unlikely to emerge from a trial unmasked. This same thought has been given compelling exposition in recent opinions by the highest courts of our neighboring states, Delaware, New Jersey, and New York. We, of course, join these and other authorities in rejecting as patently fallacious the argument that would bar actions such as appellant's because some other litigants might present false or feigned claims. "Public policy requires the courts, with the aid of the legal and medical professions, 162*162 to find ways and means to solve satisfactorily the problems thus presented — not expedient ways to avoid them." Robb v. Pennsylvania Railroad Company, 210 A.2d (709) at 714.

Neiderman, 436 Pa. at 410-11, 261 A.2d at 88-89 (footnotes omitted).

The fear of a flood of similar litigation is an insufficient reason to deny bystander recovery.

This consideration focuses upon the belief that to grant recovery in the instant case would cause our courts to "be swamped by a virtual avalanche of cases." Knaub v. Gotwalt, 422 Pa. at 271, 220 A.2d at 647. Again, commentators and courts on both sides of the recovery issue agree that this fear is specious.^[12] As we stated in Niederman:

163*163 [T]he fundamental concept of our judicial system [is] that any [caseload] increase should not be determinative or relevant to the availability of a judicial forum for the adjudication of impartial individual rights. "It is the business of the law to remedy wrongs that deserve it, even at the expense of a `flood of litigation'; and it is a pitiful confession of incompetence on the part of any court of justice to deny relief upon the ground that it will give the courts too much work to do." Prosser, Intentional Infliction of Mental Suffering: A New Tort, 37 Mich.L.Rev. 874 (1939). We obviously do not accept the "too much work to do" rationale. We place the responsibility exactly where it should be: not in denying relief to those who have been injured, but on the judicial machinery of the Commonwealth to fulfill its obligation to make itself available to litigants. Who is to say which class of aggrieved plaintiffs should be denied access to our courts because of speculation that the workload will be a burden? Certainly this Court is unwilling to allow such considerations to influence a determination whether a class of litigants will be denied or permitted to seek adjudication of its claims. See Robb v. Pennsylvania Railroad Company, 210 A.2d at 714 (Del. 1965) ("if there be increased litigation, the courts must willingly cope with the task"); . . .

Niederman, 436 Pa. at 412, 261 A.2d at 89 (footnotes omitted).

Bystander recovery would not present a problem of unlimited or unduly burdensome liability.

This is the heart of the controversy raised by the instant appeal. Under either the impact theory which required a "battery" to the plaintiff, or the later developed zone of danger concept which required an "assault" upon the plaintiff, the courts remained securely ensconced within traditionally recognized areas of tort responsibility. Here the appellant is seeking recovery for injuries sustained as a result of witnessing a "battery" upon another. In considering 164*164 the wisdom of extending civil liability for tortious conduct, courts have been inclined to impose a duty where public policy demands that "as between the tortfeasor who started the chain of circumstances resulting in the injury and the entirely innocent plaintiff, the tortfeasor should suffer the consequences." Bystander Recovery for Mental Distress, 37 Fordham L.Rev. 429, 449 (1969) quoting McNiece, Psychic Injury and Tort Liability, 24 St. John's L.Rev. 1, 77 (1949).

The more complex and interwoven societal relations become the greater the responsibility one must accept for his or her conduct. In determining the existence of a duty of care, it must be remembered that the concept of duty amounts to no more than "the sum total of those considerations of policy which led the law to say that the particular plaintiff is entitled to protection" from the harm suffered. Leong v. Takasaki, 55 Haw. 398, 520 P.2d 758, 764 (1974). To give it any greater mystique would unduly hamper our system of jurisprudence in adjusting to the changing times. The late Dean Prosser expressed this view as follows:

These are shifting sands, and no fit foundation. There is a duty if the court says there is a duty; the law, like the Constitution, is what we make it. Duty is only a word with which we state our conclusion that there is or is not to be liability; it necessarily begs the essential question. When we find a duty, breach and damage, everything has been said. The word serves a useful purpose in directing attention to the obligation to be imposed upon the defendant, rather than the causal sequence of events; beyond that it serves none. In the decision whether or not there is a duty, many factors interplay: The hand of history, our ideas of morals and justice, the convenience of administration of the rule, and our social ideas as to where the loss should fall. In the end the court will decide whether there is a duty on the basis of the mores of the community, "always keeping in mind the fact that we endeavor to make a rule in each case that will be practical and in keeping with the general understanding of mankind." 165*165 Prosser, Palsgraf Revisited, 52 Mich.L.Rev. 1, 14-15 (1953).^[13]

The Rhode Island Supreme Court recently examined the questions of duty and the demands of public policy in D'Ambra v. United States, 114 R.I. 643, 338 A.2d 524 (1975), a case factually similar to the one now before us.^[14] In permitting the bystanding mother to recover, that court found that the defendant did owe a duty of care to the bystander. In analyzing the policies underpinning this duty, the court stated:

The scope of potential liability commonly finds theoretical expression in such concepts as duty and proximate cause. These are, however, exceedingly elastic notions which, instead of dictating an answer to whether the plaintiff has stated a cause of action against the defendant, 166*166 merely reformulate the question. They are, indeed, merely reductions of the multi-faceted mores of the community, easily expressible formuli for the core problem of whether the law will countenance a shifting of the burden of loss. As Professor Prosser has noted:

"* * * the problem of duty is as broad as the whole law of negligence, and that no universal test for it ever has been formulated. It is a shorthand statement of a conclusion, rather than an aid to analysis in itself. * * But it should be recognized that `duty' is not sacrosanct in itself, but only an expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection". Prosser, Torts § 53 (4th ed. 1971).

Likewise, Justice Andrews, in his famous dissent in Palsgraf v. Long Island R.R., 248 N.Y. 339, 162 N.E. 99 (1928) wrote:

"What we do mean by the word `proximate' is that, because of convenience, of public policy, of a rough sense of justice, the law arbitrarily declines to trace a series of events beyond a certain point. This is not logic. It is practical politics."

Id., at 526-27

The leading decision espousing denial of recovery in these instances is that of Tobin v. Grossman, 24 N.Y.2d 609, 301 N.Y.S.2d 554 (1969).^[15] The New York Court in Tobin argued 167*167 that the extension of liability for damages sustained by third parties beyond the zone of danger would represent the creation of a new duty and that "there are no new technological, economic, or social developments" which would warrant the recognition of a new cause of action. Id. at 615, 301 N.Y.S.2d at 558. First, we suggest that the Tobin court overstates the nature of the request for recovery in these cases. The conduct which is offered as supporting the liability — i.e., in this case the negligent operation of the vehicle — is of the kind which has traditionally been held to have been actionable by plaintiffs who had sustained provable damages. The departure that is being urged is as to the scope of damages that will be recognized as flowing from that conduct. In this context, we are satisfied that the developments in the fields of medical science and psychiatry do provide the impetus for expanding our legal recognition of the consequences of the negligent act. To arbitrarily refuse to recognize a now demonstrable injury flowing from a negligent act would be wholly indefensible.

The Tobin court further attempted to bolster its position by raising the specter of future extensions that may be urged if we depart from the zone of danger theory.^[16] We find this attempt to resort to the logical "gimmick" of reductio ad absurdum to be of little value in resolving the legitimate questions presented. Under the facts that we are being called upon to decide, the emotional impact upon a mother witnessing the sudden and violent death of her small child is unquestionably as traumatic as would have been the case if the mother had also been within the zone of danger. Recorded history is replete with instances where a mother would willingly have given her own life for that of her child. Thus to attempt to justify ignoring this legitimate and natural response to tortious conduct by positing situations 168*168 not presented would mock justice and arbitrarily turn a deaf ear upon a compelling claim for relief.

In an attempt to still the concerns of those troubled by "the fear of unlimited liability" the Supreme Court of Hawaii suggested the limiting of recovery "to claims of serious mental distress." Leong v. Takasaki, 520 P.2d at 764. We believe this is a reasonable response to the concern. We agree that it would be unreasonable to hold the defendant responsible for the mental distress that may be experienced by the most timid or sensitive members of the community:

Certainly the law should not compensate for every minor psychic shock incurred in the course of daily living; it should not reinforce the neurotic patterns of our society. At some point, however, a person threatened by severe mental injury should be able to enforce his claim to reasonable psychological tranquillity.

D'Ambra v. United States, 338 A.2d at 529 (footnote omitted).

The Leong court attempted to achieve an objective standard by defining serious mental distress as being properly found where a reasonable person "normally constituted, would be unable to adequately cope with the mental stress engendered by the circumstances" of the event. Id. Such a test focuses upon the situation producing the emotional stress and requires it to be a nature that would be likely to produce a response in a person of average sensitivities. In this determination factors such as the context in which the trauma occurred, the development of physical ramifications, and the duration and severity of the emotional distress are available to make the judgment an objective — as opposed to a subjective — one.

The second level of the argument posited by the New York court in Tobin concerns the possibility of unduly burdensome liability. That court viewed this possibility as:

. . . a kind of dollars-and-cents argument. It does not vanish, however, by reference to widespread or compulsory insurance. Constantly advancing insurance costs can become an undue burden as well, and the aggregate 169*169 recoveries in a single accident of this kind are not likely to stay within ordinary, let alone, compulsory insurance liability limits.

Tobin v. Grossman, 24 N.Y.2d at 617, 301 N.Y.S.2d at 559-60, 249 N.E.2d at 423.

This view was forcefully attacked in a dissenting opinion written by the late Judge Kenneth B. Keating. Judge Keating pointed out that "[n]ot one piece of evidence is offered to prove that the `dollar-and-cents' problem will have the dire effects claimed." Id., at 620, 301 N.Y.S.2d at 562, 249 N.E.2d at 525 (dissenting opinion). He further contended that:

Ever since MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050, L.R.A. 1916F, 696, was decided more than a half century ago, there has been an expanding recognition that the argument concerning unlimited liability is of no merit, yet the aberrations persist. One would imagine that we were here involved with a catastrophic loss. There have already been decisions imposing liability of far greater dimension than can ever arise if we should embark upon a search for "essential justice" in the bystander class of cases.

Id., 301 N.Y.S.2d at 563, 249 N.E.2d at 525.

The Rhode Island Supreme Court also found this "dollars-and-cents" argument unpersuasive. D'Ambra v. United States, 338 A.2d at 530.

It is possible to reasonably circumscribe the area of liability.

This issue raises the question of the extent to which bystander recovery will be permitted.^[17] We are confident 170*170 that the application of the traditional tort concept of foreseeability will reasonably circumscribe the tortfeasor's liability in such cases. Foreseeability enters into the determination of liability in determining whether the emotional injuries sustained by the plaintiff were reasonably foreseeable to the defendant.^[18]

In the seminal Dillon case, the California Supreme Court identified three factors determinative of whether the injury to the Plaintiff was reasonably foreseeable:

(1) Whether plaintiff was located near the scene of the accident as contrasted with one who was a distance away from it. (2) Whether the shock resulted from a direct 171*171 emotional impact upon plaintiff from the sensory and contemporaneous observance of the accident, as contrasted with learning of the accident from others after its occurrence. (3) Whether plaintiff and the victim were closely related, as contrasted with an absence of any relationship or the presence of only a distant relationship.

Dillon v. Legg, 69 Cal.Rptr. at 80, 441 P.2d at 920 In elaborating upon these factors, the court stated:

The evaluation of these factors will indicate the degree of the defendant's foreseeability: obviously defendant is more likely to foresee that a mother who observes an accident affecting her child will suffer harm than to foretell that a stranger witness will do so. Similarly, the degree of foreseeability of the third person's injury is far greater in the case of his contemporaneous observance of the accident than that in which he subsequently learns of it. The defendant is more likely to foresee that shock to the nearby, witnessing mother will cause physical harm than to anticipate that someone distant from the accident will suffer more than a temporary emotional reaction. All these elements, of course, shade into each other; the fixing of obligation, intimately tied into the facts, depends upon each case.

In light of these factors the court will determine whether the accident and harm was reasonably foreseeable. Such reasonable foreseeability does not turn on whether the particular defendant as an individual would have in actuality foreseen the exact accident and loss; it contemplates that courts, on a case-to-case basis, analyzing all the circumstances, will decide what the ordinary man under such circumstances should reasonably have foreseen. The courts thus mark out the areas of liability, excluding the remote and unexpected.

Id., at 80-81, 441 P.2d at 920-21 (emphasis in the original).

Applying this standard to the case before it, the California court reversed the summary judgment awarded the defendants on facts almost identical with those now before us. A negligently driven automobile struck and killed Erin Dillon, 172*172 an "infant" as she crossed a road. Her sister Cheryl, also an infant, was standing close to her and witnessed the accident. Their mother, standing a little distance away, witnessed the accident and sustained great emotional disturbance and shock. The trial court ruled that Cheryl was within the zone of danger and that an action for mental distress begun on her behalf could be brought, but ruled that Mrs. Dillon was outside the zone of danger and was not owed a duty of care by the driver of the car. The California Supreme Court reversed, and, applying the factors above, held that Mrs. Dillon was within a zone of emotional harm and could bring her action for psychic distress.

The Dillon factors and large parts of that opinion were adopted verbatim by the court in D'Amicol v. Alvarez Shipping Co., Inc., 31 Conn.Super. 164, 326 A.2d 129 (1973). That court upheld the right of a father and mother to recover damages for the shock and fright they incurred from witnessing the death of their young son in a traffic accident. The parents and the child were riding in the same car at the time of the accident.^[19]

III.

In summary, we conclude that we cannot accept the callous view of the Tobin court that the possibility of a sudden and violent termination of a young life is a risk assumed in child rearing and does not require recovery where mental distress results from the witnessing of such an 173*173 event.^[20] We are satisfied that public policy demands that we not permit the application of the zone of danger concept to deny recovery merely because of the nature of the damage. We are also satisfied that by the proper application of the tort concept of foreseeability the area of liability may be reasonably circumscribed.

In applying the preceding discussion to the facts presented in the instant appeal, it is apparent that the trial court prematurely sustained preliminary objections to the fourth count of the complaint on the basis that it did not state a cause of action. Since we have determined that a tortfeasor's liability for mental distress is not to be denied solely because the plaintiff was beyond the zone of physical danger, we must examine whether the injuries sustained by appellant were reasonably foreseeable. It is clear that appellant's injuries were of a nature reasonably foreseeable under the circumstances alleged. Where the bystander is a mother who witnessed the violent death of her small child and the emotional shock emanated directly from personal observation of the event, we hold as a matter of law that the mental distress and its effects is a foreseeable injury.^[21]

Regardless of whether Mrs. Sinn will be ultimately successful in recovering the damages she sustained, we believe:

174*174 the gravity of appellant's injury and the inherent humanitarianism of our judicial process and its responsiveness to the current needs of justice dictate that appellant be afforded a chance to present [her] case to a jury and perhaps be compensated for the injury [she] has incurred Niederman, 436 Pa. at 404, 261 A.2d at 85 (emphasis in the original).

The order of the Court of Common Pleas sustaining the appellee's demurrer to Count IV of the complaint is hereby reversed. The case is remanded to the Court of Common Pleas for proceedings consistent with this opinion.

EAGEN, C.J., filed a concurring opinion.

LARSEN, J., concurred in the result.

ROBERTS, J., filed a dissenting opinion in which O'BRIEN, J., joined.

EAGEN, Chief Justice, concurring.

The various positions and views have been extensively discussed in the scholarly opinions of Mr. Justice Roberts and Mr. Justice Nix and need no further explication by me. Needless to say, the problems presented instantly are extremely difficult. In the hope of rendering justice and at the same time not imposing any unreasonable burdens, I have reached the following conclusions. Recovery should be permitted in cases of this nature even where the plaintiff is beyond the scope of danger if (1) the plaintiff is closely related to the injured party, such as a mother, father, husband or wife; (2) the plaintiff is near the scene of and views the accident; (3) the plaintiff suffers serious mental distress as a result of viewing the accident and physical injury or suffers serious mental distress and there is a severe physical manifestation of this mental distress.

Justice mandates that the plaintiff be given the opportunity of proving that she meets the foregoing requirements. Hence, I concur in the order remanding the case for a new trial.

175*175 ROBERTS, Justice, dissenting.

"Rachael weeping for her children refused to be comforted: because they were not." Jeremiah, xxxi, 15.

The depth and inconsolable nature of a parent's loss at the death of a child is unique in human experience. And where that death is caused by another's irresponsible act, it is not unexpected that parents turn to the law to seek redress for the harm done to them.

"The law of torts . . . is concerned with the allocation of losses arising out of human activities. . . .

`The purpose of the law of torts is to adjust these losses, and to afford compensation for injuries sustained by one person as the result of the conduct of another.'"

Prosser on Torts, 4th ed. § 1 (1971) quoting Wright, "Introduction to the Law of Torts," 8 Camb.L.J. 238 (1944).

Yet even the law must recognize that not every human loss arising out of another's conduct constitutes a legal injury for which compensation shall be available. Prosser, supra, § 1. The ineluctable fact is that among all the jurisdictions which have addressed the question now before us, in only one, Hawaii, is judicial redress provided for appellant's injury. This is not explained, as Mr. Justice Nix would suggest, by a national judicial indifference to the emotional distress caused either by the death of a loved one or the shock, for anyone, of immediately perceiving a violent death. It is explained, rather, by the foundational jurisprudential wisdom that recovery justified only by arbitrary rules and distinctions must be avoided. This is true not only because arbitrary distinctions are fundamentally unfair, but also because, of course, they defy rational application in future cases, the cornerstone of the law. Because Mr. Justice Nix's opinion can rest only on arbitrary distinctions, I must dissent.

The crux of appellant's injuries is described in paragraphs 26, 27 & 28 of the Fourth Count of the Complaint:

"26. The Plaintiff became hysterical, unnerved, and emotionally shattered as she viewed the Defendant's automobile strike and kill her daughter, Lisa Anne Sinn.

176*176 27. As a result of watching the aforementioned accident, the Plaintiff suffered a shock to her nerves and nervous system, and sustained grievous mental pain and suffering resulting in severe depression and an acute nervous condition.

28. As a result of the foregoing, Plaintiff was required to expend money for medicines and/or tranquilizers, and may be required to expend considerable sums for the treatment of her resulting injuries and mental suffering in the future."

While Mr. Justice Nix summarizes appellant's complaint as seeking damages for physical and mental injuries, the complaint reveals only a claim for emotional injuries. See Restatement (Second) Torts, § 436 A, comment c (1965).^[1] Further, the complaint seeks, in addition to compensation for emotional injuries, damages for future mental suffering. Thus, the novel issue truly presented by this complaint is whether a plaintiff-parent whose safety is never at risk, who suffers no physical injury, but who witnesses a fatal accident involving her children should be allowed to recover from the tortfeasor for negligent infliction of emotional distress and future mental suffering.

I

Mr. Justice Nix, announcing the judgment of the Court, asserts that there is "no sound policy basis" upon which to distinguish this case from Neiderman v. Brodsky, 436 Pa. 401, 261 A.2d 84 (1970). Reason, as well as the overwhelming 177*177 weight of authority, demonstrates that the majority is in error.

In Neiderman, recovery was sought for physical injuries. The issue there was whether those injuries could be proximately traced to the tortfeasor's negligence when the physical injury followed emotional distress caused by the tortfeasor, rather than a physical impact. We held that physical injuries such as the heart attack suffered by the Neiderman plaintiff clearly could be proximately caused by emotional distress or fear for one's own safety and that one who puts another in risk of physical safety is liable for the physical injuries caused as a result. Thus, in Neiderman, recovery was permitted for physical injuries suffered as a result of emotional distress brought on by another's negligent threat to the plaintiff's physical safety.

Here, there was no threat to plaintiff's physical safety and plaintiff has suffered no physical injury. Plaintiff seeks recovery only for mental distress caused by the defendant's negligent interference with another's safety. Since in Neiderman, the plaintiff sought recovery for his physical injuries and for the pain and suffering which accompanied those injuries, but not for the emotional distress which caused the injury, that case in no way controls today's decision. Indeed, there is nothing inconsistent in recognizing that physical injuries may be caused by mental distress but not awarding damages for mental distress suffered without physical consequence. Further, there is nothing inconsistent about permitting recovery where the distress for one's own safety causes physical injury, but denying recovery where one is distressed only for another's safety.

No one could seriously deprecate the severity of the emotional shock plaintiff here claims to have sustained. But the distinctions between recovery in Neiderman and recovery here cannot be ignored. Here, if there is no reasonable measure of plaintiff's pain, then any recovery will be essentially speculative. Then, too, the nature of our society requires of each of us a remarkable degree of emotional fortitude. It is not unreasonable to draw the line between 178*178 that degree which is required and that which is not by reference to that emotional distress which causes serious physical injury or harm. And it cannot be denied that if not the genuineness, then at least the intensity and thus the nature of the injury, may be difficult to assess where it causes no physical injury.

Even the Restatement (Second) of Torts, supra, distinguishes between recovery for physical harm caused by mental distress, and recovery for mental distress, permitting recovery only in the first instance.^[2] Compare §§ 436 & 436 A.

Similarly, the Supreme Court of California has repeatedly reaffirmed that Dillon v. Legg, 68 Cal.2d 728, 69 Cal.Rptr. 72, 440 P.2d 912, 29 A.L.R.3d 1316 (1968) (in bank), upon which Mr. Justice Nix places heavy reliance, permits recovery only where the emotional shock of witnessing an accident causes physical injuries. "[T]he traumatic shock which plaintiff suffers must result in some form of physical injury." Krouse v. Graham, 19 Cal.3d 59, 137 Cal.Rptr. 863, 871, 562 P.2d 1022, 1030 (1977) (in bank). Accord Hoyem v. Manhattan Beach City School District, 22 Cal.3d 508, 150 Cal.Rptr. 1, 585 P.2d 851 (1978); Justus v. Atchison, 19 Cal.3d 564, 139 Cal.Rptr. 97, 565 P.2d 122 (1977) (in bank). So, too, where emotional distress has not caused physical injury recovery has been denied by the Illinois Supreme Court, Neuberg v. Michael Reese Hospital & Medical Center, 60 Ill.App.3d 679, 18 Ill.Dec. 62, 377 N.E.2d 215 (1978), the Massachusetts Supreme Judicial Court, Dzionkonski v. Babineau, 380 N.E.2d 1295, (1975) the Rhode Island Supreme 179*179 Court, D'Ambra v. United States, 338 A.2d 524 (1975) and the Arizona Supreme Court, Keck v. Jackson, 593 P.2d 668 (1979) (en banc). D'Amicol v. Alvarez Shipping Co., 31 Conn.Super. 164, 326 A.2d 129 (1973), cited by the majority appears to have been reconsidered, McGovern v. Piccolo, 33 Conn.Super. 225, 372 A.2d 989 (1976) (court applies zone of danger rule and questions whether recovery permitted even for emotional distress of mother when caused by witnessing injury to child, and mother within zone of danger). In any event, D'Amicol, unlike here, involved a physical injury to the plaintiff caused by emotional distress.

The Tennessee Supreme Court continues to limit recovery to those suffering physical injury as a result of fear for one's own safety when in zone of danger. Shelton v. Russell Pipe & Foundry Co., 570 S.W.2d 861 (1978). Vermont, too, has adopted this rule. Guilmette v. Alexander, 128 Vt. 116, 259 A.2d 12 (1969). Even Washington, one of the most liberal states in awarding damages for emotional distress requires some physical symptoms of the emotional distress for recovery. Hunsley v. Giard, 87 Wash.2d 424, 553 P.2d 1096 (1976). Hawaii stands completely alone in permitting recovery in the absence of any physical harm. Leong v. Takasaki, 55 Haw. 398, 520 P.2d 758 (1974).

Thus with the overwhelming majority of these courts, I would reject permitting recovery for one whose safety was never at risk and whose emotional distress caused no physical injury.

II

Mr. Justice Nix erroneously assumes that the only causation problem which could possibly arise here is the same kind as we have already held unproblematic in Neiderman, supra. But here, to permit recovery, we must find not that physical harm can be proximately caused by mental distress but that it is possible to distinguish between that emotional distress caused appellant by witnessing the accident and that caused 180*180 by the natural grief and loss which accompanies the death of a child.

As the Court of Appeals of New York foresaw a decade ago:

"In this very case, as already noted, the eyewitness limitation provides no rational practical boundary for liability. The distance from the scene and time of notice of the accident are quite inconsequential for the shock more likely results from the relationship with the injured party than what is seen of the accident. The age of the child, always assumed to be relevant, is difficult to define or limit. Indeed, it may be callous to assess as lesser the loss or injury of an older child than a younger one. Nor can the father, the grandparents, the siblings and other relatives, or even others in loco parentis, be excluded on any acceptable rational basis, although, to be sure, distinctions can be made and verbalized. It is quite significant, too, that the now discarded caveat in the first Restatement referred to spouses as possibly being entitled to recover for shock and its consequences. Indeed, whichever way one turns in permitting a theory of recovery one is entangled in the inevitable ramifications which will not stay defined or limited. There are too many factors and each too relative to permit creation of only a limited scope of liability or duty.

"Beyond practical difficulties there is a limit to attaining essential justice in this area. While it may seem that there should be a remedy for every wrong, this is an ideal limited perforce by the realities of this world. Every injury has ramifying consequences, like the ripplings of the waters, without end. The problem for the law is to limit the legal consequences of wrongs to a controllable degree. The risks of indirect harm from the loss or injury of loved ones is pervasive and inevitably realized at one time or another. Only a very small part of that risk is brought about by the culpable acts of others. This is the risk of living and bearing children. It is enough that the 181*181 law establishes liability in favor of those directly or intentionally harmed."

Tobin v. Grossman, 24 N.Y.2d 609, 618-19, 301 N.Y.S.2d 554, 561-62, 249 N.E.2d 419, 424 (1969). See Scarf v. Koltoff, 242 Pa.Super. 294, 363 A.2d 1276 (1976) (Spaeth, J.) (quoting Tobin, supra.) In fact, one may wonder whether it is not less injurious to a parent's mental state to see the accident which causes the death of his child than never to know exactly its circumstances. Neither the opinion of Mr. Justice Nix nor the parties cite us to any medical or psychological authority on this issue. And a common sense compels the conclusion that no jury could evaluate the difference between the damages due to the emotional distress of actually witnessing the accident from those due to learning of and living with the fact that one's child suffered an accidental and violent death. This is especially true with respect to "future mental suffering" for which appellant also seeks recovery.

Mr. Justice Nix demonstrates his failure to grasp the special causation problems here present with his assertion that those courts which have limited recovery to cases where emotional distress caused some physical injury have imposed the "device" of physical injury merely to "guarantee the genuineness of the claim." The problem of isolating the damages caused by the injury complained of here is so great that without physical harm courts would be at a loss to know how to relate damages to injury:

"Despite the admitted artificiality of linking recovery for mental distress to the possibility of physical injury, this limitation does reflect the core notion of some reasonable relation or nexus between the negligent conduct and the injury sued upon."

D'Ambra, supra, 338 A.2d at 530.

"The problems in finding causation in fact should not be minimized. . . . [T]here is no escaping the problem of whether the injuries sued on should be attributed to the 182*182 shock of witnessing the accident or to the fact of the victim's death."

Id. 338 A.2d at 529, n. 5.

III

The central problem this kind of action brings before the courts is not that of the genuineness of the emotional distress, but that of rationally limiting defendant's liability. The opinion of Mr. Justice Nix disingenuously would have us believe that today we need not consider whether it is possible to limit recovery solely to plaintiff's class. If, however, there is no principled means of distinguishing this plaintiff from any other, then to decide her case is to decide the question the majority claims is not before us. One can say that question is not before us only by assuming its answer.

Mr. Justice Nix asserts that he sufficiently limits liability by narrowing recovery to "foreseeable injuries." But what constitutes a foreseeable injury is the conclusion of legal analysis, not its principal tool. Indeed there is remarkable disagreement about how to distinguish the "foreseeable" from the "unexpected." In Massachusetts one who does not witness an accident to a third party may still suffer foreseeable emotional distress from learning of the death. Dzionkonski, supra. In Hawaii, such injuries are not foreseeable. Kelly v. Kokua Sales & Supply, 56 Haw. 204, 532 P.2d 675 (1975). In Connecticut, seeing an accident will foreseeably cause emotional distress, while hearing one will not. Compare D'Amicol, supra, and McGovern, supra. In California, witnessing a negligent stillbirth does not create a foreseeable injury, Justus, supra, while coming upon an already injured victim may, Archibald v. Braverman, 275 Cal.App.2d 253, 79 Cal.Rptr. 723 (1969).

In Rhode Island a mother may recover, D'Ambra, supra, but not a close personal friend. In Arizona, anyone who was a close friend of the victim may suffer a foreseeable injury. Keck, supra. In Hawaii, not every one who is close will 183*183 suffer a foreseeable injury, but a step-grandson's emotional distress is foreseeable. This variety of rules "limiting" recovery is eloquent testimony that there is no natural non-arbitrary way to limit liability for this injury.

"A mother who sees her child suffer and die an hour, a day or even a week after an accident is no less traumatized than one who comes upon the scene `immediately' after an accident. And what of the woman who learns of her child's accidental death at some time and place distant from the scene of the accident or who learns of her cousin's death under like circumstances?"

McGovern, supra, 372 A.2d at 989.

All the injuries which courts have compensated have been, in Mr. Justice Nix's terms, "legitimate emotional responses." Even Prosser, a firm supporter of recovery in these cases, admits that foreseeability does not limit liability. He limits liability to immediate relatives suffering physical harm because he realizes some line must be drawn.

"It would be an entirely unreasonable burden on all human activity if the defendant who has endangered one man were to be compelled to pay for the lacerated feelings of every other person disturbed by reason of it, including every bystander shocked at an accident, and every distant relative or the person injured, as well as his friends."

Prosser, supra, § 54 at 334. But as Justice Joslin noted in dissent in D'Ambra, supra, limiting a defendant's liability to members of the injured person's immediate family who observed the accident is adopting a rule which

"cannot be applied even-handedly and . . . will therefore lead to admittedly arbitrary results . . . . It would . . . frustrate a basic purpose and policy underlying the scope of liability rules, namely, to achieve consistently just results by providing for even and predictable resolutions of private disputes. . . . I fear that arbitrary case-by-case determinations will result in more injustice over time than would the uniform denial of 184*184 recovery to those who do not reasonably fear for their own safety. For these reasons I agree with the great weight of authority[1] and answer the certified question in the negative."

338 A.2d at 536 (Note 1: Most of the cases can be found in Annot. 18 A.L.R.2d 220 et seq. (1951) and Annot. 29 A.L.R.3d 1337 et seq. (1970). The American Law Institute, which in 2 Restatement Torts § 313 (1934) in a caveat refrains from expressing any opinion on the question, in 2 Restatement (Second) Torts § 313 (1965), strikes that caveat and on facts substantially identical to those of the certified question substitutes a rule of nonliability.)

Mr. Justice Nix's foreseeable injury "test," adopted from Dillon, predicates recovery upon plaintiff's (1) witnessing an accident, (2) close-up (3) in which a "close" relative is injured. This test, ostensibly simple, will produce monumental problems both of application and fair limitation. If recovery is extended in the present case, can the law close its eyes to the emotional distress of bystanders who recently witnessed the traumatic amputation of a young woman's hand by a subway car? Does the majority's "rule" give us any principle at all in the following situation? Three siblings get off a bus. Two attempt to cross the street. The third begins to walk away from them down the block. A moment later he hears screeching car brakes, screams and one of his siblings yelling, "My God, Jim is dead." Does the brother have a foreseeable injury? Is there any way to judge whether his emotional distress "resulted from a direct emotional impact upon the plaintiff from the sensory and contemporaneous observance of the accident" or from "learning of the accident from others after its occurrence?" How many steps down the street distinguish immediate observation from indirect learning? As Judge Spaeth has noted, "The criteria suggested by Prosser and adopted in Dillon are not reasoned but arbitrary, for they are unsupported on any policy capable of uniform application." Scarf, supra, 242 Pa.Super. at 299-300, 363 A.2d at 1276 (footnotes omitted).

185*185 IV

Perhaps most telling is the consideration that Mr. Justice Nix's allowance of a cause of action here, in reality, permits circumvention of the Commonwealth's wrongful death statute, Act of April 15, 1851, P.L. 669, § 19; Act of April 26, 1855, P.L. 309, § 1, as amended, 12 P.S. §§ 1601 et seq. This legislation specifically provides recovery to a mother injured by the tortfeasor's negligent killing of her child.

"The law was in 1855 altered, and the right to sue was conferred on parents for the loss of children. . . . This right was a new and independent right given by positive law — not cast upon them by survivorship as for an injury to the decedent. It is for the wrong done to them."

The Pennsylvania R.R. Co. v. Zebe, 33 Pa. 318, 329 (1858). Thus, the Act of 1855 already provides a cause of action for a tortfeasor's direct injury to the plaintiff, for the wrong done to her by his negligence. As the Connecticut court in McGovern noted, to permit additional recovery where the plaintiff is closely related to the victim, "raises serious policy questions. The defendant in such a case is already liable in one tort action for wrongful death." 372 A.2d at 989.

Damages under wrongful death in Pennsylvania have always been limited to pecuniary damages and nothing is recoverable for "the mental suffering occasioned to the survivors by the death and nothing may be allowed as solatium, that being incapable of pecuniary estimate. . ." Zebe, supra at 328. Recovery here only undermines over a century's adherence to the legislative policy that compensation for damages suffered by the class of individuals to which plaintiff belongs is through the wrongful death statute.

I would affirm the order of the Superior Court affirming the order of the court of common pleas sustaining appellee's preliminary objections in the nature of a demurrer to Count 4 of appellant's complaint.

O'BRIEN, J., joins in this dissenting opinion.

[1] In Knaub v. Gotwalt, 422 Pa. 267, 220 A.2d 646 (1966) a majority of this Court was gently chided by one of its members for its conservatism in this area:

It is a matter of infinite regret to me that in the train of Progress in the Law of Humanity, Pennsylvania is a car frequently clattering close to the caboose instead of cheerfully gliding over the rails immediately behind the locomotive.

Id., 422 Pa. at 273, 220 A.2d at 648 (Musmanno, J., dissenting).

Without passing upon the legitimacy of the Musmanno observation at the time that it was made, it is nevertheless now apparent that it is appropriate for a reassessment in this area at this time in light of the major advancements in the fields of medicine and psychiatry and our changing views as to legal responsibility.

[2] The third count avers that:

19. Although she was not struck by Defendant's automobile, the Plaintiff was horrified and greatly shaken as Defendant's automobile struck and killed her sister only a few feet away from the spot on which Plaintiff was standing.

20. As a result of viewing the aforementioned accident, the Plaintiff suffered a shock to her nervous system, and sustained grievous mental pain and suffering resulting in severe depression. The Plaintiff is further tortured by nightmares of said accident and suffers from a general inability to sleep peacefully throughout the night. The residual and results of the foregoing may be permanent in nature and significance.

Brad Lee Burd has not appealed from the refusal of the Court of Common Pleas to strike the third count of the complaint. Consequently, the propriety of that decision is not before us.

[3] In his dissenting opinion, Mr. Justice ROBERTS inaccurately accuses this Court of subverting the Wrongful Death Act, Act of April 26, 1855, P.L. 309, § 1, as amended, 12 P.S. §§ 1601-04 (1953), and characterizes the present suit as one seeking solatium. The Wrongful Death Act compensates the decedent's survivors for the pecuniary losses they sustained as a result of the decedent's death. The measure of damages for the death of a minor in such an action consists of funeral and medical expenses, plus the total earnings which would have been earned by the child up to the age of 21, minus the cost of maintaining the child during this period, with the resulting amount reduced to its present worth. Swartz v. Smokowitz, 400 Pa. 109, 112-13, 161 A.2d 330 (1960). In the Fourth Count of her complaint, Mrs. Sinn does not seek such damages, rather she seeks damages for the emotional injuries she sustained as a result of witnessing the accident. These damages are not to be confused with the concept of solatium. Solatium, or solace, describes a type of monetary damages awarded the decedent's survivors to recompense them for their feelings of anguish, bereavement, and grief caused by the fact of the decedent's death. Although most civil law nations provide such damages for the bereaved relatives, it has been steadfastly rejected by the common law. See Speiser & Malawer, An American Tragedy: Damages for Mental Anguish of Bereaved Relatives in Wrongful Death Actions, 51 Tulane L.Rev. 1 (1976). Mrs. Sinn is not seeking damages to soothe her grief resulting from the loss of her child; instead, she seeks damages for the mental distress caused by the shock of actually witnessing her child being struck and killed. These damages are independent of her grief and bereavement. Both solatium and wrongful death actions are intended to compensate the decedent's survivors for the loss — affectional and pecuniary, respectively — they incurred as a result of the death. By contrast, in the present action Mrs. Sinn seeks recompense for an independent injury inflicted upon her by the defendant: the negligent infliction of mental distress.

[4] For the development of this rule in Pennsylvania, see 39 Temp.L.Q. 229 (1966).

[5] The reason for this position was the grave concern that "[i]f we permitted recovery in a case such as this, our Courts would be swamped by a virtual avalanche of cases for damages for many situations and cases hitherto unrecoverable in Pennsylvania." Knaub v. Gotwalt, 422 Pa. 267, 271, 220 A.2d 646, 647 (1966). See, Bosley v. Andrews, 393 Pa. 161, 168-69, 142 A.2d 263, 266-67 (1958).

[6] cases involving negligent conduct toward third persons, the "field of danger" test is clearly arbitrary in at least one instance. If plaintiff witnessed the negligent infliction of an injury to a member of his or her immediate family and suffered emotional harm as a result, to deny recovery merely because plaintiff was not subjected to the same risk of injury as his or her spouse, child or parent is unjust. A severe emotional injury to plaintiff is clearly foreseeable under such circumstances, and it therefore would not be an unreasonable extension of defendant's duty of care to impose liability. Comment, 1977 Wisc.L.Rev. 1089, 1108 (1977) (footnotes omitted).

[7] When the Restatement (Second) of Torts was adopted in 1965, the American Law Institute eliminated a caveat to section 313 of the original Restatement of Torts suggesting that a parent or spouse might be entitled to recover for harm suffered as a result of injury to a child or spouse. The 1965 revision recognized that the courts had almost uniformly refused to allow such recoveries. "[D]espite the feeling of a number of those present at the Institute meeting, that the situation of a mother who sees her child negligently killed before her eyes is one in which recovery would be justified," Restatement (Second) Torts, § 313, Appendix at 11, the caveat was deleted and replaced by section 313(2).

Since 1965, a number of courts have considered this question and have allowed a parent or spouse to recover even when the plaintiff was beyond the zone of danger. See, e.g., Dziokonski v. Babineau, ___ Mass. ___, 380 N.E.2d 1295 (1978) (mother suffered fatal heart attack upon coming to the scene of where her minor daughter had been struck by an automobile moments earlier, father suffered heart attack upon learning of his wife's death and his daughter's injuries); D'Ambra v. United States, 338 A.2d 524 (R.I. 1975) (mother saw her four-year-old son struck and killed by mail truck); Leong v. Takasaki, 55 Haw. 398, 520 P.2d 758 (1974) (ten-year-old boy saw step-grandmother struck and killed by an automobile); D'Amicol v. Alvarez Shipping Co., Inc., 31 Conn.Sup. 164, 326 A.2d 129 (Super.Ct. 1973) (mother and father saw their child killed in an automobile accident); Toms v. McConnell, 45 Mich.App. 647, 207 N.W.2d 140 (1973) (mother saw her nine-year-old daughter struck and killed by a truck); Dillon v. Legg, 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912, 29 A.L.R.3d 1316 (1968) (mother saw her daughter struck and killed by an automobile).

[8] The wisdom and the justice of cutting off a bystander's potential recovery on a per se basis simply because the person was situated beyond the zone of danger has been soundly criticized. See, e.g., 43 N.Y.U.L.Rev. 1252, 1253 (1968) ("instead of weighing the justifications for allowing or denying recovery, most courts merely assert that in such cases the defendant has no duty to the plaintiff"); Comment, Negligently Inflicted Mental Distress: The Case for an Independent Tort, 59 Geo.L.J. 1237, 1245 (1971).

[9] As late as 1966, our decisions were blindly applying this assumption with talismanic fervor and without supporting citations to scientific or medical authority. See, e.g., Knaub v. Gotwalt, 422 Pa. 267, 271-72, 220 A.2d 646, 647 (1966), quoting Bosley v. Andrews, 393 Pa. 161, 168-69, 142 A.2d 263 (1958) (also devoid of supporting citations).

Professor David Leibson wrote that this assumption:

. . . was certainly a product of its time. It was a time when medical science, especially that branch concerned with the study of emotions, was in its infancy. The courts regarded with suspicion complainants who experienced no physical injuries but who maintained they suffered grievous emotional damage. At that time, there was no assurance that psychiatric study had become sophisticated enough to satisfactorily establish a cause and effect relationship between the injury and the incident which allegedly gave rise to it. Indeed, courts were reluctant even to recognize the existence of damages in such a case because, at that time, there was no universal acceptance of the fact that emotional problems could be triggered by a single event and that, with care and treatment, they could be cured. The medical profession itself gave such an idea little thought. For a long time, insanity and other emotional illnesses were considered to be the result of one's own sins.

Leibson, Recovery of Damages for Emotional Distress Caused By Physical Injury to Another, 15 J. Family L. 163, 163-64 (1976-77).

[10] Tobin v. Grossman, 24 N.Y.2d 609, 613, 301 N.Y.S.2d 554, 556, 249 N.E.2d 419 (1969) ("mental traumatic causation can now be diagnosed almost as well as physical traumatic causation"). See also, Leong v. Takasaki, 55 Haw. 398, 520 P.2d 758, 766-67 (1974); Leibson, supra note 9 at 164, 190-209; Simons, Psychic Injury and the Bystander: The Transcontinental Dispute Between California and New York, 51 St. John's L.Rev. 1, 22-29 (1976); Comment, Negligently Inflicted Mental Distress, supra note 8, at 1248-63; Cantor, Psychosomatic Injury, Traumatic Psychoneurosis, and Law, 6 Cleve.Mar.L.Rev. 428, 430-37; Smith, Relations of Emotions to Injury and Disease, 30 Va.L.Rev. 193, 303-04 (1943); Magruder, Mental and Emotional Disturbance in the Law of Torts, 49 Harv.L.Rev. 1033 (1936).

[11] A contrary position would not only exhibit a cynical lack of faith in the entire judicial system, but would also penalize the honest because of the potential activities of the dishonest. The overwhelming trend today is to reject potential fraud as a ground for denying relief.

Simmons, supra, note 10, at 13.

One student of this field has written that:

"Any rule which seeks to bar fraud incidently by withholding legal protection from all claims, just and unjust, employs a medieval technique which, however satisfying it may be to defendants and defense attorneys, is scarcely in keeping with the acknowledged function of a modern legal system."

Bystander's Recovery for Negligently Inflicted Mental Distress, 29 Ark.L.Rev. 562, 564-65 (1976), quoting Leflar & Sanders, Mental Suffering and Its Consequences, 7 Univ.Ark.L.Schl.Bul. 43, 60 (1939). See also, Leibson, supra note 9, at 174; Smith, supra note 10, at 303-04.

[12] Compare, Tobin v. Grossman, 24 N.Y.2d 609, 615, 301 N.Y.S.2d 554, 558, 249 N.E.2d 419, 422 (1969) (denying recovery) ("This court has rejected as a ground for denying a cause of action that there will be a proliferation of claims. It suffices that if a cognizable wrong has been committed that there must be a remedy, whatever the burden of the courts."), with Dillon v. Legg, 68 Cal.2d 728, 69 Cal.Rptr. 72, 77 n.3, 441 P.2d 912, 917 n.3 (1968) (allowing recovery) ("we point out that courts are responsible for dealing with cases on their merits, whether there be few suits or many; the existence of a multitude of claims merely shows society's pressing need for legal redress.") In Toms v. McConnell, 45 Mich.App. 647, 207 N.W.2d 140, 145 (1973) (allowing recovery), the court did not consider this argument to be worthy of discussion. See also, D'Ambra v. United States, 114 R.I. 643, 338 A.2d 524, 530 (1975) (allowing recovery).

The commentators have agreed that this argument is without merit. One writer noted that "those courts which have relaxed their limitations on recovery of this type have not experienced any substantial increase in litigation." Negligent Infliction of Mental Distress: Reaction to Dillon v. Legg in California and Other States, 25 Hastings L.J. 1248, 1250 (1974). See also, Simons, supra note 10, at 12-13; Comment, supra note 8, at 1244-45.

California has allowed bystanders to recover since the 1968 Dillon opinion. In that time only two reported decisions have found in favor of the plaintiff and in both cases only to the extent of reversing summary judgment against them. See Mobaldi v. Board of Regents, 55 Cal.App.3d 573, 127 Cal.Rptr. 720 (1976) (child died in foster mother's arms after hospital negligently administered wrong dosage of medicine); Archibald v. Braverman, 275 Cal.App.2d 253, 79 Cal. Rptr. 723 (1969) (mother saw child's mangled arm immediately after explosion caused by gunpowder negligently sold to him). It would therefore appear that the argument does not offer a legitimate consideration and that the anticipated consequences are grossly overstated.

[13] Before we proceed to deny a cause of action on the ground of public policy, the following cautionary statement should be given careful consideration:

. . . it must be borne in mind that the general theory upon which the common law is based is that there is a remedy for every wrong, and in any case in which A is shown to have committed a wrongful act as a proximate result of which B has suffered damage, there is a very strong presumption in favor of a right of action by B against A. If B's right to maintain such an action is denied on the ground of public policy, such policy must be made very clearly to appear and must be strongly grounded on considerations of public welfare. Throckmorton, Damages for Fright, 34 Harv.L.R. 260, 264 (1920-21).

[14] The D'Ambra case was originally brought in the United States District court for the District of Rhode Island under the Federal Tort Claims Act. The D'Ambras, husband and wife, sought to recover for injuries sustained by Mrs. D'Ambra as a result of shock and physical manifestations thereof she suffered from witnessing her infant son being struck and killed by a negligently driven United States mail truck. Chief Judge Pettine denied the government's motion to dismiss for failure to state a cause of action, D'Ambra v. United States, 354 F.Supp. 810 (D.R.I. 1973). The United States Court of Appeals affirmed the subsequent finding of liability but remanded for a recalculation of damages, D'Ambra v. United States, 481 F.2d 14 (1st Cir. 1973). The First Circuit subsequently certified the question of liability to the Supreme Court of Rhode Island which concurred in the imposition of liability, D'Ambra v. United States, 338 A.2d 525 (R.I. 1975). The case was then returned to the federal courts and the First Circuit again affirmed the trial court's finding of liability, D'Ambra v. United States, 518 F.2d 275 (1st Cir. 1975).

[15] The issue before the Tobin court was whether a mother could recover for her own mental and physical injuries caused by shock and fear for her two-year-old child who suffered serious injuries when he was struck by a negligently operated automobile. The accident did not occur in the mother's presence; she was inside a neighbor's home, outside of which the momentarily unattended child was struck, and the mother did not see the accident. She did hear the screech of brakes, note the absence of her child, went instantly outside, and saw him lying on the grounds. 24 N.Y.2d at 612, 301 N.Y.S.2d at 556. It should be noted that the facts of the case presently before us are markedly different in that Mrs. Sinn actually saw the defendant's vehicle strike and kill her daughter. The Tobin Court, in denying recovery by third parties under any circumstances, did not distinguish between these two distinct factual settings. Our decision today is limited solely to those cases in which the plaintiff alleges psychic injury as a result of actually witnessing the defendant's negligent act.

[16] The Tobin Court argued that once the injury to the mother-third party is recognized, it would be extended to other relatives "and even to sensitive caretakers." 24 N.Y.2d at 616, 301 N.Y.S.2d at 559.

[17] The New York court in Tobin posited this problem in the following manner:

The final and most difficult factor is any reasonable circumscription, within tolerable limits required by public policy, of a rule creating liability. Every parent who loses a child or whose child of any age suffers an injury is likely to sustain grievous psychological trauma, with the added risk of consequential physical harm. Any rule based solely on eyewitnessing the accident could stand only until the first case comes along in which the parent is in the immediate vicinity but did not see the accident. Moreover, the instant advice that one's child has been killed or injured, by telephone, word of mouth, or by whatever means, even if delayed, will have in most cases the same impact. The sight of gore and exposed bones is not necessary to provide special impact on a parent.

Tobin v. Grossman, 24 N.Y.2d at 617, 301 N.Y.S.2d at 560, 249 N.E.2d at 423.

The absolute bar to recovery mandated by the Tobin decision has been severely criticized. This criticism is well reflected in Prof. Simons' plea that:

. . . If a line of circumscription is to be drawn for the sake of public policy, or even in the application of traditional tort principles, it is not more reasonable and humane to draw it somewhere other than at the point where no recovery is allowed simply because drawing the line elsewhere is difficult? . . . .

Simons, Psychic Injury and the Bystander, supra, note 10, at 21.

[18] We note that other courts considering the question of bystander recovery have required the presence of the witness-mother at the accident site also to be reasonably foreseeable to the defendant. See, e.g. D'Ambra v. United States, 354 F.Supp. at 820. Cf., Wallace v. Coca-Cola Bottling Plants, Inc., 269 A.2d 117, 121 (Me. 1970). We further note that the Rhode Island Supreme Court rejected the requirement of plaintiff's foreseeable presence. see, D'Ambra v. United States, 338 A.2d at 531, and that the Dillon case and the majority of jurisdictions following that case do not impose such a requirement. It is foreseeable that third parties will witness an accident. The legitimacy of the witness' emotional response to the accident is properly analyzed using the test we set forth in the above text. Because we believe that our test of the foreseeability of plaintiffs injuries is sufficient to reasonably circumscribe the area of defendant's liability, and because the presence at or near the accident scene of third parties is reasonably foreseeable, we do not consider necessary a separate test of foreseeability of presence.

[19] The Supreme Court of Washington also has employed the three Dillon factors. In Schurk v. Christensen, 80 Wash.2d 652, 497 P.2d 937 (1972) (en banc), that court denied recovery by a mother who claimed mental distress arising out of being informed that her 5-year-old daughter had been sexually molested by a teenage boy over a period of months.

The Australian Capital Territory enacted a statute pre-dating Dillon but setting forth the principles enunciated in that case. Law Reform (Misc. Provisions) Ordinance 1955, I Laws of the Australian Capital Territory, part vii, § 24(1) (1960). This statute was quoted in Speiser & Malawer, An American Tragedy: Damages for Mental Anguish of Bereaved Relatives in Wrongful Death Actions, 51 Tulane L.Rev. 1, 13 n. 53 (1976).

[20] The Tobin court stated that:

The risks of indirect harm from the loss or injury of loved ones is pervasive and inevitably realized at one time or another. Only a very small part of that risk is brought about by the culpable acts of others. This is the risk of living and bearing children. It is enough that the law establishes liability in favor of those directly or intentionally harmed.

24 N.Y.2d at 619, 301 N.Y.S.2d at 561-62, 249 N.E.2d at 424. (emphasis added).

We are not the only court to reject this harsh view. See D'Ambra v. United States, 354 F.Supp. 810, 821 (D.R.I. 1973).

[21] As stated earlier, see note 15, we need not here consider the case where the mother is notified of the accident by another. Nor do we consider the situation where the relationship between the plaintiff-bystander and the accident victim is more remote. These are questions which may properly be left for another day. Jurisprudentially, the remote and unexpected can best be excluded by reaching these issues on a more appropriate record.

[1] Comment c: "The rule stated in this Section applies to all forms of emotional disturbance, including temporary fright, nervous shock, nausea, grief, rage, and humiliation. The fact that these are accompanied by transitory, non-recurring physical phenomena, harmless in themselves, such as dizziness, vomiting, and the like, does not make the actor liable where such phenomena are in themselves inconsequential and do not amount to any substantial bodily harm. On the other hand, long continued nausea or headaches may amount to physical illness, which is bodily harm; and even long continued mental disturbance, as for example in the case of repeated hysterical attacks, or mental aberration, may be classified by the courts as illness, notwithstanding their mental character. This becomes a medical or psychiatric problem, rather than one of law."

[2] And as the majority notes, even where physical harm is caused by emotional distress, the Restatement takes a position against recovery where the distress is not for one's own physical safety, but is for one's child's.

"Emotional Distress Unintended

* * * * * *

(2) The rule [of liability] in Subsection (1) has no application to illness or bodily harm of another which is caused by emotional distress arising solely from harm or peril to a third person, unless the negligence of the actor has otherwise created an unreasonable risk of bodily harm to the other."

Restatement (Second) Torts, supra, § 313.

402*402 Before BELL, C.J., JONES, COHEN, EAGEN, O'BRIEN, ROBERTS and POMEROY, JJ.

Jerrold V. Moss, for appellant.

Harry W. Kurtzman, with him Carl K. Zucker, for appellee.

OPINION BY MR. JUSTICE ROBERTS, January 9, 1970:

Appellant, Harry Niederman, alleges that on November 4, 1962 he was walking with his son at the corner of 15th and Market Streets in Philadelphia. At that time, appellant's complaint asserts, appellee was driving a motor vehicle in a reckless and negligent manner as a result of which the automobile skidded onto the sidewalk and destroyed or struck down a fire hydrant, a litter pole and basket, a newsstand and appellant's son, who at that time was standing next to appellant. Almost immediately after this destructive path was cut by appellee's car, appellant claims that he suffered severe chest pain and that upon examination in the hospital, where he was confined for five 403*403 weeks, appellant was diagnosed to have sustained acute coronary insufficiency, coronary failure, angina pectoris, and possible myocardial infarction. Consequently, appellant sought recovery from appellee for both these severe disabilities and the accompanying shock and mental pain.

Appellant's complaint was reluctantly dismissed on preliminary objections for failing to state a cause of action under the "impact rule" which provides that there can be no recovery for the consequences of fright and shock negligently inflicted in the absence of contemporaneous impact. Appellant admitted that the careering automobile had never struck his person. The judge noted "The impact rule will, no doubt, eventually be rejected as was the formerly well-entrenched rule of charitable immunities. It is regrettable that Harry Niederman, the plaintiff in this action, may not be afforded the opportunity to prove that his injuries are just as real, just as painful, just as disabling as if he had been struck physically by defendant's motor vehicle.. . . However, we are bound by the law as set forth by the Supreme Court."

Today the cows come home.^[1] We decide that on the record before us, appellant may go to trial and if he proves his allegations, recovery may be had from a negligent defendant, despite the fact that appellant's injuries arose in the absence of actual impact. "It is fundamental to our common law system that one may seek redress for every substantial wrong. `The best statement of the rule is that a wrongdoer is responsible for the natural and proximate consequences of his misconduct. . . .'" Battalla v. State, 10 N.Y. 2d 237, 240, 219 N.Y.S. 2d 34, 36, 176 N.E. 2d 729, 730 (1961). By our holding today Pennsylvania proceeds along the path recently followed by our neighboring jurisdictions,^[1] see 404*404 Falzone v. Busch, 45 N.J. 559, 214 A. 2d 12 (1965); Robb v. Pennsylvania Railroad Company, 210 A. 2d 709 (Del. 1965); Battalla v. State, supra, and removes this ancient roadblock to appellant's recovery.

Were we to do otherwise, appellant and those who are severely injured in a like manner would be barred from recovery in our courts. But the gravity of appellant's injury and the inherent humanitarianism of our judicial process and its responsiveness to the current needs of justice dictate that appellant be afforded a chance to present his case to a jury and perhaps be compensated for the injury he has incurred. The Restatement has adopted a view in harmony with this approach: "§ 436 . . . (2) If the actor's conduct is negligent as creating an unreasonable risk of causing bodily harm to another otherwise than by subjecting him to fright, shock, or other similar and immediately emotional disturbance, the fact that such harm results solely from the internal operation of fright or other emotional disturbance does not protect the actor from liability." Restatement (Second), Torts § 436(2).

We believe that it is not sufficient to perpetuate the old impact rule simply in the name of precedent. Each and every objection raised in the past which would preclude appellant in this case from going to trial can now be answered effectively and persuasively.

An analysis of the prior case law indicates that there have been three basic arguments which in the past would have defeated appellant. The first deals 405*405 with medical science's difficulty in proving causation between the claimed damages and the alleged fright. The second involves the fear of fraudulent or exaggerated claims. Finally, there is the concern that such a rule will precipitate a veritable flood of litigation. See, e.g., Knaub v. Gotwalt, 422 Pa. 267, 220 A. 2d 646 (1966) (not the view of a majority of the court); Bosley v. Andrews, 393 Pa. 161, 142 A. 2d 263 (1958); Huston v. Freemansburg Borough, 212 Pa. 548, 61 Atl. 1022 (1905); Ewing v. Pittsburgh Railway Co., 147 Pa. 40, 23 Atl. 340 (1892).

The first objection has been variously stated but the quotation set out below is representative of some earlier judicial sentiments. "In most cases, it would be impossible for medical science to prove that these subjective symptoms could not possibly have resulted from or been aggravated or precipitated by fright or nervous tension or nervous shock or emotional disturbance or distress . . . . Medical science, we repeat, could not prove that these could not have been caused or precipitated, or aggravated by defendant's alleged negligent act." Bosley v. Andrews, 393 Pa. at 168-69, 142 A. 2d at 267. (Emphasis supplied.) While we agree that this might have been an appropriate conclusion because of the lack of sophistication in the medical field when the impact doctrine was first announced in 1888,^[2] it would presently be inappropriate for us to ignore all of the phenomenal advances medical science has achieved in the last eighty years. Today diseases of 406*406 the heart, for example, are comprehended much more fully (to the extent that open heart surgery is almost an everyday occurrence), and the effects of hyperemotional states of the human body no longer are shrouded in mystery or myth.

New equipment and research, improved education and diagnostic techniques, and an increased professional understanding of disease in general require us now to give greater credit to medical evidence. Other jurisdictions have also recognized that this advancement in the medical arts should and could be legitimately reflected in changes in the legal field. See, e.g., Battalla v. State, 10 N.Y. 2d 237, 219 N.Y.S. 2d 34, 176 N.E. 2d 729 (1961) ("we must . . . rely to an extent on the contemporary sophistication of the medical profession"); Robb v. Pennsylvania Railroad Company, 210 A. 2d 709, 712 (Del. 1965) ("the early difficulty in tracing a resulting injury back through fright or nervous shock has been minimized by the advance of medical science"). Finally, The American Law Institute through a deletion of a caveat from one of its comments,^[3] has expressed a similar view.

The logical invalidity of this objection to medical proof can be demonstrated further by noting that the rule has only been applied where there is absolutely no impact whatsoever. Once there is even the slightest 407*407 impact, it has been held that the plaintiff can recover for any damages which resulted from the accompanying fright, even though the impact had no causal connection with the fright-induced injuries. The rule has been stated: "However, where, as here, a plaintiff sustains bodily injuries, even though trivial or minor in character, which are accompanied by fright or mental suffering directly traceable to the peril in which the defendant's negligence placed the plaintiff, then mental suffering is a legitimate element of damages." Potere v. Philadelphia, 380 Pa. 581, 589, 112 A. 2d 100, 104 (1955).

It appears completely inconsistent to argue that the medical profession is absolutely unable to establish a causal connection in the case where there is no impact at all, but that the slightest impact (e.g., a bruised elbow and sprained ankle in Potere)^[4] suddenly bestows upon our medical colleagues the knowledge and facility to diagnose the causal connection between emotional states and physical injuries. It can easily be urged that recent advances in medical science have bestowed this ability upon physicians; but it is illogical to argue that the presence of some slight injury has accomplished the same effect! As the Supreme Court of our neighboring state of Delaware recently said: ". . . the line of cases permitting recovery for serious injuries resulting from fright, where there has been but a trivial impact in itself causing little or no injury, demonstrates that there is no insuperable difficulty in 408*408 tracing causal connection between the wrongdoing and the injury via the fright." Robb v. Pennsylvania Railroad Company, 210 A. 2d at 712.

Finally, even if we assume arguendo that a great deal of difficulty still remains in establishing the causal connection, this still does not represent sufficient reason to deny appellant an opportunity to prove his case to a jury. There is no reason to believe that the causal connection involved here is any more difficult for lawyers to prove or for judges and jurors to comprehend than many others which occur elsewhere in the law. "We realize that there may be difficulties in determining the existence of a causal connection between fright and subsequent physical injury and in measuring the extent of such injury. However, the problem of tracing a causal connection from negligence to injury is not peculiar to cases without impact and occurs in all types of litigation . . . in any event, difficulty of proof should not bar the plaintiff from the opportunity of attempting to convince the trier of fact of the truth of her claim." Falzone v. Busch, 45 N.J. 559, 566, 214 A. 2d 12, 15-16 (1965). We recognize the recent view of the New Jersey Supreme Court as representative of current jurisprudence.

The second major objection includes the fear of fictitious injuries and fraudulent claims. It has been expressed with varying degrees of politeness: first, in Huston v. Freemansburg Borough, 212 Pa. 548, 550-51, 61 Atl. 1022, 1023 (1905), the Court indicated its lack of respect for claims like this by observing: "In the last half century, the ingenuity of counsel, stimulated by the cupidity of clients and encouraged by the prejudices of juries, has expanded the action for negligence.. . . It requires but a brief judicial experience to be convinced of the large proportion of exaggeration and even of actual fraud in the ordinary action for physical injuries from negligence, and if we opened the door 409*409 to this new invention the result would be great danger, if not disaster to the cause of justice." In recent cases, that concern has been expressed in a more charitable manner but the same denial of recovery for severe injuries has been the result. "For every wholly genuine and deserving claim, there would likely be a tremendous number of illusory or imaginative or `faked' ones." Bosley v. Andrews, 393 Pa. at 169, 142 A. 2d at 267.

The charge that fraudulent claims will arise is not unique to this Commonwealth. Every court that has been confronted with a challenge to its impact rule has been threatened with the ominous spectre that an avalanche of unwarranted, trumped-up, false and otherwise unmeritorious claims would suddenly cascade upon the courts of the jurisdiction. The virtually unanimous response has been that (1) the danger of illusory claims in this area is no greater than in cases where impact occurs and that (2) our courts have proven that any protection against such fraudulent claims is contained within the system itself — in the integrity of our judicial process, the knowledge of expert witnesses, the concern of juries and the safeguards of our evidentiary standards.

For the first proposition, the New Hampshire Supreme Court provides us with significant support. "From the viewpoint of analogy, allowance for mental pain, and for injury to mind and nerve as well as body, is given as items of damage in all cases of liability for personal injury where there is impact. It would seem practically as easy to pretend them and as difficult to disprove them in such cases as in cases where there is no impact and fright is the intervening agency of transmittal." Chiuchiolo v. New England Wholesale Tailors, 150 Atl. 540, 543 (N.H. 1930). See Savard v. Cody Chevrolet, Inc., 234 A. 2d 656, 659 (Vt. 1967) (quoting Chiuchiolo). In addition, it is abundantly clear that in the Potere case, supra, where the injury was slight 410*410 and unrelated, the opportunity for fraud was just as great; yet in that situation recovery was allowed. See Battalla v. State, 10 N.Y. 2d 237, 241, 219 N.Y.S. 2d 34, 37, 176 N.E. 2d 729, 731 (1961) ("fraudulent accidents and injuries are just as easily feigned in the slight-impact cases").

Furthermore, we are unable to accept the proposition that our courts and the judicial system in general cannot deal with fraudulent claims when they arise. Factual, legal, and medical charlatans are unlikely to emerge from a trial unmasked. This same thought has been given compelling exposition in recent opinions by the highest courts of our neighboring states, Delaware,^[5] New Jersey,^[6] and New York.^[7] We, of course, join these and other authorities^[8] in rejecting as patently fallacious 411*411 the argument that would bar actions such as appellant's because some other litigants might present false or feigned claims. "Public policy requires the courts, with the aid of the legal and medical professions, to find ways and means to solve satisfactorily the problems thus presented — not expedient ways to avoid them." Robb v. Pennsylvania Railroad Company, 210 A. 2d at 714.

The last argument urged by the proponents of the impact rule is that: "If we permitted recovery in a case such as this, our Courts would be swamped by a virtual avalanche of cases for damages for many situations and cases hitherto unrecoverable in Pennsylvania." Knaub v. Gotwalt, 422 Pa. at 271, 220 A. 2d at 647. However, it is our view that this argument is currently refuted on two grounds. First, it is not at all clear that the flood of litigation has occurred in states without the impact rule. "The truth of the matter is that the feared flood tide of litigation has simply not appeared in states following the majority rule allowing recovery of psychic injuries without impact. The volume of litigation has been heaviest in states following the Mitchell doctrine and its impact rule. See McNiece, Psychic Injury and Tort Liability in New York, 24 St. John's L. Rev. 132 (1949) . . . ." Lambert, Tort Liability for Psychic Injuries, 41 Boston U.L. Rev. at 592. Even those who do not believe that the amount of litigation is greater in jurisdictions with the impact rule, maintain that there has been no increase 412*412 in those states which have abandoned this doctrine. Okrina v. Midwestern Corp., 165 N.W. 2d 259, 263 (Minn. 1969) ("there is no indication that it [the abandonment of the impact rule] has either spawned a flood of litigation or bred a rash of fraudulent claims since its adoption in 1892"); see Smith, Relation of Emotions to Injury and Disease, 30 Va. L. Rev. 193 (1944); Comment, Injuries From Fright Without Contact, 15 Cleve.-Mar. L. Rev. at 336 (1966).

Secondly, and more compelling than an academic debate over the apparent or real increases in the amount of litigation, is the fundamental concept of our judicial system that any such increase should not be determinative or relevant to the availability of a judicial forum for the adjudication of impartial individual rights. "It is the business of the law to remedy wrongs that deserve it, even at the expense of a `flood of litigation'; and it is a pitiful confession of incompetence on the part of any court of justice to deny relief upon the ground that it will give the courts too much work to do." Prosser, Intentional Infliction of Mental Suffering: A New Tort, 37 Mich. L. Rev. 874 (1939). We obviously do not accept the "too much work to do" rationale. We place the responsibility exactly where it should be: not in denying relief to those who have been injured, but on the judicial machinery of the Commonwealth to fulfill its obligation to make itself available to litigants. Who is to say which class of aggrieved plaintiffs should be denied access to our courts because of speculation that the workload will be a burden? Certainly this Court is unwilling to allow such considerations to influence a determination whether a class of litigants will be denied or permitted to seek adjudication of its claims. See Robb v. Pennsylvania Railroad Company, 210 A. 2d at 714 (Del. 1965) ("if there be increased litigation, the courts must willingly cope with the task"); Falzone v. Busch, 214 A. 2d at 16 (N.J. 1965) ("the proper remedy is an 413*413 expansion of the judicial machinery, not a decrease in the availability of justice"); Battalla v. State, 176 N.E. 2d at 731 (N.Y. 1961) ("it is the duty of the courts to willingly accept the opportunity to settle these disputes").

. . .

We have carefully examined the arguments in support of the old impact rule. It seems clear to us that even if these rationales may have had validity in earlier years, in 1969 continued adherence to the rule makes little sense. We believe that our analysis of the underpinnings of the impact doctrine proves that they are now so weak and that the arguments opposing the doctrine are so strong that an overruling of earlier cases is compelled.

We today choose to abandon the requirement of a physical impact as a precondition to recovery for damages proximately caused by the tort in only those cases like the one before us where the plaintiff was in personal danger of physical impact because of the direction of a negligent force against him and where plaintiff actually did fear the physical impact. Since appellant's complaint alleges facts which if proven will establish that the negligent force was aimed at him and put him in personal danger of physical impact, and that he actually did fear the force, this case must proceed to trial.

The order of the Court of Common Pleas of Philadelphia County is reversed and appellee's preliminary objections are dismissed.

DISSENTING OPINION BY MR. CHIEF JUSTICE BELL:

The Majority too often forget that an emotionally appealing or heart-rending claim often produces bad law^[*] and sets a dangerous precedent.

414*414 Pandora's Box

The majority Opinion commits three tremendous and grievous errors in overruling Pennsylvania's "impact rule." The first regrettable and disastrous error is that they open Pandora's famous Box, out of which will flow a multiplicity of trespass suits for personal injuries and/or diseases. These will include the most fictitious or false or exaggerated claims that the imagination can conceive — based upon (as the Majority assert) the direction of a negligent force so near a plaintiff that he feared a dangerous physical impact.

A Guessing Game

The second major error of the Majority is that they not only substitute a "medical guessing game" for Pennsylvania's clear and definite and well-established "impact rule," but add a "Judicial guessing game." Few writers^[*] and few States can agree on a clear and definite formula for recovery, and the Majority itself cannot formulate a clear, specific, definite and boundarized rule or standard for recovery in this so-called "impact" field, which the Majority now abolish. It is difficult to imagine stronger reasons for not abandoning Pennsylvania's clear and well-established impact rule than the jumble of diverse, indefinite and farfetched views set forth in the majority Opinion.

415*415 Stare Decisis

The third major error of the Majority is that they deal another fatal or near-fatal blow to stare decisis. Once again a majority of the present Supreme Court has cavalierly buried or ignored the basic principle and the fundamental precept upon which the House of Law was built and maintained. Upon this Rock of Gibraltar, all Judges and all public officials, as well as all the people of Pennsylvania, can see and know and rely on their respective rights, their powers, their duties, their obligations and limitations. It is regrettable to be compelled to say that a decision of the present Court of Pennsylvania is good "for this day and this train only." What a catastrophe, and what a mockery of Law and of Justice!

What this Court said was well-established and sound law as recently as 1966 has today been rendered by the Majority obsolete and worthless by "all of the phenomenal advances medical science has achieved in the last 80 years." Can anything be more ridiculous than the argument that because of the phenomenal advances of medical science in the last 80 years something has miraculously come to light in this particular medical field in the last three years?

In Knaub v. Gotwalt, 422 Pa. 267, 220 A. 2d 646 (1966), we said (page 270): "`The rule is long and well established in Pennsylvania that there can be no recovery of damages for injuries resulting from fright or nervous shock or mental or emotional disturbances or distress, unless they are accompanied by physical injury or physical impact: Koplin v. Louis K. Liggett Co., 322 Pa. 333, 185 A. 744; Ewing v. Pittsburgh C. & St. L. Ry. Co., 147 Pa. 40, 23 A. 340; Fox v. Borkey, 126 Pa. 164; Huston v. Freemansburg Borough, 212 Pa. 548, 61 A. 1022; Morris v. Lackawanna and Wyoming Valley Railroad Co., 228 Pa. 198, 77 A. 445; 416*416 Howarth v. Adams Express Company, 269 Pa. 280, 112 Atl. 536; Hess v. Philadelphia Transportation Co., 358 Pa. 144, 56 A. 2d 89; Potere v. Philadelphia, 380 Pa. 581, 112 A. 2d 100; Gefter v. Rosenthal, 384 Pa. 123, 119 A. 2d 250.' Bosley v. Andrews, 393 Pa. 161, 164, 142 A. 2d 263.^[*] This rule was reaffirmed as recently as Cucinotti v. Ortmann, 399 Pa. 26, 159 A. 2d 216 [1960]."

In Cucinotti v. Ortmann, 399 Pa., supra, Justice COHEN, speaking for all the members of this Court except Justice MUSMANNO, said (page 29): "It is the well-settled rule in Pennsylvania that there can be no recovery of damages for unintentional injuries resulting from fright or nervous shock or mental or emotional disturbances or distress, unless they are accompanied by physical injury or physical impact: Bosley v. Andrews, 393 Pa. 161, 142 A. 2d 263 (1958); Koplin v. Louis K. Liggett Co., 322 Pa. 333, 185 Atl. 744 (1936); Ewing v. Pittsburgh C. & St. L. Ry. Co., 147 Pa. 40, 23 Atl. 340 (1892)."

Mr. Justice OLIVER WENDELL HOLMES repeatedly and eloquently emphasized that "the life of the law has not been logic; it has been [human] experience." Holmes, The Common Law. In Homans v. Boston El. Ry. Co., 180 Mass. 456, 62 N.E. 737, that Court, speaking through Justice HOLMES, reaffirmed the so-called "impact rule," and aptly said "that [it] prevents a recovery for visible illness resulting from nervous shock alone."

In Huston v. Freemansburg Borough, 212 Pa. 548, 61 Atl. 1022, Chief Justice MITCHELL, speaking for a unanimous Court, stated there can be no recovery of damages for fright or other mental suffering unconnected with physical injury, and said: "It requires but 417*417 a brief judicial experience to be convinced of the large proportion of exaggeration and even of actual fraud in the ordinary action for physical injuries from negligence, and if we opened the door to this new invention the result would be great danger, if not disaster to the cause of practical justice:^[*] Spade v. Lynn & Boston R.R. Co., 168 Mass. 285; Mitchell v. Rochester Ry. Co., 151 N.Y. 107. If, therefore, the question were new, we should see no reason to reach a different conclusion. But it is settled for this State, and is no longer open to discussion. . . ."

This Court has iterated and reiterated this well-established rule or principle of Stare Decisis based on Judicial experience numerous times before and since Huston, 212 Pa. (1905),^[**] supra.

In Burtt Will, 353 Pa. 217, 44 A. 2d 670, the Court said (pages 231, 232): "The doctrine of stare decisis still prevails in Pennsylvania. . . . This Court has always rigidly adhered to the rule of stare decisis. . . . All of the cases reciting our policy to adhere strictly to the rule of stare decisis need not be collected and reviewed. What was said by us in a few of the latest cases will suffice: Mr. Chief Justice MAXEY said in Monongahela St. Ry. v. Phila. Co. et al., 350 Pa. 603, 616, 39 A. 2d 909, `The doctrine of stare decisis is recognized and applied by the courts of this Commonwealth. . .'; and in Davis v. Pennsylvania Co., etc., 337 Pa. 456, at 464, 12 A. 2d 66: `An interpretation of law consistently followed by an appellate court over so long a period that it has become fundamentally imbedded 418*418 in the common law of the Commonwealth should not be changed except through legislative enactment, which is a remedy always available and the proper one under our scheme of government. Otherwise the law would become the mere football of the successively changing personnel of the court, and "the knowne certaintie of the law", which Lord Coke so wisely said "is the safe-tie of all", would be utterly destroyed.'" (Italics in Burtt Will Opinion.)

In Bosley v. Andrews, 393 Pa. 161, 142 A. 2d 263, this Court (in a decision with only two dissents) said (pages 168-169): "To allow recovery for fright, fear, nervous shock, humiliation, mental or emotional distress — with all the disturbances and illnesses which accompany or result therefrom — where there has been no physical injury or impact, would open a Pandora's box.. . . For every wholly genuine and deserving claim, there would likely be a tremendous number of illusory or imaginative or `faked' ones."

By permitting recovery in cases such as this — for alleged mental, emotional, psychic or physical injuries, without physical impact, the Majority will, we repeat, open wide the doors to an avalanche of fraudulent or emotional or imaginary illness claims which will unfairly delay thousands of meritorious claims, and will swamp our already tremendously overburdened Courts and make a joke out of Justice.

One enormously important problem which the Majority blithely ignore is that while medical science has made tremendous progress in this century, it has not yet reached a stage of knowledge where it can prove with any certainty — or without a tremendous diversity of sincere opinion which would therefore amount to nothing but a guess — both medical and legal causation, especially in the emotional disturbance and heart disease fields.

I will give a few of the very many examples that will occur to everyone: A plaintiff might be driving 419*419 her car alertly or with her mind preoccupied, when a sudden or unexpected or exceptionally loud noise of an automobile horn behind or parallel with her car, or a nearby sudden loud and unexpected fire engine bell or siren, or a nearby sudden unexpected frightening buzz-saw noise, or a nearby unexpected explosion from blasting or dynamiting, or a nearby unexpected nerve-wracking noise produced by riveting on a street, or the shrill and unexpected blast of a train at a spot at a nearby crossing, or the witnessing of a nearby horrifying accident, or the approach of a car near or over the middle line, even though it is driven to its own side in ample time to avoid an accident, or any one of a dozen other everyday nearby events — each of these can cause or aggravate fright or nervous shock or emotional distress or nervous tension or mental disturbance and physical ills. If any one of these and other events are compensable, without physical impact, it may cause normal people, as well as nervous persons and persons who are mentally disturbed or mentally ill, to honestly believe that the sudden and unexpected event nearby and believed by them to be threatening, caused them fright or nervous shock or nervous tension with subsequent emotional distress or suffering or pain or heart attack or miscarriage, or some kind of disease or physical injury. In most cases, it would be impossible for medical science to prove that these subjective symptoms could or could not possibly have resulted from or been aggravated or precipitated by fright or nervous shock or nervous tension or emotional disturbance or distress, each of which can in turn produce an ulcer or headaches or fainting spells or, under some circumstances, a heart attack, or a serious disease or other injurious results. Medical science, I repeat, could not prove but could only guess whether these could or could not have been caused or precipitated or aggravated by defendant's alleged negligent act.

420*420 Here the plaintiff alleges that he suffered a variety of heart attacks immediately after defendant's car skidded onto the sidewalk and struck down a fire hydrant, a litter pole and basket, a newsstand, and injured plaintiff's son who was standing next to the plaintiff when the accident occurred. While the chain of events may have contributed to or caused Mr. Niederman's heart attacks, there are innumerable other possible situations which could have contributed to plaintiff's alleged heart attacks but in which no legal causation could be established.^[*] Equally important, it is a matter of universal medical knowledge that numerous people walk the streets and countrysides engaged in their normal daily pursuits who have had heart disease for months or for several years without its having manifested itself.

Should we say to Stare Decisis, Quo Vadis? Or is Stare Decisis like Antaeus, who was lifted from but returned to the earth, or like Mohammed's coffin, which is suspended between Heaven and earth, with no one knowing when or which way it will rise or fall? Or is it like Nineveh and Tyre, which were destroyed, but every now and then are restored to temporary glory? 421*421 Today, no one knows from week to week or from Court session to Court session what the law is today or yesterday (retroactive decisions) or what it will be tomorrow. How can anyone know today what the law will be tomorrow, or what anyone's rights, privileges, powers, duties, responsibilities, limitations and liabilities are, or will be?

The basic principle of Stare Decisis which is the bedrock for all our Law is not as immutable as the law of the Medes and the Persians. It may be changed by the Legislature and, under some circumstances, it may be changed by the Courts. I would hold that the principle of Stare Decisis should always be applied, irrespective of the changing personnel of this (or any Supreme) Court, except (1) where the Supreme Court of Pennsylvania is convinced that prior decisions of the Court are irreconcilable; or (2) the application of a rule or principle has undoubtedly created great confusion; or (3) a rule of law has been only fluctuatingly applied; or (4) to correct a misconception in an occasional decision; or (5) in those rare cases where the Supreme Court is convinced that the reason for the law undoubtedly no longer exists, and modern circumstances and Justice combine to require or justify a change, and no one's present personal rights or vested property interests will be injured by the change. Change of circumstances or modern circumstances does not mean, nor has it ever heretofore been considered as the equivalent of change of personnel in the Court, or the substitution of the social or political philosophy of a Judge for the language of the Constitution or of a written instrument, or for well-settled principles of law.

Mr. Justice OWEN J. ROBERTS, Pennsylvania's most illustrious member of the Supreme Court of the United States, in a dissenting Opinion in Smith v. Allwright, 321 U.S. 649, 669, thus aptly and strikingly expressed his views concerning the erosion or abolition of the 422*422 principle of Stare Decisis: "The reason for my concern is that the instant decision, overruling that announced about nine years ago, tends to bring adjudications of this tribunal into the same class as a restricted railroad ticket, good for this day and train only. I have no assurance, in view of current decisions, that the opinion announced today may not shortly be repudiated and overruled by justices who deem they have new light on the subject."

Mr. Justice FRANKFURTER, in his concurring Opinion in Green v. United States, 356 U.S. 165, 192, said: "To say that everybody on the Court has been wrong for 150 years and that that which has been deemed part of the bone and sinew of the law should now be extirpated is quite another thing. . . . The admonition of Mr. Justice BRANDEIS that we are not a third branch of the Legislature should never be disregarded."

Mr. Justice DOUGLAS, who is generally regarded as the leading opponent of Stare Decisis, in an article written for the Columbia Law Review of June 1949, Vol. 49, p. 735, said: "Uniformity and continuity in law are necessary to many activities. If they are not present, the integrity of contracts, wills, conveyances and securities is impaired. And there will be no equal justice under law if a negligence rule is applied in the morning but not in the afternoon. Stare Decisis provides some moorings so that men may trade and arrange their affairs with confidence. Stare Decisis serves to take the capricious element out of law and to give stability to a society. It is a strong tie which the future has to the past."

Mr. Justice EAGEN well expressed the same concern for Stare Decisis in the recent case of Commonwealth v. Woodhouse, 401 Pa. 242, 253, 164 A. 2d 98 (1960): "Unquestionably, in a republican form of government as we are privileged to enjoy, order, certainty and stability in the law are essential for the safety and protection 423*423 of all. Stare Decisis should not be trifled with. If the law knows no fixed principles, chaos and confusion will certainly follow. . . . If it is clear that the reason for a law no longer exists and modern circumstances and justice require a change, and no vested rights will be violated, a change should be made."

What Chief Justice BLACK said for this Court in McDowell v. Oyer, 21 Pa. 417, 423 (1853), concerning Stare Decisis, is presently most apposite, viz., "It is sometimes said that this adherence to precedent is slavish; that it fetters the mind of the judge, and compels him to decide without reference to principle. But let it be remembered that stare decisis^[*] is itself a principle of great magnitude and importance. It is absolutely necessary to the formation and permanence of any system of jurisprudence. Without it we may fairly be said to have no law; for law is a fixed and established rule,^[*] not depending in the slightest degree on the caprice of those who may happen to administer it."

Moreover, I may add that which is often forgotten by the Majority — it is one of the most important duties of an appellate Court to erect legal signposts with language inscribed thereon so clearly, definitely, wisely and well that they who read may easily understand. This the Majority have likewise failed to do, in this case.

For the above reasons, I very strongly dissent.

[1] Since 1929 every other jurisdiction which has considered the issue, has either abandoned the rule or refused to adopt it. See Comment, Injuries from Fright Without Contact, 15 Cleve.-Mar. L. Rev. 331, 337 (1966).

A total of thirty-one jurisdictions have considered the impact rule. Of these 22, and perhaps 23 (depending on the resolution of the current confusion in Ohio) have rejected the requirement of impact. See Restatement, Torts (Second) § 436, Reporter's Notes: Robb v. Pennsylvania Railroad Company, 210 A. 2d 709 (Del. 1965); Falzone v. Busch, 45 N.J. 559, 214 A. 2d 12 (1965); Savard v. Cody Chevrolet, Inc., 234 A. 2d 656 (Vt. 1967).

[2] The impact doctrine was first announced in England in Victorian Railways Commissioners v. Coultas, 13 App. & Cas. 222 (1888). Curiously enough the rule was abandoned only thirteen years later in Dulieu v. White & Sons, 2 K.B. 669 (1901); this was not sufficiently soon to block the spawning of the doctrine in this country. See, e.g., Ewing v. Pittsburgh Railway Co., 147 Pa. 40, 23 Atl. 340 (1892); Mitchell v. Rochester Ry. Co., 151 N.Y. 107, 45 N.E. 354 (1896).

[3] In the year 1931, The American Law Institute in its commentaries to the first Restatement of Torts acknowledged that scientific and medical testimony might not be completely foolproof in this area. "The Institute expresses no opinion that the unreliability of the testimony necessary to establish the causal relation between the actor's negligence and the other's illness or bodily harm may not make it proper for the Court of a particular jurisdiction to refuse, as a matter of administrative policy, to hold the actor liable for harm to another which was brought about in the manner stated in this Subsection." But this caveat was deleted in 1948; we believe this is strong support for the belief that the medical profession now has the competency to establish causal relation.

[4] The most extreme case in which recovery was allowed for the damage caused by fear because there was some concurrent contact is Jones v. Brooklyn Heights R.R. Co., 23 App. Div. 141, 48 N.Y.S. 914 (1897). There plaintiff was hit in the head by a small incandescent light bulb, which fell from the roof of the car in which plaintiff was riding. Because of this "impact" plaintiff was permitted to recover for the miscarriage which was brought on by the accompanying shock.

[5] "As to the danger of illusory and fictional claims, this is not a new problem; our courts deal constantly with claims for pain and suffering based upon subjective symptoms only; and the courts and the medical profession have been found equal to the danger . . . [T]he problems of adequacy of proof, for the avoidance of speculative and conjectural damages, are common to personal injury cases generally and are surmountable, being satisfactorily solved by our courts in case after case." Robb v. Pennsylvania Railroad Company, 210 A. 2d at 714 (Del. 1965).

[6] "As to the possibility of actions based on fictitious injuries, a court should not deny recovery for a type of wrong which may result in serious harm because some people may institute fraudulent actions. Our trial courts retain sufficient control, through the rules of evidence and the requirements as to the sufficiency of evidence, to safeguard against the danger that juries will find facts without legally adequate proof." Falzone v. Busch, 214 A. 2d at 16 (N.J. 1965).

[7] "Although fraud, extra litigation and a measure of speculation are, of course, possibilities, it is no reason for a court to eschew a measure of its jurisdiction. `The argument from mere expediency cannot commend itself to a Court of justice, resulting in the denial of a logical legal right and remedy in all cases because in some a fictitious injury may be urged as a real one.'" Battalla v. State, 176 N.E. 2d at 731 (N.Y. 1961).

[8] See, e.g., Lambert, Tort Liability for Psychic Injuries, 41 Boston U.L. Rev. 584, 590-91: "This argument betrays a hopeless belief in the insolvency of the judicial process and its inability to separate genuine from bogus fright cases. The problem is one of the sufficiency of proof, and it is not necessary to bar redress in all cases because some claims may be groundless. . . . In truth the paralyzing fear that to allow recovery in `psychic link' cases will make of our courts a dumping ground for false claims, because of the difficulty of proof and the danger of baseless claims, shows a cynical lack of faith in the ability of our courts and juries to sift the false from the true."

[*] The old axiom was thus expressed: "Hard cases make bad law."

[*] Many writers today, including law school students and professors, believe that the way to rise to prominence and fame is through publicly denouncing decisions in any field of the Law and advocating the substitution of new and different standards in the name of "modernity." Neither such advocates nor the decisions or reasonings found in the Opinions of other State Courts are sufficiently persuasive to cause us to abandon Pennsylvania's "impact rule."

[*] All the members of the Supreme Court joined in this Opinion, except Mr. Justice MUSMANNO and Mr. Justice COHEN.

[*] Italics throughout, ours, unless otherwise noted.

[**] Indeed, I believe that Stare Decisis has been supported and approved by virtually every Chief Justice of Pennsylvania, including particularly Chief Justice BLACK, Chief Justice LOWRIE, Chief Justice MITCHELL, Chief Justice VON MOSCHZISKER, Chief Justice KEPHART, Chief Justice SCHAFFER, Chief Justice MAXEY, Chief Justice DREW, Chief Justice STERN, Chief Justice JONES, and the present writer.

[*] For instance, a heart attack could be caused by witnessing an act of violence, being awakened by a sudden loud nearby noise, getting stuck in an elevator, fright or any emotional upset, tension, pressure, worry, anger, an unexpected fall, running for a train, excitement at a professional sports event, a loud explosion, thunder and lightning, a death in the family, a bitter family quarrel, fire, theft or loss of a valuable possession, stock market crash, sharp, loud, unexpected sounds of whistles, sirens, bells, screams, shouts, heavy construction, explosions of mines, bottles, balloons, firecrackers, winning or losing a large bet at the Kentucky Derby (or any sweepstakes or races), fear of loss of job or earnings, an unexpected and unfavorable medical diagnosis, a telegram containing bad news, having one's pocket picked or purse snatched, getting a "busy signal" when trying to place an important phone call for help, or any number of other everyday occurrences which would cause sudden fright or emotional upset or anger.

[*] Italics in McDowell v. Oyer Opinion.

807*807 COUNSEL

Hall, Moore & Norkin and Joseph E. Hall for Plaintiff and Appellant.

Mestad & Sanborn, John B. Mestad, Robert E. Cartwright, Edward I. Pollock, William H. Lally, Stephen I. Zetterberg, Robert G. Beloud, 808*808 David B. Baum and Leonard Sacks as Amici Curiae on behalf of Plaintiff and Appellant.

Hagenbaugh & Murphy, Herbert F. Blanck and William D. Stewart for Defendants and Respondents.

Ives, Kirwan & Dibble, Martin J. Kirwan, Robert A. Seligson, Gilbert, Kelly, Crowley & Jennett, Roger E. Kelly, Ellis J. Horvitz and Arthur E. Schwimmer as Amici Curiae on behalf of Defendants and Respondents.

OPINION

SULLIVAN, J.

In this case we address the grave and recurrent question whether we should judicially declare no longer applicable in California courts the doctrine of contributory negligence, which bars all recovery when the plaintiff's negligent conduct has contributed as a legal cause in any degree to the harm suffered by him, and hold that it must give way to a system of comparative negligence, which assesses liability in direct proportion to fault. As we explain in detail infra, we conclude that we should. In the course of reaching our ultimate decision we conclude that: (1) The doctrine of comparative negligence is preferable to the "all-or-nothing" doctrine of contributory negligence from the point of view of logic, practical experience, and fundamental justice; (2) judicial action in this area is not precluded by the presence of section 1714 of the Civil Code, which has been said to "codify" the "all-or-nothing" rule and to render it immune from attack in the courts except on constitutional grounds; (3) given the possibility of judicial action, certain practical difficulties attendant upon the adoption of comparative negligence should not dissuade us from charting a new course — leaving the resolution of some of these problems to future judicial or legislative action; (4) the doctrine of comparative negligence should be applied in this state in its so-called "pure" form under which the assessment of liability in proportion to fault proceeds in spite of the fact that the plaintiff is equally at fault as or more at fault than the defendant; and finally (5) this new rule should be given a limited retrospective application.

The accident here in question occurred near the intersection of Alvarado Street and Third Street in Los Angeles. At this intersection 809*809 Third Street runs in a generally east-west direction along the crest of a hill, and Alvarado Street, running generally north and south, rises gently to the crest from either direction. At approximately 9 p.m. on November 21, 1968, plaintiff Nga Li was proceeding northbound on Alvarado in her 1967 Oldsmobile. She was in the inside lane, and about 70 feet before she reached the Third Street intersection she stopped and then began a left turn across the three southbound lanes of Alvarado, intending to enter the driveway of a service station. At this time defendant Robert Phillips, an employee of defendant Yellow Cab Company, was driving a company-owned taxicab southbound in the middle lane on Alvarado. He came over the crest of the hill, passed through the intersection, and collided with the right rear portion of plaintiff's automobile, resulting in personal injuries to plaintiff as well as considerable damage to the automobile.

The court, sitting without a jury, found as facts that defendant Phillips was traveling at approximately 30 miles per hour when he entered the intersection, that such speed was unsafe at that time and place, and that the traffic light controlling southbound traffic at the intersection was yellow when defendant Phillips drove into the intersection. It also found, however, that plaintiff's left turn across the southbound lanes of Alvarado "was made at a time when a vehicle was approaching from the opposite direction so close as to constitute an immediate hazard." The dispositive conclusion of law was as follows: "That the driving of NGA LI was negligent, that such negligence was a proximate cause of the collision, and that she is barred from recovery by reason of such contributory negligence." Judgment for defendants was entered accordingly.

I

"Contributory negligence is conduct on the part of the plaintiff which falls below the standard to which he should conform for his own protection, and which is a legally contributing cause cooperating with the negligence of the defendant in bringing about the plaintiff's harm." (Rest. 2d Torts, § 463.) Thus the American Law Institute, in its second restatement of the law, describes the kind of conduct on the part of one seeking recovery for damage caused by negligence which renders him subject to the doctrine of contributory negligence. What the effect of such conduct will be is left to a further section, which states the doctrine in its clearest essence: "Except where the defendant has the last clear chance, the plaintiff's contributory negligence bars recovery against a 810*810 defendant whose negligent conduct would otherwise make him liable to the plaintiff for the harm sustained by him." (Rest. 2d Torts, § 467.) (Italics added.)

This rule, rooted in the long-standing principle that one should not recover from another for damages brought upon oneself (see Baltimore & P.R. Co. v. Jones (1877) 95 U.S. 439, 442 [24 L.Ed. 506, 507]; Buckley v. Chadwick (1955) 45 Cal.2d 183, 192 [288 P.2d 12, 289 P.2d 242]), has been the law of this state from its beginning. (See Innis v. The Steamer Senator (1851) 1 Cal. 459, 460-461; Griswold v. Sharpe (1852) 2 Cal. 17, 23-24; Richmond v. Sacramento Valley Railroad Company (1861) 18 Cal. 351, 356-358; Gay v. Winter (1867) 34 Cal. 153, 162-163; Needham v. S.F. & S.J.R. Co. (1869) 37 Cal. 409, 417-423.) Although criticized almost from the outset for the harshness of its operation, it has weathered numerous attacks, in both the legislative^[1] and the judicial^[2] arenas, seeking its amelioration or repudiation. We have undertaken a thorough reexamination of the matter, giving particular attention to the common law and statutory sources of the subject doctrine in this state. As we have indicated, this reexamination leads us to the conclusion that the "all-or-nothing" rule of contributory negligence can be and ought to be superseded by a rule which assesses liability in proportion to fault.

It is unnecessary for us to catalogue the enormous amount of critical comment that has been directed over the years against the "all-or-nothing" approach of the doctrine of contributory negligence. The essence of that criticism has been constant and clear: the doctrine is inequitable in its operation because it fails to distribute responsibility in proportion to fault.^[3] Against this have been raised several arguments in 811*811 justification, but none have proved even remotely adequate to the task.^[4] The basic objection to the doctrine — grounded in the primal concept that in a system in which liability is based on fault, the extent of fault should govern the extent of liability — remains irresistible to reason and all intelligent notions of fairness.

Furthermore, practical experience with the application by juries of the doctrine of contributory negligence has added its weight to analyses of its inherent shortcomings: "Every trial lawyer is well aware that juries often do in fact allow recovery in cases of contributory negligence, and that the compromise in the jury room does result in some diminution of the damages because of the plaintiff's fault. But the process is at best a haphazard and most unsatisfactory one." (Prosser, Comparative Negligence, supra, p. 4; fn. omitted.) (See also Prosser, Torts, supra, § 67, pp. 436-437; Comments of Malone and Wade in Comments on Maki v. 812*812 Frelk — Comparative v. Contributory Negligence: Should the Court or Legislature Decide? (1968) 21 Vand.L.Rev. 889, at pp. 934, 943; Ulman, A Judge Takes the Stand (1933) pp. 30-34; cf. Comment of Kalven, 21 Vand.L.Rev. 889, 901-904.) It is manifest that this state of affairs, viewed from the standpoint of the health and vitality of the legal process, can only detract from public confidence in the ability of law and legal institutions to assign liability on a just and consistent basis. (See Keeton, Creative Continuity in the Law of Torts (1962) 75 Harv.L.Rev. 463, 505; Comment of Keeton in Comments on Maki v. Frelk, supra, 21 Vand.L. Rev. 889, at p. 916;^[5] Note (1974) 21 U.C.L.A.L.Rev. 1566, 1596-1597.)

It is in view of these theoretical and practical considerations that to this date 25 states,^[6] have abrogated the "all-or-nothing" rule of contributory negligence and have enacted in its place general apportionment statutes calculated in one manner or another to assess liability in proportion to fault. In 1973 these states were joined by Florida, which effected the same result by judicial decision. (Hoffman v. Jones (Fla. 1973) 280 So.2d 431.) We are likewise persuaded that logic, practical experience, and fundamental justice counsel against the retention of the 813*813 doctrine rendering contributory negligence a complete bar to recovery — and that it should be replaced in this state by a system under which liability for damage will be borne by those whose negligence caused it in direct proportion to their respective fault.^[6a].

The foregoing conclusion, however, clearly takes us only part of the way. It is strenuously and ably urged by defendants and two of the amici curiae that whatever our views on the relative merits of contributory and comparative negligence, we are precluded from making those views the law of the state by judicial decision. Moreover, it is contended, even if we are not so precluded, there exist considerations of a practical nature which should dissuade us from embarking upon the course which we have indicated. We proceed to take up these two objections in order.

II

It is urged that any change in the law of contributory negligence must be made by the Legislature, not by this court. Although the doctrine of contributory negligence is of judicial origin — its genesis being traditionally attributed to the opinion of Lord Ellenborough in Butterfield v. Forrester (K.B. 1809) 103 Eng. Rep. 926 — the enactment of section 1714 of the Civil Code^[7] in 1872 codified the doctrine as it stood at that date and, the argument continues, rendered it invulnerable to attack in the courts except on constitutional grounds. Subsequent cases of this court, it is pointed out, have unanimously affirmed that — barring the appearance of some constitutional infirmity — the "all-or-nothing" rule is the law of this state and shall remain so until the Legislature directs otherwise. The fundamental constitutional doctrine of separation of powers, the argument concludes, requires judicial abstention.

We are further urged to observe that a basic distinction exists between the situation obtaining in Florida prior to the decision of that state's Supreme Court abrogating the doctrine (Hoffman v. Jones, supra, 280 So.2d 431), and the situation now confronting this court. There, to be sure, the Florida court was also faced with a statute, and the dissenting justice considered that fact sufficient to bar judicial change of the rule. The statute there in question, however, merely declared that the general 814*814 English common and statute law in effect on July 4, 1776, was to be in force in Florida except to the extent it was inconsistent with federal constitutional and statutory law and acts of the state legislature. (Fla. Stat., § 2.01, F.S.A.) The majority simply concluded that there was no clear-cut common law rule of contributory negligence prior to the 1809 Butterfield decision (Butterfield v. Forrester, supra, 103 Eng. Rep. 926), and that therefore that rule was not made a part of Florida law by the statute.^[8] (280 So.2d at pp. 434-435.) In the instant case, defendants and the amici curiae who support them point out, the situation is quite different: here the Legislature has specifically enacted the rule of contributory negligence as the law of this state. In these circumstances, it is urged, the doctrine of separation of powers requires that any change must come from the Legislature.

We have concluded that the foregoing argument, in spite of its superficial appeal, is fundamentally misguided. (1) As we proceed to point out and elaborate below, it was not the intention of the Legislature in enacting section 1714 of the Civil Code, as well as other sections of that code declarative of the common law, to insulate the matters therein expressed from further judicial development; rather it was the intention of the Legislature to announce and formulate existing common law principles and definitions for purposes of orderly and concise presentation and with a distinct view toward continuing judicial evolution.

Before turning our attention to section 1714 itself we make some observations concerning the 1872 Civil Code as a whole. Professor Arvo Van Alstyne, in an excellent and instructive article entitled The California Civil Code which appears as the introductory commentary to West's Annotated Civil Code (1954), has carefully and authoritatively traced the history and examined the development of this, the first code of substantive law to be adopted in this state. Based upon the ill-fated draft Civil Code prepared under the direction and through the effort of David Dudley Field for adoption in the state of New York, the California code found acceptance for reasons largely related to the temperament and needs of an emerging frontier society. "In the young and growing commonwealth of California, the basically practical views of Field commanded wider acceptance than the more theoretic and philosophic arguments of the jurists of the historic school. In 1872, the advantages of 815*815 codification of the unwritten law, as well as of a systematic revision of statute law, loomed large, since that law, drawing heavily upon the judicial traditions of the older states of the Union, was still in a formative stage. The possibility of widely dispersed popular knowledge of basic legal concepts comported well with the individualistic attitudes of the early West." (Van Alstyne, supra, p. 6.)

However, the extreme consciseness and brevity of expression which was characteristic of the 1872 code, although salutary from the point of view of popular access to basic legal concepts, early led to uncertainty and dispute as to whether it should be regarded as the exclusive or primary source of the law of private rights. Due largely to the influence of a series of articles on the subject by Professor John Norton Pomeroy, this problem of interpretation was soon resolved, and by 1920 this court was able to state with confidence: "The Civil Code was not designed to embody the whole law of private and civil relations, rights, and duties; it is incomplete and partial; and except in those instances where its language clearly and unequivocally discloses an intention to depart from, alter, or abrogate the common-law rule concerning a particular subject matter, a section of the code purporting to embody such doctrine or rule will be construed in light of common-law decisions on the same subject." (Estate of Elizalde (1920) 182 Cal. 427, 433 [188 P. 560]; see also Van Alstyne, supra, pp. 29-35.)

In addition, the code itself provides explicit guidance as to how such construction shall proceed. "The rule of the common law, that statutes in derogation thereof are to be strictly construed, has no application to this Code. The Code establishes the law of this State respecting the subjects to which it relates, and its provisions are to be liberally construed with a view to effect its objects and to promote justice." (Civ. Code (1872) § 4.) Also, "[t]he provisions of this Code, so far as they are substantially the same as existing statutes or the common law, must be construed as continuations thereof, and not as new enactments." (Civ. Code 1872) § 5; italics added.) The effect of these sections was early expressed by us in In re Jessup (1889) 81 Cal. 408, 419 [21 P. 976, 22 P. 742, 1028], in the following terms: "[E]ven as to the code, `liberal construction' does not mean enlargement or restriction of a plain provision of a written law. If a provision of the code is plain and unambiguous, it is the duty of the court to enforce it as it is written. If it is ambiguous or doubtful, or susceptible of different constructions or interpretations, then such liberality of construction is to be indulged in as, within the fair interpretation of its language, will effect its apparent object and promote justice." (See also 816*816 Baxter v. Shanley-Furness Co. (1924) 193 Cal. 558, 560 [226 P. 391]; see generally 45 Cal.Jur.2d, Statutes, § 162, pp. 663-667.)

The foregoing view of the character, function, and proper mode of interpretation of the Civil Code has imbued it with admirable flexibility from the standpoint of adaptation to changing circumstances and conditions. As Professor Van Alstyne states the matter: "[The code's] incompleteness, both in scope and in detail[,] have provided ample room for judicial development of important new systems of rules, frequently built upon Code foundations. In the field of torts, in particular, which the Civil Code touches upon only briefly and sporadically, the courts have been free from Code restraint in evolving the details of such currently vital rules as those pertaining to last clear chance, the right of privacy, res ipsa loquitur, unfair competition, and the `impact rule' in personal injury cases.... [¶] In short, the Civil Code has not, as its critics had predicted, restricted the orderly development of the law in its most rapidly changing areas along traditional patterns. That this is true is undoubtedly due in large measure to the generality of Code treatment of its subject matter, stress being placed upon basic principles rather than a large array of narrowly drawn rules. In addition, the acceptance of Professor Pomeroy's concept of the Civil Code as a continuation of the common law created an atmosphere in which Code interpretation could more easily partake of common law elasticity." (Van Alstyne, supra, pp. 36-37.)

It is with these general precepts in mind that we turn to a specific consideration of section 1714. That section, which we have already quoted in full (fn. 7, ante), provides in relevant part as follows: "Everyone is responsible, not only for the result of his willful acts, but also for an injury occasioned to another by his want of ordinary care or skill in the management of his property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself." (Italics added.)

The present-day reader of the foregoing language is immediately struck by the fact that it seems to provide in specific terms for a rule of comparative rather than contributory negligence — i.e., for a rule whereby plaintiff's recovery is to be diminished to the extent that his own actions have been responsible for his injuries. The use of the compound conjunction "except so far as" — rather than some other conjunction setting up a wholly disqualifying condition — clearly seems to indicate an intention on the part of the Legislature to adopt a system other than one wherein contributory fault on the part of the plaintiff would operate to 817*817 bar recovery.^[9] Thus it could be argued — as indeed it has been argued with great vigor by plaintiff and the amici curiae who support her position — that no change in the law is necessary in this case at all. Rather, it is asserted, all that is here required is a recognition by this court that section 1714 announced a rule of comparative negligence in this state in 1872 and a determination to brush aside all of the misguided decisions which have concluded otherwise up to the present day. (See also Bodwell, It's Been Comparative Negligence For Seventy-Nine Years (1952) 27 L.A. Bar Bull. 247.)

(2) (See fn. 10.) Our consideration of this arresting contention — and indeed of the whole question of the true meaning and intent of section 1714 — cannot proceed without reference to the Code Commissioners' Note which appeared immediately following section 1714 in the 1872 code.^[10] That note provided in full as follows: "Code La., § 2295; Code Napoleon, § 1383; Austin vs. Hudson River R.R. Co., 25 N.Y., p. 334; Jones vs. Bird, 5 B. & Ald., p. 837; Dodd vs. Holmes, 1 Ad. & El., p. 493. This section modifies the law heretofore existing. — See 20 N.Y., p. 67; 10 M. & W., p. 546; 5 C.B. (N.S.), p. 573. This class of obligations imposed by law seems to be laid down in the case of Baxter vs. Roberts, July Term, 1872, Sup. Ct. Cal. Roberts employed Baxter to perform a service which he (Roberts) knew to be perilous, without giving Baxter any notice of its perilous character; Baxter was injured. Held: that Roberts was responsible in damages for the injury which Baxter sustained. (See facts of case.)" (1 Annot. Civ. Code (Haymond & Burch 1874 ed.) p. 519; italics added.)

Each of the parties and amici in this case has applied himself to the task of legal cryptography which the interpretation of this note involves. The variety of answers which has resulted is not surprising. We first address ourselves to the interpretation advanced by plaintiff and the amici curiae in support of her contention set forth above, that section 1714 in fact announced a rule of comparative rather than contributory negligence.

818*818 The portion of the note which is relevant to our inquiry extends from its beginning up to the series of three cases cited following the italicized sentence: "This section modifies the law heretofore existing." Plaintiff and her allies point out that the first authorities cited are two statutes from civil law jurisdictions, Louisiana and France; then comes the italicized sentence; finally there are cited three cases which state the common law of contributory negligence modified by the doctrine of last clear chance. The proper interpretation, they urge, is this: Civil law jurisdictions, they assert, uniformly apportion damages according to fault. The citation to statutes of such jurisdictions, followed by a sentence indicating that a change is intended, followed in turn by the citation of cases expressing the common law doctrine — these taken together, it is urged, support the clear language of section 1714 by indicating the rejection of the common law "all-or-nothing" rule and the adoption in its place of civil law principles of apportionment.

This argument fails to withstand close scrutiny. The civil law statutes cited in the note, like the common law cases cited immediately following them, deal not with "defenses" to negligence but with the basic concept of negligence itself.^[11] In fact the Code Commissioners' Note to the parallel section of the Field draft cites the very same statutes and the very same cases in direct support of its statement of the basic rule.^[12] Moreover, in 1872, when section 1714 was enacted and the Code Commissioners' Note was written, neither France nor Louisiana applied concepts of comparative negligence. The notion of "faute commune" did not become firmly rooted in French law until 1879 and was not codified until 1915. (See Turk, Comparative Negligence on the March (1950) 28 Chi.-Kent L.Rev. 189, 239-240.) Louisiana, in spite of an 1825 statute 819*819 which appeared to establish comparative negligence,^[13] firmly adhered to the "all-or-nothing" common law rule in 1872 and has done so ever since. (See Schwartz, supra, § 1.3, p. 10, fn. 76; Turk, supra, at pp. 318-326.) In fact, in 1872 there was no American jurisdiction applying concepts of true comparative negligence for general purposes,^[14] and the only European jurisdictions doing so were Austria and Portugal. (Turk, supra, at p. 241.) Among those jurisdictions applying such concepts in the limited area in which they have traditionally been applied, to wit, admiralty, was California itself: in section 973 of the very Civil Code which we are now considering (now Harb. & Nav. Code, § 292) apportionment was provided for when the negligence of the plaintiff was slight. Yet the Code Commissioners' Note did not advert to this section.

In view of all of the foregoing we think that it would indeed be surprising if the 1872 Legislature, intending to accomplish the marked departure from common law which the adoption of comparative negligence would represent, should have chosen to do so in language which differed only slightly from that used in the Field draft to describe the common law rule. (See fn. 12, ante; see also Buckley v. Chadwick, supra, 45 Cal.2d 183, 192-193.) It would be even more surprising if the Code Commissioners, in stating the substance of the intended change, should fail to mention the law of any jurisdiction, American or foreign, which then espoused the new doctrine in any form, and should choose to cite in their note the very statutes and decisions which the New York Code Commissioners had cited in support of their statement of the common law rule. (See fn. 12, ante, and accompanying text.) (3) (See fn. 15.) It is in our view manifest that neither the Legislature nor the Code Commissioners harbored any such intention — and that the use of the words "except so far as" in section 1714 manifests an intention other than that of declaring comparative negligence the law of California in 1872.^[15]

820*820 That intention, we have concluded, was simply to insure that the rule of contributory negligence, as applied in this state, would not be the harsh rule then applied in New York but would be mitigated by the doctrine of last clear chance. The New York rule, which did not incorporate the latter doctrine, had been given judicial expression several years before in the case of Johnson v. The Hudson River Railroad Company (1859) 20 N.Y. 65. It is apparent from the Code Commissioners' Note that this rule was considered too harsh for adoption in California, and that the Legislature therefore determined to adopt a provision which would not have the effect of barring a negligent plaintiff from recovery without regard to the quantity or quality of his negligence.^[16]

Turning to the text of the note, we observe that, as indicated above (fn. 11, ante, and accompanying text), the first group of citations, both statutory and decisional, deal with defining the basic concept of negligence and announcing a rule of recovery therefor. Then appears the sentence "This section modifies the law heretofore existing," followed immediately by the citation of three cases. The first of these, as we have indicated, is Johnson v. The Hudson River Railroad Company, supra, 20 N.Y. 65; that case represented the strict New York rule of contributory negligence, derived directly from the 1809 Butterfield case, under which any negligence on the part of the plaintiff barred recovery; and it had been specifically cited for that proposition in the Field draft section 853. (See fn. 12, ante.) The second and third cases cited by the California commissioners were Davies v. Mann (1842) 10 M.&W. 546, and Tuff v. Warman (1858) 5 C.B. (N.S.) 573; these cases stated the emerging doctrine of last clear chance, which the English courts had begun to apply in order to ameliorate the harsh Butterfield rule. Interestingly, the last cited of these cases contains language which might well have been the source of the term "except so far as" which the California Legislature used to indicate its parting of the ways with the New York rule: "It appears to us that the proper question for the jury in this case, and indeed in all others of the like kind, is, whether the damage was occasioned entirely by the negligence or improper conduct of the defendant, or whether the plaintiff himself so far contributed to the 821*821 misfortune by his own negligence or want of ordinary and common care and caution, that, but for such negligence or want of ordinary care and caution on his part, the misfortune would not have happened." (Tuff v. Warman, supra, 5 C.B. (N.S.) 573, 585; italics added.)^[17]

We think that the foregoing establishes conclusively that the intention of the Legislature in enacting section 1714 of the Civil Code was to state the basic rule of negligence together with the defense of contributory negligence modified by the emerging doctrine of last clear chance. It remains to determine whether by so doing the Legislature intended to restrict the courts from further development of these concepts according to evolving standards of duty, causation, and liability.

This question must be answered in the negative. As we have explained above, the peculiar nature of the 1872 Civil Code as an avowed continuation of the common law has rendered it particularly flexible and adaptable in its response to changing circumstances and conditions. To reiterate the words of Professor Van Alstyne, "[the code's] incompleteness, both in scope and detail[,] have provided ample room for judicial 822*822 development of important new systems of rules, frequently built upon Code foundations." (Van Alstyne, supra, at p. 36.) Section 1714 in particular has shown great adaptability in this respect. For example, the statute by its express language speaks of causation only in terms of actual cause or cause in fact ("Everyone is responsible ... for an injury occasioned to another by his want of ordinary care."), but this has not prevented active judicial development of the twin concepts of proximate causation and duty of care. (See, e.g., Vesely v. Sager (1971) 5 Cal.3d 153, 158-167 [95 Cal. Rptr. 623, 486 P.2d 151]; Connor v. Great Western Sav. & Loan Assn. (1968) 69 Cal.2d 850, 865-868 [73 Cal. Rptr. 369, 447 P.2d 609, 39 A.L.R.3d 224]; Dillon v. Legg (1968) 68 Cal.2d 728, 739-748 [69 Cal. Rptr. 72, 441 P.2d 912, 29 A.L.R.3d 1316]; Stewart v. Cox (1961) 55 Cal.2d 857, 861-863 [13 Cal. Rptr. 521, 362 P.2d 345]; Biakanja v. Irving (1958) 49 Cal.2d 647 [320 P.2d 16, 65 A.L.R.2d 1358]; Richards v. Stanley (1954) 43 Cal.2d 60, 63-66 [271 P.2d 23].) Conversely, the presence of this statutory language has not hindered the development of rules which, in certain limited circumstances, permit a finding of liability in the absence of direct evidence establishing the defendant's negligence as the actual cause of damage. (See Summers v. Tice (1948) 33 Cal.2d 80 [199 P.2d 1, 5 A.L.R.2d 91]; Ybarra v. Spangard (1944) 25 Cal.2d 486 [154 P.2d 687, 162 A.L.R. 1258].) By the same token we do not believe that the general language of section 1714 dealing with defensive considerations should be construed so as to stifle the orderly evolution of such considerations in light of emerging techniques and concepts. (4) On the contrary we conclude that the rule of liberal construction made applicable to the code by its own terms (Civ. Code, § 4, discussed ante) together with the code's peculiar character as a continuation of the common law (see Civ. Code, § 5, also discussed ante) permit if not require that section 1714 be interpreted so as to give dynamic expression to the fundamental precepts which it summarizes.

The aforementioned precepts are basically two. The first is that one whose negligence has caused damage to another should be liable therefor. The second is that one whose negligence has contributed to his own injury should not be permitted to cast the burden of liability upon another. The problem facing the Legislature in 1872 was how to accommodate these twin precepts in a manner consonant with the then progress of the common law and yet allow for the incorporation of future developments. The manner chosen sought to insure that the harsh accommodation wrought by the New York rule — i.e., barring recovery to one guilty of any negligence — would not take root in this state. Rather the Legislature wished to encourage a more humane rule — one holding out the hope of recovery to the negligent plaintiff in some circumstances.

823*823 The resources of the common law at that time (in 1872) did not include techniques for the apportionment of damages strictly according to fault — a fact which this court had lamented three years earlier (see fn. 17, ante). They did, however, include the nascent doctrine of last clear chance which, while it too was burdened by an "all-or-nothing" approach, at least to some extent avoided the often unconscionable results which could and did occur under the old rule precluding recovery when any negligence on the part of the plaintiff contributed in any degree to the harm suffered by him. Accordingly the Legislature sought to include the concept of last clear chance in its formulation of a rule of responsibility. We are convinced, however, as we have indicated, that in so doing the Legislature in no way intended to thwart future judicial progress toward the humane goal which it had embraced. (5) Therefore, and for all of the foregoing reasons, we hold that section 1714 of the Civil Code was not intended to and does not preclude present judicial action in furtherance of the purposes underlying it.

III

We are thus brought to the second group of arguments which have been advanced by defendants and the amici curiae supporting their position. Generally speaking, such arguments expose considerations of a practical nature which, it is urged, counsel against the adoption of a rule of comparative negligence in this state even if such adoption is possible by judicial means.

The most serious of these considerations are those attendant upon the administration of a rule of comparative negligence in cases involving multiple parties. One such problem may arise when all responsible parties are not brought before the court: it may be difficult for the jury to evaluate relative negligence in such circumstances, and to compound this difficulty such an evaluation would not be res judicata in a subsequent suit against the absent wrongdoer. Problems of contribution and indemnity among joint tortfeasors lurk in the background. (See generally Prosser, Comparative Negligence, supra, 41 Cal.L.Rev. 1, 33-37; Schwartz, Comparative Negligence, supra, §§ 16.1-16.9, pp. 247-274.)

A second and related major area of concern involves the administration of the actual process of fact-finding in a comparative negligence system. The assigning of a specific percentage factor to the amount of negligence attributable to a particular party, while in theory a matter of little difficulty, can become a matter of perplexity in the face of hard facts.

824*824 The temptation for the jury to resort to a quotient verdict in such circumstances can be great. (See Schwartz, supra, § 17.1, pp. 275-279.) These inherent difficulties are not, however, insurmountable. Guidelines might be provided the jury which will assist it in keeping focussed upon the true inquiry (see, e.g., Schwartz, supra, § 17.1, pp. 278-279), and the utilization of special verdicts^[18] or jury interrogatories can be of invaluable assistance in assuring that the jury has approached its sensitive and often complex task with proper standards and appropriate reverence. (See Schwartz, supra, § 17.4, pp. 282-291; Prosser, Comparative Negligence, supra, 41 Cal.L.Rev., pp. 28-33.)

The third area of concern, the status of the doctrines of last clear chance and assumption of risk, involves less the practical problems of administering a particular form of comparative negligence than it does a definition of the theoretical outline of the specific form to be adopted. Although several states which apply comparative negligence concepts retain the last clear chance doctrine (see Schwartz, supra, § 7.2, p. 134), the better reasoned position seems to be that when true comparative negligence is adopted, the need for last clear chance as a palliative of the hardships of the "all-or-nothing" rule disappears and its retention results only in a windfall to the plaintiff in direct contravention of the principle of liability in proportion to fault. (See Schwartz, supra, § 7.2, pp. 137-139; Prosser, Comparative Negligence, supra, 41 Cal.L.Rev., p. 27.) As for assumption of risk, we have recognized in this state that this defense overlaps that of contributory negligence to some extent and in fact is made up of at least two distinct defenses. "To simplify greatly, it has been observed ... that in one kind of situation, to wit, where a plaintiff unreasonably undertakes to encounter a specific known risk imposed by a defendant's negligence, plaintiff's conduct, although he may encounter that risk in a prudent manner, is in reality a form of contributory negligence.... Other kinds of situations within the doctrine of assumption of risk are those, for example, where plaintiff is held to agree to relieve defendant of an obligation of reasonable conduct toward him. 825*825 Such a situation would not involve contributory negligence, but rather a reduction of defendant's duty of care." (Grey v. Fibreboard Paper Products Co. (1966) 65 Cal.2d 240, 245-246 [53 Cal. Rptr. 545, 418 P.2d 153]; see also Fonseca v. County of Orange (1972) 28 Cal. App.3d 361, 368-369 [104 Cal. Rptr. 566]; see generally, 4 Witkin, Summary of Cal. Law, Torts, § 723, pp. 3013-3014; 2 Harper & James, The Law of Torts, supra, § 21.1, pp. 1162-1168; cf. Prosser, Torts, supra, § 68, pp. 439-441.) We think it clear that the adoption of a system of comparative negligence should entail the merger of the defense of assumption of risk into the general scheme of assessment of liability in proportion to fault in those particular cases in which the form of assumption of risk involved is no more than a variant of contributory negligence. (See generally, Schwartz, supra, ch. 9, pp. 153-175.)

Finally there is the problem of the treatment of willful misconduct under a system of comparative negligence. In jurisdictions following the "all-or-nothing" rule, contributory negligence is no defense to an action based upon a claim of willful misconduct (see Rest. 2d Torts, § 503; Prosser, Torts, supra, § 65, p. 426), and this is the present rule in California. (Williams v. Carr (1968) 68 Cal.2d 579, 583 [68 Cal. Rptr. 305, 440 P.2d 505].)^[19] As Dean Prosser has observed, "[this] is in reality a rule of comparative fault which is being applied, and the court is refusing to set up the lesser fault against the greater." (Prosser, Torts, supra, § 65, p. 426.) The thought is that the difference between willful and wanton misconduct and ordinary negligence is one of kind rather than degree in that the former involves conduct of an entirely different order,^[20] and under this conception it might well be urged that comparative negligence concepts should have no application when one of the parties has been guilty of willful and wanton misconduct. It has been persuasively argued, however, that the loss of deterrent effect that would occur upon 826*826 application of comparative fault concepts to willful and wanton misconduct as well as ordinary negligence would be slight, and that a comprehensive system of comparative negligence should allow for the apportionment of damages in all cases involving misconduct which falls short of being intentional. (Schwartz, supra, § 5.3, p. 108.) The law of punitive damages remains a separate consideration. (See Schwartz, supra, § 5.4, pp. 109-111.)

The existence of the foregoing areas of difficulty and uncertainty (as well as others which we have not here mentioned — see generally Schwartz, supra, § 21.1, pp. 335-339) has not diminished our conviction that the time for a revision of the means for dealing with contributory fault in this state is long past due and that it lies within the province of this court to initiate the needed change by our decision in this case. Two of the indicated areas (i.e., multiple parties and willful misconduct) are not involved in the case before us, and we consider it neither necessary nor wise to address ourselves to specific problems of this nature which might be expected to arise. As the Florida court stated with respect to the same subject, "it is not the proper function of this Court to decide unripe issues, without the benefit of adequate briefing, not involving an actual controversy, and unrelated to a specific factual situation." (Hoffman v. Jones, supra, 280 So.2d 431, 439.)

Our previous comments relating to the remaining two areas of concern (i.e., the status of the doctrines of last clear chance and assumption of risk, and the matter of judicial supervision of the finder of fact) have provided sufficient guidance to enable the trial courts of this state to meet and resolve particular problems in this area as they arise. As we have indicated, last clear chance and assumption of risk (insofar as the latter doctrine is but a variant of contributory negligence) are to be subsumed under the general process of assessing liability in proportion to fault, and the matter of jury supervision we leave for the moment within the broad discretion of the trial courts.

Our decision in this case is to be viewed as a first step in what we deem to be a proper and just direction, not as a compendium containing the answers to all questions that may be expected to arise. Pending future judicial or legislative developments, we are content for the present to assume the position taken by the Florida court in this matter: "We feel the trial judges of this State are capable of applying [a] comparative negligence rule without our setting guidelines in anticipation of expected problems. The problems are more appropriately resolved at the trial 827*827 level in a practical manner instead of a theoretical solution at the appellate level. The trial judges are granted broad discretion in adopting such procedures as may accomplish the objectives and purposes expressed in this opinion." (280 So.2d at pp. 439-440.)

It remains to identify the precise form of comparative negligence which we now adopt for application in this state. Although there are many variants, only the two basic forms need be considered here. The first of these, the so-called "pure" form of comparative negligence, apportions liability in direct proportion to fault in all cases. This was the form adopted by the Supreme Court of Florida in Hoffman v. Jones, supra, and it applies by statute in Mississippi, Rhode Island, and Washington. Moreover it is the form favored by most scholars and commentators. (See, e.g., Prosser, Comparative Negligence, supra, 41 Cal.L.Rev. 1, 21-25; Prosser, Torts, supra, § 67, pp. 437-438; Schwartz, supra, § 21.3, pp. 341-348; Comments on Maki v. Frelk — Comparative v. Contributory Negligence: Should the Court or Legislature Decide?, supra, 21 Vand.L.Rev. 889 (Comment by Keeton at p. 906, Comment by Leflar at p. 918).) The second basic form of comparative negligence, of which there are several variants, applies apportionment based on fault up to the point at which the plaintiff's negligence is equal to or greater than that of the defendant — when that point is reached, plaintiff is barred from recovery. Nineteen states have adopted this form or one of its variants by statute. The principal argument advanced in its favor is moral in nature: that it is not morally right to permit one more at fault in an accident to recover from one less at fault. Other arguments assert the probability of increased insurance, administrative, and judicial costs if a "pure" rather than a "50 percent" system is adopted, but this has been seriously questioned. (See authorities cited in Schwartz, supra, § 21.3, pp. 344-346; see also Vincent v. Pabst Brewing Co. (1970) 47 Wis.2d 120, 138 [177 N.W.2d 513] (dissenting opn.).)

We have concluded that the "pure" form of comparative negligence is that which should be adopted in this state. In our view the "50 percent" system simply shifts the lottery aspect of the contributory negligence rule^[21] to a different ground. As Dean Prosser has noted, under such a 828*828 system "[i]t is obvious that a slight difference in the proportionate fault may permit a recovery; and there has been much justified criticism of a rule under which a plaintiff who is charged with 49 percent of the total negligence recovers 51 percent of his damages, while one who is charged with 50 percent recovers nothing at all."^[22] (Prosser, Comparative Negligence, supra, 41 Cal.L.Rev. 1, 25; fns. omitted.) In effect "such a rule distorts the very principle it recognizes, i.e., that persons are responsible for their acts to the extent their fault contributes to an injurious result. The partial rule simply lowers, but does not eliminate, the bar of contributory negligence." (Juenger, Brief for Negligence Law Section of the State Bar of Michigan in Support of Comparative Negligence as Amicus Curiae, Parsonson v. Construction Equipment Company, supra, 18 Wayne L.Rev. 3, 50; see also Schwartz, supra, § 21.3, p. 347.)

We also consider significant the experience of the State of Wisconsin, which until recently was considered the leading exponent of the "50 percent" system. There that system led to numerous appeals on the narrow but crucial issue whether plaintiff's negligence was equal to defendant's. (See Prosser, Comparative Negligence, supra, 41 Cal.L.Rev. 1, 23-25.) Numerous reversals have resulted on this point, leading to the development of arcane classifications of negligence according to quality and category. (See cases cited in Vincent v. Pabst Brewing Co., supra, 47 Wis.2d 120, at p. 137 (dissenting opn.).) This finally led to a frontal attack on the system in the Vincent case, cited above, wherein the state supreme court was urged to replace the statutory "50 percent" rule by a judicially declared "pure" comparative negligence rule. The majority of the court rejected this invitation, concluding that the Legislature had occupied the field, but three concurring justices and one dissenter indicated their willingness to accept it if the Legislature failed to act with reasonable dispatch. The dissenting opinion of Chief Justice Hallows, which has been cited above, stands as a persuasive testimonial in favor of the "pure" system. We wholeheartedly embrace its reasoning. (See also, Hoffman v. Jones, supra, 280 So.2d 431, 438-439.)

(6) For all of the foregoing reasons we conclude that the "all-or-nothing" rule of contributory negligence as it presently exists in this 829*829 state should be and is herewith superseded by a system of "pure" comparative negligence, the fundamental purpose of which shall be to assign responsibility and liability for damage in direct proportion to the amount of negligence of each of the parties. Therefore, in all actions for negligence resulting in injury to person or property, the contributory negligence of the person injured in person or property shall not bar recovery, but the damages awarded shall be diminished in proportion to the amount of negligence attributable to the person recovering. (7, 8) The doctrine of last clear chance is abolished, and the defense of assumption of risk is also abolished to the extent that it is merely a variant of the former doctrine of contributory negligence; both of these are to be subsumed under the general process of assessing liability in proportion to negligence. Pending future judicial or legislative developments, the trial courts of this state are to use broad discretion in seeking to assure that the principle stated is applied in the interest of justice and in furtherance of the purposes and objectives set forth in this opinion.

It remains for us to determine the extent to which the rule here announced shall have application to cases other than those which are commenced in the future. (9) It is the rule in this state that determinations of this nature turn upon considerations of fairness and public policy. (Westbrook v. Mihaly (1970) 2 Cal.3d 765, 800 [87 Cal. Rptr. 839, 471 P.2d 487]; Connor v. Great Western Sav. & Loan Assn. (1968) 69 Cal.2d 850, 868 [73 Cal. Rptr. 369, 447 P.2d 609, 39 A.L.R.3d 224]; Forster Shipbldg. Co. v. County of L.A. (1960) 54 Cal.2d 450, 459 [6 Cal. Rptr. 24, 353 P.2d 736]; County of Los Angeles v. Faus (1957) 48 Cal.2d 672, 680-681 [312 P.2d 680].) Upon mature reflection, in view of the very substantial number of cases involving the matter here at issue which are now pending in the trial and appellate courts of this state, and with particular attention to considerations of reliance applicable to individual cases according to the stage of litigation which they have reached, we have concluded that a rule of limited retroactivity should obtain here. Accordingly we hold that the present opinion shall be applicable to all cases in which trial has not begun before the date this decision becomes final in this court, but that it shall not be applicable to any case in which trial began before that date (other than the instant case) — except that if any judgment be reversed on appeal for other reasons, this opinion shall be applicable to any retrial.

As suggested above, we have concluded that this is a case in which the litigant before the court should be given the benefit of the new rule 830*830 announced. Here, unlike in Westbrook v. Mihaly, supra, 2 Cal.3d 765, considerations of fairness and public policy do not dictate that a purely prospective operation be given to our decision.^[23] To the contrary, sound principles of decision-making compel us to conclude that, in the light of the particular circumstances of the instant case,^[24] the new rule here announced should be applied additionally to the case at bench so as to provide incentive in future cases for parties who may have occasion to raise "issues involving renovation of unsound or outmoded legal doctrines." (See Mishkin, Foreword, The Supreme Court 1964 Term (1965) 79 Harv.L.Rev. 56, 60-62.) We fully appreciate that there may be other litigants now in various stages of trial or appellate process who have also raised the issue here before us but who will nevertheless be foreclosed from benefitting from the new standard by the rule of limited retroactivity we have announced in the preceding paragraph. This consideration, however, does not lead us to alter that rule. "Inequity arguably results from according the benefit of a new rule to the parties in the case in which it is announced but not to other litigants similarly situated in the trial or appellate process who have raised the same issue. But we regard the fact that the parties involved are chance beneficiaries as an insignificant cost for adherence to sound principles of decision-making." (Stovall v. Denno (1967) 388 U.S. 293, 301 [18 L.Ed.2d 1199, 1206, 87 S.Ct. 1967]; fn. omitted.)

In view of the foregoing disposition of this case we have not found it necessary to discuss plaintiff's additional contention that the rule of contributory negligence is in violation of state and federal constitutional provisions guaranteeing equal protection of the laws.

The judgment is reversed.

Wright, C.J., Tobriner, J., and Burke, J.,^[*] concurred.

MOSK, J.

Although I concur in the judgment and agree with the substance of the majority opinion, I dissent from its cavalier treatment of the recurring problem of the manner of applying a new court-made rule.

831*831 In footnote 24 the opinion denies that the court now "is intending to overrule" the case of Westbrook v. Mihaly (1970) 2 Cal.3d 765 [87 Cal. Rptr. 839, 471 P.2d 487]. Whether or not the majority subjectively intend to overrule Westbrook, the result and the text of the opinion indicate beyond any doubt that they have actually done so. Precedent is established not merely by what a court says; it is created primarily by what a court does. (Norris v. Moody (1890) 84 Cal. 143, 149 [24 P. 37]; Childers v. Childers (1946) 74 Cal. App.2d 56, 61 [168 P.2d 218].)

Unfortunately the forthrightness of the majority opinion as a whole is sadly diminished by a curious reluctance to face up to reality by recognizing that this court is finally overruling Westbrook and several other cases on the subject of applying a new court-made rule to the parties at hand.

As recently as People v. Hitch (1974) 12 Cal.3d 641, 654 [117 Cal. Rptr. 9, 527 P.2d 361], the majority of this court, while upholding the appellant's contentions, denied him relief on a theory that prospectivity should prevail over retroactive application of a new rule. I pointed out in my dissent (id. at p. 655) that "there is a third, and preferable, alternative: applying the new rule to the aggrieved party responsible for bringing the issue to judicial attention, and thereafter prospectively."

Up to now the majority never deigned to consider the third alternative, but persisted in their erroneous notion that the only choice was between total retroactivity and absolute prospectivity. This occurred in two other cases last year: see my concurring opinion in In re Stewart (1974) 10 Cal.3d 902, 907 [112 Cal. Rptr. 520, 519 P.2d 568], and my dissenting opinion in In re Yurko (1974) 10 Cal.3d 857, 867 [112 Cal. Rptr. 513, 519 P.2d 561].

In retrospect it is clear that Westbrook v. Mihaly, supra, was the point of departure in which the majority first strayed from the accepted doctrine that a prevailing party is to be awarded the fruits of his victory. In my concurring and dissenting opinion in that case (2 Cal.3d at p. 802) and in Hitch (12 Cal.3d at p. 656) I quoted from Stovall v. Denno (1967) 388 U.S. 293 [18 L.Ed.2d 1199, 87 S.Ct. 1967], to the effect that the benefits of a new rule should apply to the parties to the proceeding which results in the new rule. In the instant case, the majority now quote that same portion of Stovall, this time with approval (ante, p. 830).

Also, in Westbrook v. Mihaly (2 Cal.3d at p. 804) I noted that if a new rule is to apply prospectively only, "it will tend to deter counsel from 832*832 presenting `issues involving renovation of unsound or outmoded legal doctrines,'" citing Mishkin's foreword to the article on the 1964 term of the Supreme Court in 79 Harvard Law Review 56. The majority now adopt the same point based upon the same quotation (ante, p. 830).

The majority paint their conclusion herein with such broad-brush and standardless terms as "considerations of fairness and public policy" and "sound principles of decision-making," without giving any clue why application of a new rule is fair to Nga Li, but somehow was unfair as applied over the past several years to Westbrook and to the several other litigants who helped us develop new rules of law only to be deprived of the benefits thereof. The most inexplicable previous result was Larez v. Shannon (1970) 2 Cal.3d 813 [87 Cal. Rptr. 871, 471 P.2d 519], in which, it will be remembered, the plaintiffs prevailed completely on principle, but the majority went so far as to reverse a judgment in their favor.

Nevertheless it is comforting that the majority of the court have finally settled on the third of the three available alternatives in applying a new court-made rule. Despite the majority's gratuitous disclaimer, the bench and bar will understand that this court is now overruling, insofar as they are inconsistent, the following opinions: Westbrook v. Mihaly, supra, 2 Cal.3d 765; Alhambra City Sch. Dist. v. Mize (1970) 2 Cal.3d 806 [87 Cal. Rptr. 867, 471 P.2d 515]; Larez v. Shannon, supra, 2 Cal.3d 813, Foytik v. Aronson (1970) 2 Cal.3d 818 [87 Cal. Rptr. 873, 471 P.2d 521]; In re Yurko, supra, 10 Cal.3d 857; People v. Hitch, supra, 12 Cal.3d 641.

CLARK, J.

I dissent.

For over a century this court has consistently and unanimously held that Civil Code section 1714 codifies the defense of contributory negligence. Suddenly — after 103 years — the court declares section 1714 shall provide for comparative negligence instead. In my view, this action constitutes a gross departure from established judicial rules and role.

First, the majority's decision deviates from settled rules of statutory construction. A cardinal rule of construction is to effect the intent of the Legislature.^[1] The majority concedes "the intention of the Legislature in 833*833 enacting section 1714 of the Civil Code was to state the basic rule of negligence together with the defense of contributory negligence modified by the emerging doctrine of last clear chance." (Ante, p. 821.) Yet the majority refuses to honor this acknowledged intention — violating established principle.

The majority decision also departs significantly from the recognized limitation upon judicial action — encroaching on the powers constitutionally entrusted to the Legislature. The power to enact and amend our statutes is vested exclusively in the Legislature. (Cal. Const., art. III, § 3; art. IV, § 1.) "This court may not usurp the legislative function to change the statutory law which has been uniformly construed by a long line of judicial decisions." (Estate of Calhoun (1955) 44 Cal.2d 378, 387 [282 P.2d 880].) The majority's altering the meaning of section 1714, notwithstanding the original intent of the framers and the century-old judicial interpretation of the statute, represents no less than amendment by judicial fiat. Although the Legislature intended the courts to develop the working details of the defense of contributory negligence enacted in section 1714 (see generally, Commentary, Arvo Van Alstyne, The California Civil Code, 6 West Civ. Code (1954) pp. 1-43), no basis exists — either in history or in logic — to conclude the Legislature intended to authorize judicial repudiation of the basic defense itself at any point we might decide the doctrine no longer serves us.

I dispute the need for judicial — instead of legislative — action in this area. The majority is clearly correct in its observation that our society has changed significantly during the 103-year existence of section 1714. But this social change has been neither recent nor traumatic, and the criticisms leveled by the majority at the present operation of contributory negligence are not new. I cannot conclude our society's evolution has now rendered the normal legislative process inadequate.

Further, the Legislature is the branch best able to effect transition from contributory to comparative or some other doctrine of negligence. Numerous and differing negligence systems have been urged over the years, yet there remains widespread disagreement among both the commentators and the states as to which one is best. (See Schwartz, Comparative Negligence (1974) Appendix A, pp. 367-369 and § 21.3, fn. 40, pp. 341-342, and authorities cited therein.) This court is not an investigatory body, and we lack the means of fairly appraising the merits of these competing systems. Constrained by settled rules of judicial review, we must consider only matters within the record or susceptible to 834*834 judicial notice. That this court is inadequate to the task of carefully selecting the best replacement system is reflected in the majority's summary manner of eliminating from consideration all but two of the many competing proposals — including models adopted by some of our sister states.^[2]

Contrary to the majority's assertions of judicial adequacy, the courts of other states — with near unanimity — have conceded their inability to determine the best system for replacing contributory negligence, concluding instead that the legislative branch is best able to resolve the issue.^[3]

By abolishing this century old doctrine today, the majority seriously erodes our constitutional function. We are again guilty of judicial chauvinism.

McComb, J., concurred.

On April 24, 1975, the opinion was modified to read as printed above.

[1] (See, for example, Sen. Bill No. 43 (1971 Reg. Sess.); Assem. Bill No. 694 (1971 Reg. Sess.); Sen. Bill No. 132 (1972 Reg. Sess.); Assem. Bill No. 102 (1972 Reg. Sess.); Sen. Bill No. 10 (1973 Reg. Sess.); Sen. Bill No. 557 (1973 Reg. Sess.); Assem. Bill No. 50 (1973 Reg. Sess.); Assem. Bill No. 801 (1973 Reg. Sess.); Assem. Bill No. 1666 (1973 Reg. Sess.); Sen. Bill No. 2021 (1974 Reg. Sess.).)

[2] See Tucker v. United Railroads (1916) 171 Cal. 702, 704-705 [154 P. 835]; Sego v. Southern Pacific Co. (1902) 137 Cal. 405, 407 [70 P. 279]; Summers v. Burdick (1961) 191 Cal. App.2d 464, 471 [13 Cal. Rptr. 68]; Haerdter v. Johnson (1949) 92 Cal. App.2d 547, 553 [207 P.2d 855].

[3] Dean Prosser states the kernel of critical comment in these terms: "It [the rule] places upon one party the entire burden of a loss for which two are, by hypothesis, responsible." (Prosser, Torts (4th ed. 1971) § 67, p. 433.) Harper and James express the same basic idea: "[T]here is no justification — in either policy or doctrine — for the rule of contributory negligence, except for the feeling that if one man is to be held liable because of his fault, then the fault of him who seeks to enforce that liability should also be considered. But this notion does not require the all-or-nothing rule, which would exonerate a very negligent defendant for even the slight fault of his victim. The logical corollary of the fault principle would be a rule of comparative or proportional negligence, not the present rule." (2 Harper & James, The Law of Torts (1956) § 22.3, p. 1207.)

[4] Dean Prosser, in a 1953 law review article on the subject which still enjoys considerable influence, addressed himself to the commonly advanced justificatory arguments in the following terms: "There has been much speculation as to why the rule thus declared found such ready acceptance in later decisions, both in England and in the United States. The explanations given by the courts themselves never have carried much conviction. Most of the decisions have talked about `proximate cause,' saying that the plaintiff's negligence is an intervening, insulating cause between the defendant's negligence and the injury. But this cannot be supported unless a meaning is assigned to proximate cause which is found nowhere else. If two automobiles collide and injure a bystander, the negligence of one driver is not held to be a superseding cause which relieves the other of liability; and there is no visible reason for any different conclusion when the action is by one driver against the other. It has been said that the defense has a penal basis, and is intended to punish the plaintiff for his own misconduct; or that the court will not aid one who is himself at fault, and he must come into court with clean hands. But this is no explanation of the many cases, particularly those of the last clear chance, in which a plaintiff clearly at fault is permitted to recover. It has been said that the rule is intended to discourage accidents, by denying recovery to those who fail to use proper care for their own safety; but the assumption that the speeding motorist is, or should be, meditating on the possible failure of a lawsuit for his possible injuries lacks all reality, and it is quite as reasonable to say that the rule promotes accidents by encouraging the negligent defendant. Probably the true explanation lies merely in the highly individualistic attitude of the common law of the early nineteenth century. The period of development of contributory negligence was that of the industrial revolution, and there is reason to think that the courts found in this defense, along with the concepts of duty and proximate cause, a convenient instrument of control over the jury, by which the liabilities of rapidly growing industry were curbed and kept within bounds." (Prosser, Comparative Negligence (1953) 41 Cal.L.Rev. 1, 3-4; fns. omitted. For a more extensive consideration of the same subject, see 2 Harper & James, supra, § 22.2, pp. 1199-1207.)

To be distinguished from arguments raised in justification of the "all or nothing" rule are practical considerations which have been said to counsel against the adoption of a fairer and more logical alternative. The latter considerations will be discussed in a subsequent portion of this opinion.

[5] Professor Keeton states the matter as follows in his Vanderbilt Law Review comment: "In relation to contributory negligence, as elsewhere in the law, uncertainty and lack of evenhandedness are produced by casuistic distinctions. This has happened, for example, in doctrines of last clear chance and in distinctions between what is enough to sustain a finding of primary negligence and what more is required to sustain a finding of contributory negligence. Perhaps even more significant, however, is the casuistry of tolerating blatant jury departure from evenhanded application of the legal rules of negligence and contributory negligence, with the consequence that a kind of rough apportionment of damages occurs, but in unpoliced, irregular, and unreasonably discriminatory fashion. Moreover, the existence of this practice sharply reduces the true scope of the substantive change effected by openly adopting comparative negligence. [¶] Thus, stability, predictability, and evenhandedness are better served by the change to comparative negligence than by adhering in theory to a law that contributory fault bars when this rule has ceased to be the law in practice." (21 Vand.L.Rev. at p. 916.)

A contrary conclusion is drawn in an article by Lewis F. Powell, Jr., now an Associate Justice of the United States Supreme Court. Because a loose form of comparative negligence is already applied in practice by independent American juries. Justice Powell argues, the "all-or-nothing" rule of contributory negligence ought to be retained as a check on the jury's tendency to favor the plaintiff. (Powell, Contributory Negligence: A Necessary Check on the American Jury (1957) 43 A.B.A.J. 1005.)

[6] Arkansas, Colorado, Connecticut, Georgia, Hawaii, Idaho, Maine, Massachusetts, Minnesota, Mississippi, Nebraska, Nevada, New Hampshire, New Jersey, North Dakota, Oklahoma, Oregon, Rhode Island, South Dakota, Texas, Utah, Vermont, Washington, Wisconsin, Wyoming. (Schwartz, Comparative Negligence (1974), Appendix A. pp. 367-369.)

In the federal sphere, comparative negligence of the "pure" type (see infra) has been the rule since 1908 in cases arising under the Federal Employers' Liability Act (see 45 U.S.C. § 53) and since 1920 in cases arising under the Jones Act (see 46 U.S.C. § 688) and the Death on the High Seas Act (see 46 U.S.C. § 766).

[6a] In employing the generic term "fault" throughout this opinion we follow a usage common to the literature on the subject of comparative negligence. In all cases, however, we intend the term to import nothing more than "negligence" in the accepted legal sense.

[7] Section 1714 of the Civil Code has never been amended. It provides as follows: "Everyone is responsible, not only for the result of his willful acts, but also for an injury occasioned to another by his want of ordinary care or skill in the management of his property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself. The extent of liability in such cases is defined by the Title on Compensatory Relief." (Italics added.)

[8] It should be observed that the Florida court held alternatively that even if contributory negligence was recognized by the common law prior to the day of American independence, and therefore was made a part of Florida law by the statute, it remained subject to judicial overruling because of its common law origin. (280 So.2d at pp. 435-436.)

[9] This impression is strengthened by a comparison of the language of section 1714 with the section of the Field draft on which it was modeled. Section 853 of the 1865 draft of the New York Civil Code, whose manifest intention was to state the strict rule of contributory negligence, uses the word "unless" in the position wherein its successor section 1714 substitutes "except so far as." (See fn. 12, infra.) As we shall explain, however, wisdom does not lie in drawing hasty conclusions from this change in language.

[10] In determining whether a specific code section was intended to depart from or merely restate the common law, weight is to be accorded the notes and comments of the Code Commissioners. (See O'Hara v. Wattson (1916) 172 Cal. 525, 534-535 [157 P. 608].)

[11] Section 1383 of the Code Napoleon (1804) provided: "Chacun est responsable du dommage qu'il a cause non seulement par son fait, mais encore par sa negligence ou par son imprudence." [Every person is responsible for the damage that he has caused not only by his act, but also by his negligence or by his imprudence.]

In 1872, article 2295 of the Louisiana Civil Code (now art. 2316) provided: "Every person is responsible for the damage he occasions not merely by his act, but by his negligence, his imprudence, or his want of skill."

[12] Section 853 of the 1865 Field draft of the New York Civil Code, along with its Code Commissioners' Note, provided: "Every one is responsible, not only for the result of his willful acts, but also for an injury occasioned to another by his want of ordinary care or skill in the management of his property or person;[1] unless the latter has, willfully, or by want or ordinary care, incurred the risk of such injury.[2] The extent of liability in such cases is defined by the Title on COMPENSATORY RELIEF.

"1. Code La., 2295; Code Napoleon, 1383; Austin v. Hudson River R.R. Co., 25 N.Y., 334; Jones v. Bird, 5 B. & Ald., 837; Dodd v. Holmes, 1 Ad. & El., 493.

"2. Johnson v. Hudson River R.R. Co., 20 N.Y., 69."

[13] The statute here in question (La. Code (1825) art. 2303) was not that cited by the Code Commissioners. (See fn. 11, ante, and accompanying text.)

[14] In 1872 two American jurisdictions, Illinois and Kansas, applied concepts of slight versus gross negligence — which was not really comparative negligence but another form of "all-or-nothing" rule according to which a slightly negligent plaintiff could recover 100 percent of his damages against a grossly negligent defendant. One jurisdiction, Georgia, had a true comparative negligence statute, but it was limited in application to railroad accidents. (Turk, supra, at pp. 304-318, 326-333.)

[15] The statement in some cases to the effect that section 1714 states a civil law rather than a common law principle (see Rowland v. Christian (1968) 69 Cal.2d 108, 112 [70 Cal. Rptr. 97, 443 P.2d 561, 32 A.L.R.3d 496]; Fernandez v. Consolidated Fisheries, Inc. (1950) 98 Cal. App.2d 91, 95-96 [219 P.2d 73]) is correct insofar as it indicates that the duty to refrain from injuring others through negligence has its roots in civil law concepts. (See Turk, supra, at p. 209.) It is incorrect, however, insofar as it might be read to indicate that defenses affecting recovery for breach of that basic duty are also rooted in the civil law. As we have shown, the defense of contributory negligence and its mitigative corollary, the doctrine of last clear chance, as they are stated in the statute, are clearly of common law origin.

[16] "Although ... the bulk of the Code was based upon the New York draft code, it nevertheless cannot be classified as a mere duplication thereof. On the contrary, the original California Civil Code bears the unmistakable imprint of a thoroughgoing critical reconsideration and evaluation of the New York provisions, and their recasting where necessary in the light of California statutory and decision law, with a view to the improvement of the whole structure." (Van Alstyne, supra, at p. 11.)

[17] It is difficult to understand why the Code Commissioners did not incorporate in their note citations to California cases dealing with the plaintiff's duty of care and the doctrine of last clear chance. Perhaps it was felt that a citation of the seminal English cases was sufficient to recognize the emerging principles. In any event, it is worthy of note that this court, in the 1869 decision of Needham v. S.F. & S.J.R. Co. (1869) 37 Cal. 409, had carefully examined the New York rule and had firmly rejected it in favor of the more humane English view. Of more than passing interest in the present premises is the following language from our opinion: "To this doctrine [the strict New York rule], however, notwithstanding the very respectable authority by which it is sustained, we are unable to assent. About the general rule upon which it is founded — that a plaintiff cannot recover for the negligence of the defendant, if his own want of care or negligence has in any degree contributed to the result complained of — there can be no dispute. (Gay v. Winter, 34 Cal. 153.) The reason of this rule is, that both parties being at fault, there can be no apportionment of the damages, and not that the negligence of the plaintiff justifies or excuses the negligence of the defendant, which would seem to be the true reason in the estimation of the New York Courts. The law does not justify or excuse the negligence of the defendant. It would, notwithstanding the negligence of the plaintiff, hold the defendant responsible, if it could. It merely allows him to escape judgment because, from the nature of the case, it is unable to ascertain what share of the damages is due to his negligence. He is both legally and morally to blame, but there is no standard by which the law can measure the consequences of his fault, and therefore, and therefore only, he is allowed to go free of judgment. The impossibility of ascertaining in what degree his negligence contributed to the injury being then the sole ground of his exemption from liability, it follows that such exemption cannot be allowed where such impossibility does not exist; or, in other words, the general rule that a plaintiff who is himself at fault cannot recover, is limited by the reason upon which it is founded." (37 Cal. 409, 419; italics added.) This language clearly contains the germ of a comparative approach, if not the outright statement that such an approach would be adopted if apportionment of damages were technically possible.

[18] It has been argued by one of the amici curiae that the mandatory use of special verdicts in negligence cases would require amendment of section 625 of the Code of Civil Procedure, which reposes the matter of special findings within the sound discretion of the trial court. (See Cembrook v. Sterling Drug Inc. (1964) 231 Cal. App.2d 52, 62-65 [41 Cal. Rptr. 492].) This, however, poses no problem at this time. For the present we impose no mandatory requirement that special verdicts be used but leave the entire matter of jury supervision within the sound discretion of the trial courts.

[19] BAJI No. 3.52 (1971 re-revision) currently provides: "Contributory negligence of a plaintiff is not a bar to his recovery for an injury caused by the wilful or wanton misconduct of a defendant. [¶] Wilful or wanton misconduct is intentional wrongful conduct, done either with knowledge, express or implied, that serious injury to another will probably result, or with a wanton and reckless disregard of the possible results. An intent to injure is not a necessary element of wilful or wanton misconduct. [¶] To prove such misconduct it is not necessary to establish that defendant himself recognized his conduct as dangerous. It is sufficient if it be established that a reasonable man under the same or similar circumstances would be aware of the dangerous character of such conduct."

[20] "Disallowing the contributory negligence defense in this context is different from last clear chance; the defense is denied not because defendant had the last opportunity to avoid the accident but rather because defendant's conduct was so culpable it was different in `kind' from the plaintiff's. The basis is culpability rather than causation." (Schwartz, supra, § 5.1, p. 100; fn. omitted.)

[21] "The rule that contributory fault bars completely is a curious departure from the central principle of nineteenth century Anglo-American tort law — that wrongdoers should bear the losses they cause. Comparative negligence more faithfully serves that central principle by causing the wrongdoers to share the burden of resulting losses in reasonable relation to their wrongdoing, rather than allocating the heavier burden to the one who, as luck would have it, happened to be more seriously injured." (Comments on Maki v. Frelk, supra, 21 Vand.L.Rev. 889, Comment by Keeton, pp. 912-913.)

[22] This problem is compounded when the injurious result is produced by the combined negligence of several parties. For example in a three-car collision a plaintiff whose negligence amounts to one-third or more recovers nothing; in a four-car collision the plaintiff is barred if his negligence is only one-quarter of the total. (See Juenger, Brief for Negligence Law Section of the State Bar of Michigan in Support of Comparative Negligence as Amicus Curiae, Parsonson v. Construction Equipment Company (1972) 18 Wayne L.Rev. 3, 50-51.)

[23] Indeed, as we have indicated in the preceding paragraph, such considerations have led us to permit application of the new rule to actions which have been commenced but have not yet been brought to trial.

[24] Nothing we say here today on this point is intended to overrule, in whole or in part, expressly or by implication, the case of Westbrook v. Mihaly, supra, 2 Cal.3d 765, or any other case involving the prospective or retrospective operation of our decisions.

[*] Retired Associate Justice of the Supreme Court sitting under assignment by the Chairman of the Judicial Council.

[1] Tyrone v. Kelley (1973) 9 Cal.3d 1, 10-11 [106 Cal. Rptr. 761, 507 P.2d 65]; Friends of Mammoth v. Board of Supervisors (1972) 8 Cal.3d 247, 256 [104 Cal. Rptr. 761, 502 P.2d 1049]; Mannheim v. Superior Court (1970) 3 Cal.3d 678, 686 [91 Cal. Rptr. 585, 478 P.2d 17]; Scala v. Jerry Witt & Sons, Inc. (1970) 3 Cal.3d 359, 366 [90 Cal. Rptr. 592, 475 P.2d 864]; Merrill v. Department of Motor Vehicles (1969) 71 Cal.2d 907, 918 [80 Cal. Rptr. 89, 458 P.2d 33].

[2] "It remains to identify the precise form of comparative negligence which we now adopt for application in this state. Although there are many variants, only the two basic forms need be considered here." (Ante, p. 827.)

[3] See, e.g., Codling v. Paglia (1973) 32 N.Y.2d 330, 344-345 [345 N.Y.S.2d 461, 298 N.E.2d 622]; McGraw v. Corrin (Del. 1973) 303 A.2d 641, 644; Bridges v. Union Pacific Railroad Company (1971) 26 Utah 2d 281 [488 P.2d 738]; Parsonson v. Construction Equipment Company (1971) 386 Mich. 61 [191 N.W.2d 465] (concurring opinion); Krise v. Gillund (N.Dak. 1971) 184 N.W.2d 405; Peterson v. Culp (1970) 255 Ore. 269 [465 P.2d 876]; Vincent v. Pabst Brewing Co. (1970) 47 Wis.2d 120 [177 N.W.2d 513]; Maki v. Frelk (1968) 40 Ill.2d 193 [239 N.E.2d 445, 32 A.L.R.3d 452]; compare Hoffman v. Jones (Fla. 1973) 280 So.2d 431.

John Vail (Center for Constitutional Litigation, P.C., Washington, D.C.), on brief, Bruce M. Plaxen (Plaxen & Adler, P.A., Columbia, MD; Lloyd J. Eisenberg of Lloyd J. Eisenberg & Associates P.A., Columbia, MD), on brief for Appellant/Cross-Appellee.

1150*1150 Wayne M. Willoughby (Gershon, Willoughby, Getz & Smith, LLC, Baltimore, MD), for Amicus Curiae brief of Professor Robert H. Lande in Support of Plaintiff-Petitioner.

Robert J. Zarbin (James K. MacAlister, Upper Marlboro, MD), for Amicus Curiae brief of Maryland Association for Justice in Support of Plaintiff-Petitioner.

Douglas W. Biser (Matthew P. Lalumia of Mudd, Harrison & Burch, L.L.P., Towson, MD), on brief, M. Albert Figinski (Peter G. Angelos and Jeffrey J. Utermohle of Law Offices of Peter G. Angelos, P.C., Baltimore, MD—Brief of Amicus Curiae, Law Offices of Peter G. Angelos, P.C.), on brief, for Appellees/Cross-Appellants.

Gardner M. Duvall (Danielle G. Marcus, Peter W. Sheehan, Jr. of Whiteford, Taylor & Preston, L.L.P., Baltimore, MD), for Amicus Curiae brief of Maryland Defense Counsel.

Karen J. Kruger (David M. Funk of Funk & Bolton, P.A., Baltimore, MD), for Amici Curiae brief of Local Government Insurance Trust, Maryland Association of Counties, Maryland Municipal League, Mayor and City Council of Baltimore.

Paul A. Tiburzi (Carville B. Collins of DLA Piper LLP (US), Baltimore, MD), for Amici Curiae brief of the Maryland Chamber of Commerce and the Maryland Tort Reform Coalition in Support of Appellees.

Mark A. Behrens, Esquire, Christopher E. Appel, Esquire, Shook, Hardy & Bacon L.L.P., Washington, DC, for Amici Curiae brief of the American Tort Reform Association, Chamber of Commerce of the United States of America, Coalition for Litigation Justice, Inc., American Insurance Association, Property Casualty Insurers Association of America, National Association of Mutual Insurance Companies, Physician Insurers Association of America, American Medical Association, and NFIB Small Business Legal Center in Support of Respondents.

Argued before BELL, C.J.,^[*] HARRELL, BATTAGLIA, GREENE, McDONALD, JOHN C. ELDRIDGE (Retired, Specially Assigned) and IRMA S. RAKER (Retired, Specially Assigned) JJ.

ELDRIDGE, J.

Thirty years ago, in Harrison v. Montgomery County Bd. of Educ., 295 Md. 442, 444, 456 A.2d 894 (1983), this Court issued a writ of certiorari to decide "whether the common law doctrine of contributory negligence should be judicially abrogated in Maryland and the doctrine of comparative negligence adopted in its place as the rule governing trial of negligence actions in this State." In a comprehensive opinion by then Chief Judge Robert C. Murphy, the Court in Harrison, 295 Md. at 463, 456 A.2d at 905, declined to abandon the doctrine of contributory negligence in favor of comparative negligence, pointing out that such change "involves fundamental and basic public policy considerations properly to be addressed by the legislature."

The petitioner in the case at bar presents the same issue that was presented in Harrison, namely whether this Court should change the common law and abrogate the defense of contributory negligence in certain types of tort actions. After reviewing the issue again, we shall arrive at the same conclusion that the Court reached in Harrison.

1151*1151 I.

The petitioner and plaintiff below, James Kyle Coleman, was an accomplished soccer player who had volunteered to assist in coaching a team of young soccer players in a program of the Soccer Association of Columbia, in Howard County, Maryland. On August 19, 2008, Coleman, at the time 20 years old, was assisting the coach during the practice of a team of young soccer players on the field of the Lime Kiln Middle School. While the Soccer Association of Columbia had fields of its own, it did not have enough to accommodate all of the program's young soccer players; the Association was required to use school fields for practices. At some point during the practice, Coleman kicked a soccer ball into a soccer goal. As he passed under the goal's metal top rail, or crossbar, to retrieve the ball, he jumped up and grabbed the crossbar. The soccer goal was not anchored to the ground, and, as he held on to the upper crossbar, Coleman fell backwards, drawing the weight of the crossbar onto his face. He suffered multiple severe facial fractures which required surgery and the placing of three titanium plates in his face. Coleman instituted the present action by filing a complaint, in the Circuit Court for Howard County, alleging that he was injured by the defendants' negligence.^[1] The defendant and respondent, the Soccer Association of Columbia, asserted the defense of contributory negligence.

At the ensuing jury trial, the soccer coach who had invited Coleman to help coach the soccer players testified that he had not inspected or anchored the goal which fell on Coleman. The coach also testified that the goal was not owned or provided by the Soccer Association, and he did not believe that it was his responsibility to anchor the goal. During the trial, the parties disputed whether the goal was located in an area under the supervision and control of the Soccer Association and whether the Soccer Association was required to inspect and anchor the goal. The Soccer Association presented testimony tending to show that, because the goal was not owned by the Soccer Association, the Soccer Association owed no duty to Coleman. The Soccer Association also presented testimony that the condition of the goal was open and obvious to all persons. The Association maintained that the accident was caused solely by Coleman's negligence.

Testimony was provided by Coleman to the effect that players commonly hang from soccer goals and that his actions should have been anticipated and expected by the Soccer Association. Coleman also provided testimony that anchoring goals is a standard safety practice in youth soccer.

At the close of evidence, Coleman's attorney proffered a jury instruction on comparative negligence.^[2] The judge declined 1152*1152 to give Coleman's proffered comparative negligence instruction and, instead, instructed the jury on contributory negligence.

The jury was given a verdict sheet posing several questions. The first question was: "Do you find that the Soccer Association of Columbia was negligent?" The jury answered "yes" to this question. The jury also answered "yes" to the question: "Do you find that the Soccer Association of Columbia's negligence caused the Plaintiff's injuries?" Finally, the jury answered "yes" to the question: "Do you find that the Plaintiff was negligent and that his negligence contributed to his claimed injuries?"

In short, the jury concluded that the Soccer Association of Columbia was negligent and that the Soccer Association's negligence caused Coleman's injuries. The jury also found that Coleman was negligent, and that his negligence contributed to his own injuries. Because of the contributory negligence finding, Coleman was barred from any recovery. The trial court denied Coleman's motion for judgment notwithstanding the verdict and subsequently entered judgment in favor of the Soccer Association of Columbia.

Coleman filed a notice of appeal, and the Soccer Association filed a notice of cross-appeal.^[3] Before briefing and argument in the Court of Special Appeals, Coleman filed in this Court a petition for a writ of certiorari, which was granted. Coleman v. Soccer Ass'n of Columbia, 425 Md. 396, 41 A.3d 570 (2012). In his petition, Coleman posed only one question: whether this Court should retain the standard of contributory negligence as the common law standard governing negligence cases in the State of Maryland.

We shall hold that, although this Court has the authority to change the common law rule of contributory negligence, we decline to abrogate Maryland's long-established common law principle of contributory negligence.

II.

This Court last addressed the continuing viability of the contributory negligence doctrine in Harrison v. Montgomery County Bd. of Educ., supra, 295 Md. 442, 456 A.2d 894. In Harrison, the Court held that the contributory negligence principle remained the valid standard in Maryland negligence cases and that "any change in the established doctrine [was for] the Legislature." 295 Md. at 463, 456 A.2d at 905.

Chief Judge Murphy, for the Court in Harrison, began his review of the contributory negligence standard by tracing the standard's historical origins to Lord Chief Justice Ellenborough's opinion in Butterfield v. Forrester, 11 East 60, 103 Eng. 1153*1153 Rep. 926 (K.B. 1809).^[4] As Harrison explained the case,

"Butterfield left a public inn at dusk, mounted his horse and rode off `violently' down the street. Forrester, who was effecting some repairs to his house, had placed a pole in the roadway. Although Butterfield could have seen and avoided the obstruction, he did not and was injured. The [English] court there noted:

`One person being in fault will not dispense with another's using ordinary care for himself. 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.' [11 East] at 61, 103 Eng. Rep. at 927."

The Harrison opinion explained that, when the contributory negligence standard was first judicially adopted in the United States, the courts at the time were concerned that juries would award to plaintiffs sums that had the potential to stifle "newly developing industry."^[5] Early American courts were also concerned that they should not adopt a policy in which "courts... assist a wrongdoer who suffered an injury as a result of his own wrongdoing." Harrison, 295 Md. at 450, 456 A.2d at 898. See also Smith v. Smith, 2 Pick. 621, 19 Mass. 621, 624 (1824) (a leading early American case incorporating the contributory negligence bar as part of common law).

This Court, relying on Butterfield v. Forrester, supra, first adopted the standard of contributory negligence in Irwin v. Sprigg, 6 Gill. 200, 205 (1847), stating:

"The established doctrine now is, that although the defendant's misconduct 1154*1154 may have been the primary cause of the injury complained of, yet the plaintiff cannot recover in an action of this kind, if the proximate and immediate cause of the damage can be traced to a want of ordinary care and caution on his part. Under such circumstances he must bear the consequences of his own recklessness or folly."

The contributory negligence standard was later modified in part by this Court's adoption of the last clear chance doctrine, see N. C. R.R. Co. v. State, Use of Price, 29 Md. 420, 436 (1868), which allowed a plaintiff to recover "if the defendant might, by the exercise of care on its part, have avoided the consequences of the neglect or carelessness" of the plaintiff. The Court recognized another exception to the contributory negligence standard where the plaintiff is under five years old. See Taylor v. Armiger, 277 Md. 638, 358 A.2d 883 (1975).

The Harrison Court examined the origins and impact of comparative negligence, noting that early in the 20th century, the Maryland General Assembly had adopted a form of comparative negligence for "certain perilous occupations," but had subsequently repealed the provisions. The Court in Harrison also pointed out that, as of 1983, of the thirty-nine states that had adopted comparative negligence, thirty-one had done so by statute, with the eight remaining states having adopted the principle by judicial action. The Court noted that it was "clear" that legal scholars "favored" the comparative negligence standard, as supported by "[a]n almost boundless array of scholarly writings." 295 Md. at 453, 456 A.2d at 899.

Nevertheless, the Harrison Court pointed to other considerations involved in changing the standard from contributory negligence to comparative negligence (295 Md. at 454-455, 456 A.2d at 900-901):

"Also to be considered is the effect which a comparative fault system would have on other fundamental areas of negligence law. The last clear chance doctrine, assumption of the risk, joint and several liability, contribution, setoffs and counterclaims, and application of the doctrine to other fault systems, such as strict liability in tort, are several of the more obvious areas affected by the urged shift to comparative negligence. Even that change has its complications; beside the `pure' form of comparative negligence, there are several `modified' forms, so that abrogation of the contributory negligence doctrine will necessitate the substitution of an alternate doctrine. Which form to adopt presents its own questions and the choice is by no means clear.... That a change from contributory to comparative negligence involves considerably more than a simple common law adjustment is readily apparent."

Harrison also examined those states which had abrogated the contributory negligence standard, pointing out that "most of the states which have adopted comparative negligence have done so by statute in derogation of the common law." 295 Md. at 456, 456 A.2d at 901. The Court observed that, in several of these states, the courts had refused to judicially abrogate the contributory negligence standard because they "expressly deferred on policy grounds to their respective legislatures." 295 Md. at 456, 456 A.2d at 901. Only eight state supreme courts, as of 1983, had adopted a comparative negligence standard by judicial decision.

The Harrison opinion further held that, when this Court is

"called upon, as here, to overrule our own decisions, consideration must be given to the doctrine of stare decisis— the policy which entails the reaffirmation 1155*1155 of a decisional doctrine of an appellate court, even though if considered for the first time, the Court might reach a different conclusion. Deems v. Western Maryland Ry., 247 Md. 95, 231 A.2d 514 (1966)." 295 Md. at 458, 456 A.2d at 902.

Chief Judge Murphy in Harrison continued his assessment by explaining that the principle of stare decisis should not be construed to

"inhibit [this Court] from changing or modifying a common law rule by judicial decision where we find, in light of changed conditions or increased knowledge, that the rule has become unsound in the circumstances of modern life, a vestige of the past, no longer suitable to our people." (295 Md. at 459, 456 A.2d at 903).

Nevertheless, Harrison concluded (295 Md. at 459, 456 A.2d at 903):

"[I]n considering whether a long-established common law rule—unchanged by the legislature and thus reflective of this State's public policy—is unsound in the circumstances of modern life, we have always recognized that declaration of the public policy of Maryland is normally the function of the General Assembly; that body, by Article 5 of the Maryland Declaration of Rights, is expressly empowered to revise the common law of Maryland by legislative enactment. See Felder v. Butler, 292 Md. [174], 183, 438 A.2d 494 [499]; Adler v. American Standard Corp., 291 Md. [31], 45, 432 A.2d 464 [472]. The Court, therefore, has been particularly reluctant to alter a common law rule in the face of indications that to do so would be contrary to the public policy of the State. See, e.g., Condore v. Prince George's Co., 289 Md. [516] 532, 425 A.2d 1011 [1019]."

In the years immediately prior to Harrison, from 1966 to 1982, the Maryland General Assembly had considered twenty-one bills seeking to change the contributory negligence standard. None of the bills had been enacted. The Harrison Court accorded a great deal of weight to the General Assembly's failure to enact any of these bills, stating:

"[T]he legislature's action in rejecting the proposed change is indicative of an intention to retain the contributory negligence doctrine." 295 Md. at 462, 456 A.2d at 904.

The Court further pointed out that enactment of a comparative negligence standard is not a single issue; instead, such a decision would encompass a variety of choices to be made, beginning with the initial inquiry of what form of comparative negligence to adopt, "pure" or one "of the several types of modified comparative negligence," 295 Md. at 462-463, 456 A.2d at 904. If Maryland's common law were to change, the Harrison opinion explained, the decision as to which form of comparative negligence to adopt "plainly involves major policy considerations" of the sort best left to the General Assembly. 295 Md. at 462, 456 A.2d at 904.

III.

Since the time of Harrison, this Court has continued to recognize the standard of contributory negligence as the applicable principle in Maryland negligence actions. See, e.g., Thomas v. Panco Management of Maryland, LLC, 423 Md. 387, 417, 31 A.3d 583, 601 (2011); Erie Insurance Exchange v. Heffernan, 399 Md. 598, 925 A.2d 636 (2007); Dehn v. Edgecombe, 384 Md. 606, 865 A.2d 603 (2005); Franklin v. Morrison, 350 Md. 144, 168, 711 A.2d 177, 189 (1998); County Commissioners v. Bell Atlantic, 346 Md. 160, 695 A.2d 171 (1997); Brady v. Parsons Co., 327 Md. 275, 609 A.2d 297 (1992); Wegad v. Howard Street Jewelers, 326 Md. 409, 605 A.2d 123 (1992); Liscombe v. Potomac Edison Co., 303 Md. 619, 495 A.2d 838 (1985).

1156*1156 Although the contributory negligence principle has been part of this State's common law for over 165 years, petitioners and numerous amici in this case urge this Court to abolish the contributory negligence standard and replace it with a form of comparative negligence. They argue contributory negligence is an antiquated doctrine, that it has been roundly criticized by academic legal scholars, and that it has been rejected in a majority of our sister states. It is also pointed out that contributory negligence works an inherent unfairness by barring plaintiffs from any recovery, even when it is proven, in a particular case, that a defendant's negligence was primarily responsible for the act or omission which resulted in a plaintiff's injuries. It is said that contributory negligence provides harsh justice to those who may have acted negligently, in minor ways, to contribute to their injuries, and that it absolves those defendants from liability who can find any minor negligence in the plaintiffs' behavior.

Petitioner correctly contends that, because contributory negligence is a court-created principle, and has not been embodied in Maryland statutes, this Court possesses the authority to change the principle. This Court has recognized that (Ireland v. State, 310 Md. 328, 331-332, 529 A.2d 365, 366 (1987)),

"[b]ecause of the inherent dynamism of the common law, we have consistently held that it is subject to judicial modification in light of modern circumstances or increased knowledge. Harris v. State, 306 Md. 344, 357, 509 A.2d 120 (1986); Kelley v. R.G. Industries, Inc., 304 Md. 124, 497 A.2d 1143 (1985). Equally well established is the principle that the common law should not be changed contrary to the public policy of this State set forth by the General Assembly. Kelley, supra, 304 Md. at 141, 497 A.2d [at 1151]; Harrison v. Mont. Co. Bd. of Educ., 295 Md. 442, 460-61, 456 A.2d 894 [903] (1983). In the area of civil common law this Court has not only modified the existing law but also added to the body of law by recognizing new causes of action. Kelley, supra, (recognizing cause of action against manufacturers or marketers for damages caused by `Saturday Night Special' handguns); Boblitz v. Boblitz, 296 Md. 242, 462 A.2d 506 (1983) (permitting negligence action by one spouse against another); Moxley v. Acker, 294 Md. 47, 447 A.2d 857 (1982)(deleting force as a required element of the action of forceable detainer); Adler v. American Standard Corp., 291 Md. 31, 432 A.2d 464 (1981) (recognizing tort of abusive or wrongful discharge); Lusby v. Lusby, 283 Md. 334, 390 A.2d 77 (1978) (abolishing the defense of interspousal immunity in the case of outrageous intentional torts); Harris v. Jones, 281 Md. 560, 380 A.2d 611 (1977) (recognizing tort of intentional infliction of emotional distress)."

The Court's ability to modify the common law was further underscored in Kelley v. R.G. Industries, Inc., 304 Md. 124, 140, 497 A.2d 1143, 1151 (1985):

"This Court has repeatedly said that `the common law is not static; its life and heart is its dynamism—its ability to keep pace with the world while constantly searching for just and fair solutions to pressing societal problems.' Harrison v. Mont. Co. Bd. of Educ., 295 Md. 442, 460, 456 A.2d 894 (1983). See Felder v. Butler, 292 Md. 174, 182, 438 A.2d 494 (1981). The common law is, therefore, subject to judicial modification in light of modern circumstances or increased knowledge. Jones v. State, 302 Md. 153, 161, 486 A.2d 184 (1985); Boblitz v. Boblitz, 296 Md. 242, 462 A.2d 506 (1983); 1157*1157 Condore v. Prince George's Co., 289 Md. 516, 425 A.2d 1011 (1981)."

See also, e.g., Bowden v. Caldor, 350 Md. 4, 710 A.2d 267 (1998)("as often pointed out, this Court has authority under the Maryland Constitution to change the common law"); Telnikoff v. Matusevitch, 347 Md. 561, 593 n. 29, 702 A.2d 230, 246 n. 29 (1997); Owens-Illinois v. Zenobia, 325 Md. 420, 469-470, 601 A.2d 633, 657 (1992).

Since the Harrison case, the General Assembly has continually considered and failed to pass bills that would abolish or modify the contributory negligence standard.^[6] The failure of so many bills, attempting to change the contributory negligence doctrine, is a clear indication of legislative policy at the present time. This Court in Moore v. State, 388 Md. 623, 641, 882 A.2d 256, 267 (2005), with regard to the failure of legislation, explained:

"Although the failure of a single bill in the General Assembly may be due to many reasons, and thus is not always a good indication of the Legislature's intent, under some circumstances, the failure to enact legislation is persuasive evidence of legislative intent. See, e.g., Lee v. Cline, 384 Md. 245, 255-256, 863 A.2d 297, 303-304 (2004); Arundel Corp. v. Marie, 383 Md. 489, 504, 860 A.2d 886, 895 (2004) (`The Legislature [has] declined invitations to modify the rule as [appellant] wishes'); Stearman v. State Farm, 381 Md. 436, 455, 849 A.2d 539, 550-551 (2004) (`The refusal of the Legislature to act to change a [statute] ... provides ... support for the Court to exercise restraint and refuse to step in and make the change'); In re Anthony R., supra, 362 Md. [51], 65-67, 763 A.2d [136], 144-145 (2000); State v. Sowell, 353 Md. 713, 723-724, 728 A.2d 712, 717-718 (1999) (`We have recognized that the General Assembly's failure to amend ... sometimes reflects its desired public policy'); State v. Bell, 351 Md. 709, 723, 720 A.2d 311, 318 (1998) (`Therefore, by declining to adopt the proposed language of the amending bill, the Legislature clearly did not intend' to adopt the result being urged); State v. Frazier, 298 Md. 422, 459, 470 A.2d 1269, 1288 (1984) (`All of these proposals [supporting different views of a statute advocated by the parties] were rejected by the General Assembly')."

The Moore opinion continued (388 Md. at 641-642, 882 A.2d at 267):

"Legislative inaction is very significant where bills have repeatedly been introduced in the General Assembly to accomplish a particular result, and where the General Assembly has persistently refused to enact such bills. See, e.g., Arundel Corp. v. Marie, supra, 383 Md. at 502-504, 860 A.2d at 894-896; Stearman v. State Farm, supra, 381 Md. at 455, 849 A.2d at 551 (`Every year since 2000, legislators have introduced bills in the General Assembly that would' accomplish what the appellant urges, but `[n]one of these bills were enacted'); Bozman v. Bozman, 376 Md. 461, 492, 830 A.2d 450, 469 (2003), quoting 1158*1158 Boblitz v. Boblitz, 296 Md. 242, 274, 462 A.2d 506, 521 (1983) (The Court will decline to adopt a particular position `where the Legislature repeatedly had rejected efforts to achieve legislatively that which we were asked to grant judicially'); Halliday v. Sturm, 368 Md. 186, 209, 792 A.2d 1145, 1159 (2002) (The Court refused to adopt positions `that have been presented on several occasions to the General Assembly' and `[s]o far, the Legislature has chosen not' to adopt them)...."

See also Potomac Valley Orth. v. Board of Physicians, 417 Md. 622, 640-641, 12 A.3d 84, 95 (2011).

The General Assembly's repeated failure to pass legislation abrogating the defense of contributory negligence is very strong evidence that the legislative policy in Maryland is to retain the principle of contributory negligence. Chief Judge Bell emphasized for the Court in Baltimore v. Clark, 404 Md. 13, 36, 944 A.2d 1122, 1135-1136 (2008), the following:

"It is well settled that, where the General Assembly has announced public policy, the Court will decline to enter the public policy debate, even when it is the common law that is at issue and the Court certainly has the authority to change the common law. Adler v. American Standard Corp., 291 Md. at 47, 432 A.2d at 473."

See Ireland v. State, supra, 310 Md. at 331, 529 A.2d at 366 ("[T]he common law should not be changed contrary to the public policy of the State as set forth by the General Assembly"); Kelley v. R.G. Industries, supra, 304 Md. at 141, 497 A.2d at 1151 ("[W]e have consistently recognized that common law principles should not be changed contrary to the public policy of the State set forth by the General Assembly").

For this Court to change the common law and abrogate the contributory negligence defense in negligence actions, in the face of the General Assembly's repeated refusal to do so, would be totally inconsistent with the Court's long-standing jurisprudence.

JUDGMENT OF THE CIRCUIT COURT FOR HOWARD COUNTY AFFIRMED. COSTS TO BE PAID BY THE APPELLANT JAMES COLEMAN.

BELL, C.J. and HARRELL, J., dissent.

BATTAGLIA, GREENE, McDONALD and RAKER, JJ. Concur.

HARRELL, J., dissenting, which BELL, C.J., joins.

Paleontologists and geologists inform us that Earth's Cretaceous period (including in what is present day Maryland) ended approximately 65 million years ago with an asteroid striking Earth (the Cretaceous-Paleogene Extinction Event), wiping-out, in a relatively short period of geologic time, most plant and animal species, including dinosaurs. As to the last premise, they are wrong. A dinosaur roams yet the landscape of Maryland (and Virginia, Alabama, North Carolina and the District of Columbia), feeding on the claims of persons injured by the negligence of another, but who contributed proximately in some way to the occasion of his or her injuries, however slight their culpability. The name of that dinosaur is the doctrine of contributory negligence. With the force of a modern asteroid strike, this Court should render, in the present case, this dinosaur extinct. It chooses not to do so. Accordingly, I dissent.

My dissent does not take the form of a tit-for-tat trading of thrusts and parries with the Majority opinion. Rather, I write for a future majority of this Court, which, I have no doubt, will relegate the fossilized 1159*1159 doctrine of contributory negligence to a judicial tar pit at some point.

I. The History of Contributory Negligence in Maryland

Under the doctrine of contributory negligence, a plaintiff who fails to exercise ordinary care for his or her own safety, and thus contributes proximately to his or her injury, "is barred from all recovery, regardless of the quantum of a defendant's primary negligence." Harrison v. Montgomery Cnty. Bd. of Ed., 295 Md. 442, 451, 456 A.2d 894, 898 (1983). Contributory negligence is the "neglect of duty imposed upon all men to observe ordinary care for their own safety," Potts v. Armour & Co., 183 Md. 483, 490, 39 A.2d 552, 556 (1944), and refers not to the breach of a duty owed to another, but rather to the failure of an individual to exercise that degree of care necessary to protect him or her self. Baltimore Cnty. v. State, Use of Keenan, 232 Md. 350, 362, 193 A.2d 30, 37 (1963). An "all-or-nothing" doctrine, contributory negligence operates in application as a total bar to recovery by an injured plaintiff.

The doctrine is of judicial "Big Bang" origin, credited generally to the 1809 English case of Butterfield v. Forrester (1809) 103 Eng. Rep. 926 (K.B.). In Butterfield, the court considered whether a plaintiff, injured while "violently" riding his horse on a roadway, by a pole negligently placed in the roadway, could recover damages. Denying recovery, Lord Ellenborough penned the first recognized incantation of contributory negligence, declaring, "One person being in fault will not dispense with another's using ordinary care for himself. 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." Id. at 927.

Soon after Butterfield, American courts began to recognize the doctrine of contributory negligence. See Smith v. Smith, 19 Mass. (2 Pick.) 621 (1824); William L. Prosser, Comparative Negligence, 51 Mich. L.Rev. 465, 468 (1953). Although early courts explained rarely the reasons for their adoption of the doctrine, scholars set forth later multiple reasons for its widespread acceptance in the U.S. in the nineteenth and early twentieth centuries. For example, its ascendance was considered a means of encouraging potential plaintiffs to comply with the relevant standard of care, 4 Harper, James & Gray on Torts, § 22.2 at 340 (3d ed. 2006) (hereinafter "Harper, James & Gray"); requiring plaintiffs to enter court with clean hands, Prosser & Keeton on the Law of Torts, § 65 at 451 (5th ed. 1984) (hereinafter "Prosser & Keeton"); and, insulating developing industry from liability and fostering economic growth by keeping in check plaintiff-minded juries. Id. at 452; 4 Harper, James & Gray, supra, § 22.1 at 328-30. The doctrine was seen also as consistent with "several unwritten policies of the [nineteenth and early twentieth century] common law"—specifically, the idea that courts should not assist someone who contributes to causing his or her own injuries, and the "passion for a simple issue that could be categorically answered yes or no..." Harrison, 295 Md. at 450, 456 A.2d at 897-98; see also Edward S. Digges, Jr. & Robert Dale Klein, Comparative Fault in Maryland: The Time Has Come, 41 Md. L.Rev. 276, 278 (1982); Prosser & Keeton, supra, § 65 at 452.

Whatever the initial justifications attributed to its birth, contributory negligence has been a mainstay of Maryland law since its adoption in Irwin v. Sprigg, 6 Gill 200 (1847).^[1] Since that time, Maryland courts 1160*1160 applied the doctrine of contributory negligence to bar recovery in negligence actions by at-fault plaintiffs. Exceptions evolved, however, to allow recovery in specific instances. For example, the defense of contributory negligence is not available against claimants under five years of age, Taylor v. Armiger, 277 Md. 638, 649, 358 A.2d 883, 889 (1976), in strict liability actions, Ellsworth v. Sherne Lingerie, Inc., 303 Md. 581, 597, 495 A.2d 348, 356 (1985), and in actions based on intentional conduct, Tucker v. State, Use of Johnson, 89 Md. 471, 486, 43 A. 778, 783 (1899); State Farm Mut. Auto. Ins. Co. v. Hill, 139 Md.App. 308, 316-18, 775 A.2d 476, 481-82 (2001). Additionally, the doctrine of last clear chance developed, Northern Cent. Ry. Co. v. State, Use of Price, 29 Md. 420, 436 (1868), to allow a plaintiff to recover, despite his or her contributory negligence, if he or she establishes "something new or sequential, which affords the defendant a fresh opportunity (of which he fails to avail himself) to avert the consequences of his original negligence."^[2] Sanner v. Guard, 236 Md. 271, 276, 203 A.2d 885, 888 (1964).

The all-or-nothing consequences of the application of contributory negligence have long been criticized nationally by scholars and commentators. See, e.g., Hilen v. Hays, 673 S.W.2d 713, 717 (Ky.1984) ("A list of the critics of contributory negligence as a complete bar to a plaintiff's recovery reads like a tort hall of fame. The list includes, among others, Campbell, Fleming, Green, Harper and James, Dreton, Leflar, Malone, Pound and Prosser."); Prosser, Comparative Negligence, supra, at 469 ("Criticism of the denial of recovery was not slow in coming, and it has been with us for more than a century."); 2 Dan B. Dobbs, Paul T. Hayden & Ellen M. Bublick, The Law of Torts, § 218 at 763 (2d ed. 2011) (hereinafter "Dobbs") ("The traditional contributory negligence rule was extreme not merely in results but in principle. No satisfactory reasoning has ever explained the rule."). Many have argued instead for, and most states have adopted,^[3] a system of comparative negligence which apportions damages between a negligent plaintiff and a negligent defendant according to each party's relative degree of fault. Thus, under a comparative negligence system, a plaintiff's contributory negligence does not bar recovery, but rather reduces proportionately his or her damages in relation to his or her degree of 1161*1161 fault.^[4] 2 Dobbs, supra, § 220 at 771.

This Court considered previously whether to replace the common law doctrine of contributory negligence with a system of comparative fault. See Harrison, 295 Md. 442, 456 A.2d 894; Pittsburg & Connellsville R.R. Co. v. Andrews, 39 Md. 329, 351 (1874) (noting that a doctrine requiring the relative fault of a plaintiff and defendant to be compared "has never been sanctioned in this State, but the exact contrary is the settled rule here"). We confronted this question most recently nearly thirty years ago. In Harrison, we considered whether to abrogate judicially contributory negligence in the midst of a nation-wide movement to transition to a system of comparative fault.^[5] We engaged first in a comparison of the historical and doctrinal principles of both contributory and comparative negligence. Harrison, 295 Md. at 449-53, 456 A.2d at 897-99. Although recognizing the growing trend toward adopting principles of comparative fault, id. at 456-58, 456 A.2d at 901-02, we noted, on the other hand, Maryland's long history of applying the doctrine of contributory negligence. Id. at 458, 456 A.2d at 902. See Irwin, 6 Gill at 205 (adopting the doctrine of contributory negligence); Pittsburg & Connellsville R.R. Co., 39 Md. at 351 (affirming Maryland's adherence to contributory, rather than comparative, negligence).

Although acknowledging further that jurisdictions transitioning from contributory negligence to comparative fault regimes experienced little difficulty in doing so, Harrison, 295 Md. at 454, 456 A.2d at 900, we noted that making such a doctrinal change requires consideration of a multitude of options and implications. Id. at 462-63, 456 A.2d at 904-05. For example, this Court would have to choose between a pure or modified fault system, and consider "the effect which a comparative fault system would have on other fundamental areas of negligence law," such as the "last clear chance doctrine, assumption of the risk, joint and several liability, contribution, setoffs and counterclaims, and application of the doctrine to other fault systems, such as strict liability in tort...." Id. at 455, 456 A.2d at 900. Noting the lack of uniformity among the systems adopted by new comparative fault jurisdictions in their treatment of these areas, we characterized the decision whether to adopt either pure or modified comparative fault as one "plainly involv[ing] major policy considerations." Id. at 462, 456 A.2d at 904.

Perhaps overawed by the difficult choices inherent in adopting comparative negligence, however, the Harrison court declined to ride atop the tsunami of states abandoning contributory negligence. Instead, 1162*1162 the Harrison majority observed that "scant attention" had been paid by the Maryland Bench and Bar to the relative merits of contributory and comparative negligence, id. at 458, 456 A.2d at 902, and that, although the Legislature had considered numerous bills proposing to adopt comparative fault, none were enacted ultimately. Id. at 461-62, 456 A.2d at 904. Thus, ignoring the great societal change nationally demonstrating the unsuitability of contributory negligence principles to modern life, but finding no evidence of that groundswell in Maryland, we deferred instead to the Legislature, inferring from its inaction an "intention to retain the contributory negligence doctrine" as the public policy of the State of Maryland. Id. at 462, 456 A.2d at 904. We concluded:

All things considered, we are unable to say that the circumstances of modern life have so changed as to render contributory negligence a vestige of the past, no longer suitable to the needs of the people of Maryland. In the final analysis, whether to abandon the doctrine of contributory negligence in favor of comparative negligence involves fundamental and basic public policy considerations properly to be addressed by the legislature. We therefore conclude ... that while we recognize the force of the plaintiff's argument, in the present state of the law, we leave any change in the established doctrine to the Legislature.

Id. at 463, 456 A.2d at 905 (internal quotation marks and citations omitted). We are given straightforwardly in the present case another opportunity to replace the doctrine of contributory negligence with a system of comparative fault.

II. The Maryland Court of Appeals Has the Power to Abrogate Contributory Negligence

Unquestionably (as the Majority opinion agrees—see Maj. op. at 691-93, 69 A.3d at 1156-57), this Court has the power to change the doctrine of contributory negligence. Although the common law may be changed also by legislative act, Md. Const. Decl. of Rts. art. 5, we have stated frequently that it is "our duty to determine the common law as it exists in this State." Pope v. State, 284 Md. 309, 341-42, 396 A.2d 1054, 1073 (1979) (quoting Ass'n of Taxi Oprs. v. Yellow Cab Co., 198 Md. 181, 204, 82 A.2d 106, 117 (1951)). See also Tracey v. Solesky, 427 Md. 627, 639-40, 50 A.3d 1075, 1081-82 (2012) (quoting Ireland v. State, 310 Md. 328, 331-32, 529 A.2d 365, 366 (1987)); McGarvey v. McGarvey, 286 Md. 19, 27, 405 A.2d 250, 254 (1979). Contributory negligence is, and has always been, a common law doctrine of judicial origin in this State. See Irwin, 6 Gill 200. In the absence of codification by the Legislature, the defense of contributory negligence remains a dependent of the common law, and as such, is within the province of its parent, this Court, to abrogate or modify that to which it gave birth and nurtured. See, e.g., Price v. State, 405 Md. 10, 23, 949 A.2d 619, 627 (2008) (noting that because "the Maryland principles governing inconsistent verdicts are neither reflected in statutes nor in the Rules promulgated by this Court[,] ... those principles ... [are] part of Maryland common law" and subject to judicial modification); Jones v. State, 303 Md. 323, 337 n. 10, 493 A.2d 1062, 1069 n. 10 (1985) ("The common law rule may, within constitutional constraints, be changed or modified by ... judicial decision...."); Ireland, 310 Md. at 331, 529 A.2d at 366 ("[T]he determination of what part of th[e] common law is consistent with the spirit of Maryland's Constitution and her political institutions[] are to be made by this Court.").

In accordance with our authority to alter the common law, Petitioner James Coleman ("Coleman") urges this Court to abolish 1163*1163 the doctrine of contributory negligence, arguing that it is a vestige of the past. In response, Respondent Soccer Association of Columbia ("SAC") and its Amici^[6] claim principally that this Court is bound by its decision in Harrison to retain the doctrine of contributory negligence; but, assuming that we are not bound by Harrison, Respondent contends that the abrogation of contributory negligence is more appropriate for legislative, rather than judicial, action, due to the complex policy considerations involved in adopting comparative negligence. I disagree. Principles of stare decisis do not require continued adherence to our decision in Harrison, nor does this Court owe continued deference to the General Assembly simply because of the difficult choices inherent in formulating a comparative negligence rule. Thus, I would abolish the doctrine of contributory negligence and replace it with comparative fault—"not because [it is] easy, but because [it is] hard." President John F. Kennedy, Address at Rice University on the Nation's Space Effort (12 Sept. 1962).^[7]

A. Stare Decisis Does Not Require Retention of the Doctrine of Contributory Negligence

Under the doctrine of stare decisis, changes in long-standing "decisional doctrine are left to the Legislature" for purposes of "certainty and stability." Harrison, 295 Md. at 458-59, 456 A.2d at 902 (quoting Deems v. Western Md. Ry. Co., 247 Md. 95, 102, 231 A.2d 514, 518 (1967)). Stare decisis, meaning to stand by the thing decided, "promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process." Livesay v. Baltimore Cnty., 384 Md. 1, 14, 862 A.2d 33, 40-41 (2004) (quoting Payne v. Tennessee, 501 U.S. 808, 827, 111 S.Ct. 2597, 2609, 115 L.Ed.2d 720 (1991)). Notwithstanding the doctrine of stare decisis, the common law remains "subject to judicial modification in the light of modern circumstances or increased knowledge." Ireland, 310 Md. at 331, 529 A.2d at 366. As we stated in Harrison, we have never construed the doctrine of stare decisis "to inhibit us from changing or modifying a common law rule by judicial decision where we find, in light of changed conditions or increased knowledge, that the rule has become unsound in the circumstances of modern life, a vestige of the past, no longer suitable to our people." 295 Md. at 459, 456 A.2d at 903.

Although this Court has declined frequently to alter long-standing common law rules, see, e.g., Fennell v. Southern Md. Hosp. Ctr., 320 Md. 776, 786-87, 580 A.2d 206, 211 (1990) (refusing to revise the common law to permit damages for "lost chance of survival" claims in medical malpractice 1164*1164 actions); Frye v. Frye, 305 Md. 542, 567, 505 A.2d 826, 839 (1986) (declining to overturn parent-child immunity in motor tort cases); State v. Minster, 302 Md. 240, 245, 486 A.2d 1197, 1199 (1985) (refusing to abrogate the common law "year and a day rule"), we may depart from principles of stare decisis in two circumstances: (1) when a prior decision was "clearly wrong and contrary to established principles," Tracey, 427 Md. at 659, 50 A.3d at 1093 (quoting State v. Adams, 406 Md. 240, 259, 958 A.2d 295, 307 (2008)), or (2) "when precedent has been superseded by significant changes in the law or facts." Id. (citing Harrison, 295 Md. at 459, 456 A.2d at 903). For example, in B & K Rentals & Sales Co. v. Universal Leaf Tobacco Co., we abandoned the common law rule of res gestae in favor of the version set forth in the Federal Rules of Evidence, after noting our "[i]ncreased knowledge," "the guidance of a significant majority of other states," and the near-universal condemnation of the common law rule by both courts and commentators. 324 Md. 147, 158, 596 A.2d 640, 645 (1991). Similarly, in Julian v. Christopher, we departed from our prior interpretation of silent consent clauses allowing landlords to refuse unreasonably and arbitrarily a lessee's request to sublet or assign a lease in favor of a standard of reasonableness, after noting summarily that the common law interpretation is a "vestige of the past" and contrary to established public policy. 320 Md. 1, 8-9, 575 A.2d 735, 738-39 (1990).

This Court has shown a willingness to depart from its stale decisions even where we expressed previously an intention to defer to legislative action on a longstanding, but widely-disfavored, common law rule. For example, we declined for decades to abrogate the common law interspousal immunity doctrine prohibiting married women from maintaining actions in tort against their husbands, in each instance deferring expressly to the Legislature. See Stokes v. Ass'n of Indep. Taxi Operators, Inc., 248 Md. 690, 692, 237 A.2d 762, 763 (1968) ("[I]f the rule is to be changed, the Legislature will have to do it."); Ennis v. Donovan, 222 Md. 536, 543, 161 A.2d 698, 702 (1960) ("We can only repeat that if it be desirable to permit a married woman, under certain circumstances, to sue her husband in tort, this authorization should emanate from the Legislature, not from the courts."); Fernandez v. Fernandez, 214 Md. 519, 524, 135 A.2d 886, 889 (1957) ("We think the appellant here must proceed in equity unless the Legislature sees fit to change the law."); Gregg v. Gregg, 199 Md. 662, 667, 87 A.2d 581, 583 (1952) ("[T]hese ancient theories which form a part of the common law have to be followed by us unless they have been changed by legislative action....").

Shortly after our decision in Harrison, however, we abrogated the common law doctrine of interspousal immunity in negligence actions.^[8] Boblitz v. Boblitz, 296 Md. 242, 462 A.2d 506 (1983). In so doing, we distanced ourselves from our prior cases and characterized the decision as one appropriate 1165*1165 for judicial action.^[9] We considered persuasive the evolution of society's conceptions regarding women and the trend toward abrogation in other states, concluding that the foundation of the doctrine no longer coincided with modern values. Thus, we determined that we could depart fairly from principles of stare decisis and overrule the doctrine's application in negligence actions as a "vestige of the past." Id. at 273-75, 462 A.2d at 521-22. We distinguished Harrison, however, as both possessing a history of legislative inaction on proposed bills (lacking in the context of interspousal immunity) and involving necessarily more complex issues, stating that Harrison represented an attempt to grant judicially that which "the Legislature repeatedly had rejected efforts to achieve legislatively." Id. at 274, 462 A.2d at 521. Yet, we emphasized that, despite our decision in Harrison, it remains well within the authority of this Court to abrogate an outmoded rule of the common law. Id. at 274, 462 A.2d at 522.

We abandoned completely the doctrine of interspousal immunity finally in Bozman v. Bozman, 376 Md. 461, 830 A.2d 450 (2003). We noted that, because forty-six states had done so already, in full or in part, "the trend and, indeed, the great weight of authority" was in favor of abrogating the common law doctrine as "outdated and serv[ing] no useful purpose." Id. at 487-88, 830 A.2d at 466. Although we acknowledged that certain aspects of the common law concept, upon which the doctrine rested at its conception, would be retained in various provisions of the Maryland Code, we found such remnants insufficient to shield the doctrine from judicial abolition. Id. at 489, 830 A.2d at 466-67. Considering the decisions of our sister jurisdictions to be persuasive authority in analyzing the arguments "both in support of, and against, retention of the interspousal immunity rule," id. at 490, 830 A.2d at 467, we determined that the doctrine of stare decisis did not require strict adherence to the doctrine or continued legislative deference. Id. at 494-95, 830 A.2d at 470.

Thus, as our abrogation of the interspousal tort immunity doctrine demonstrates, this Court has not only the power, but also the responsibility (Harrison notwithstanding) to abrogate the doctrine of contributory negligence if it concludes that the state of society and law have changed so that contributory negligence is a vestige of the past, unsuitable to the conditions of modern life. To that end, this Court reviews the foundation of the doctrine to determine its continued relevance in modern society, and considers persuasive, although not binding, the actions of other states on this issue. See id. at 490, 830 A.2d at 467. Additionally, we may analyze, to some degree (limited by the factual record before us), "the public policy concerns raised by the parties and by the other courts which have grappled with this issue." State v. Wiegmann, 350 Md. 585, 607, 714 A.2d 841, 851 (1998) (quoting Gaver v. Harrant, 316 Md. 17, 30, 557 A.2d 210, 217 (1989)).

As noted above, the widespread acceptance of contributory negligence as a complete defense is attributed principally to (1) the desire to protect the nations' newly-developing industry from liability and plaintiff-minded juries, E.A. Turk, Comparative Negligence on the March, 28 Chi.-Kent L.Rev. 189, 201 (1950); 4 Harper, James & Gray, supra, § 22.1 at 328-30; and (2) "the concept prevalent at the time 1166*1166 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." Scott v. Rizzo, 96 N.M. 682, 634 P.2d 1234, 1237 (1981) (citing F. Harper and F. James, Law of Torts, § 22.1 at 1198 (1956)). Neither of these justifications, however, carry weight in present-day Maryland. In today's society,^[10] there has been no need demonstrated to protect any "newly-developing" industry at the expense of injured litigants. Industry generally in this nation is no longer fledgling or so prone to withering at the prospect of liability. See, e.g., Alvis v. Ribar, 85 Ill.2d 1, 52 Ill.Dec. 23, 421 N.E.2d 886, 893 (1981) ("There is no longer any justification for providing the protective barrier of the contributory negligence rule for industries of the nation at the expense of deserving litigants."); Frummer v. Hilton Hotels Int'l, Inc., 60 Misc.2d 840, 304 N.Y.S.2d 335, 341-42 (N.Y.Sup.1969) ("Courts now do not feel any need to act as a protector of our nation's infant industries, for their infancy has long since passed.... In an age where a defendant may through various means, such as insurance, readily protect himself from a ruinous judgment, the solicitude of nineteenth century courts for defendants is certainly out of place...."). Moreover, tilting the scales to favor industry is inconsistent with modern conceptions of justice, which focus instead on proportional responsibility and fundamental fairness. See Hilen v. Hays, 673 S.W.2d 713, 718 (Ky. 1984) ("It may well be that the 19th century judicial mind perceived of the need for courts to tilt the scales of justice in favor of defendants to keep the liabilities of growing industry within some bounds. But assuming such a rule was ever viable, 1167*1167 certainly it no longer comports to present day morality and concepts of fundamental fairness." (internal citation and quotation marks omitted)); Robert H. Lande & James MacAlister, Comparative Negligence with Joint & Several Liability: The Best of Both Worlds, U. Balt. L.Rev. Online 1, 2 (2012) (noting that Maryland's system of contributory negligence "frustrate[s] the interests of justice as to the litigants"). Rather, the array of Amici lined up in support of the continuation of contributory negligence is populated by the entrenched and established business interests who seek to maintain an economic advantage.

The evolution of society's conceptions of justice is exemplified by the move of tort law away from traditional "all-or-nothing" recovery rules and toward allocation of the burden of liability among at-fault parties. Guido Calabresi & Jeffrey O. Cooper, The Monsanto Lecture: New Directions in Tort Law, 30 Val. U.L. Rev. 859, 868 (1995). Liability, in negligence actions, "follows tortious conduct." Austin v. Mayor & City Council of Baltimore, 286 Md. 51, 83, 405 A.2d 255, 272 (1979) (Cole, J., dissenting); Scott, 634 P.2d at 1241 ("Liability based on fault is the cornerstone of tort law...."). Contributory negligence is at odds with this fundamental premise. By barring recovery completely to a contributorily negligent plaintiff, the rule "visits the entire loss caused by the fault of two parties on one of them alone, and that one the injured plaintiff, least able to bear it, and quite possibly much less at fault than the defendant who goes scot-free." Prosser, Comparative Negligence, supra, at 469.

Respondent and its Amici count as a strength of the doctrine of contributory negligence its inflexibility in refusing to compensate any, even marginally, at-fault plaintiff. They argue that, in so doing, contributory negligence encourages personal responsibility by foreclosing the possibility of recovery for potential, negligent plaintiffs, and thus cannot possibly be outmoded.^[11] To the contrary, that the doctrine of contributory negligence grants one party a windfall at the expense of the other is, as courts and commentators alike have noted, unfair manifestly as a matter of policy. See, e.g., Kaatz v. State, 540 P.2d 1037, 1048 (Alaska 1975) ("The central reason for adopting a comparative negligence system lies in the inherent injustice of the contributory negligence rule."); Hoffman v. Jones, 280 So.2d 431, 436 (Fla.1973) ("Whatever may have been the historical justification for [the rule of contributory negligence], today it is almost universally regarded as unjust and inequitable to vest an entire accidental loss on one of the parties whose negligent conduct combined with the negligence of the other party to produce the loss."); Lande & MacAlister, supra, at 4 ("The `all or nothing' system [of contributory negligence], disconnected from a party's degree of fault, is unfair and counterintuitive."); Prosser, Comparative Negligence, supra, at 469 (characterizing contributory negligence as "outrageous" and an "obvious 1168*1168 injustice" that "[n]o one has ever succeeded in justifying ..., and no one ever will"). Moreover, if contributory negligence encourages would-be plaintiffs to exercise caution with respect to themselves, then so too does the doctrine of comparative fault by reducing the plaintiff's recoverable damages. Unlike contributory negligence, however, comparative fault deters also negligence on the part of the defendant by holding him or her responsible for the damages that he or she inflicted on the plaintiff. See Lande & MacAlister, supra, at 5-6 (noting that, although contributory negligence systems "burden[] only plaintiffs with the obligation to take precautions," comparative negligence provides a "mixture of responsibility" that is "the best way to prevent most accidents"); Prosser, Comparative Negligence, supra, at 468 ("[T]he assumption that the speeding motorist is, or should be meditating on the possible failure of a lawsuit for his possible injuries lacks all reality, and it is quite as reasonable to say that the rule promotes accidents by encouraging the negligent defendant."). Thus, Respondent's contention that contributory negligence encourages personal responsibility, and is therefore preferable to comparative negligence, is unpersuasive.

Respondent contends also that the foundation of contributory negligence remains strong because, as we said in Harrison, "Maryland cases do not reflect any general dissatisfaction with the contributory negligence doctrine." 295 Md. at 458, 456 A.2d at 898. That the courts of this State have applied uniformly the doctrine, however, does not mean that we did not recognize along the way its flaws.^[12] See Bozman, 376 Md. at 472, 830 A.2d at 457. For example, as Judge Eldridge noted recently, our retention of contributory negligence garnered extensive criticism—"few if any other legal principles have been criticized as much as this Court's continued adherence in negligence actions to the doctrine of contributory negligence and the Court's refusal to adopt comparative negligence." State v. Adams, 406 Md. 240, 332, 958 A.2d 295, 351 (2008) (Eldridge, J., dissenting), overruled by Unger v. State, 427 Md. 383, 48 A.3d 242 (2012). The Court of Special Appeals also noted similar criticism, calling the doctrine "harsh and pitiless," and noted that we are among the severe minority of states adhering still to it. See Preston Carter v. Senate Masonry, Inc., 156 Md. App. 162, 175, 846 A.2d 50, 58 (2004); see also Stewart v. Hechinger Stores Co., 118 Md.App. 354, 359, 702 A.2d 946, 949 (1997) ("Although we are aware of the often harsh consequences of Maryland's common law doctrine of contributory negligence, and that it has been abandoned by a vast majority of states in favor of some form of comparative negligence, we are in no position summarily to do so.").

1169*1169 Moreover, since our decision in Harrison, the doctrine of comparative negligence has continued to be accepted elsewhere as the superior legal principle. At the time Harrison was decided, thirty-nine states had replaced the doctrine of contributory negligence with some form of comparative negligence. See 295 Md. at 453, 456 A.2d at 899. This trend has continued unabated. Today, the number of states applying comparative negligence is forty-six, and not one jurisdiction adopting it has since retreated and re-adopted contributory negligence. Rather, seven additional states have enacted comparative negligence systems since Harrison. What was at the time of Harrison a quickening trend within the United States is today an established principle of law in nearly every right-thinking common law jurisdiction in the world, see Placek v. City of Sterling Heights, 405 Mich. 638, 275 N.W.2d 511, 515 (1979) ("[A]lmost every common-law jurisdiction outside the United States has discarded contributory negligence and has adopted in its place a more equitable system of comparative negligence."); John W. Wade, A Uniform Comparative Fault Act—What Should it Provide?, 10 U. Mich. J.L. Reform 220, 221 (1977) (noting that after England, Canada, and Australia abrogated contributory negligence, the United States became the "primary location of the contributory negligence rule"), with the exception of Maryland, Alabama, the District of Columbia, North Carolina, and Virginia. See 2 Dobbs, supra, § 220 at 772.

Respondent argues, in effect, that there has not been a significant change in the state of law or society since Harrison, and therefore there is no reason to depart from stare decisis and reconsider whether the doctrine of contributory negligence should be retained in the State of Maryland. I could not disagree more. At the time Harrison was decided, the country was in the midst of a broad reform effort sweeping the nation. The doctrine of comparative fault was of fairly recent vintage at the time Harrison was filed, adopted in most states in the ten years prior to our decision. See Robert D. Cooter & Thomas S. Ulen, An Economic Case for Comparative Negligence, 61 N.Y.U. L.Rev. 1067, 1075 (1986) (noting that most states adopted comparative negligence in the 1970s and early 1980s). Essentially, Respondent contends that, because our decision in Harrison was made when the movement toward reform of negligence principles was well underway, this Court is constrained to retain the doctrine forever, having missed the single opportunity to get on board the train. Respondent's argument seems to suggest that, so long as there is some delay in abandoning an unjust law, the unjust law remains irretrievably an albatross tied around the neck of our common law, unless and until the Legislature decides to save us.^[13] As our decision in Bozman demonstrates, however, our authority to modify the common law and overrule prior decisions is not so limited.

Although only seven additional states have implemented comparative fault since Harrison, forty-six states now employ comparative fault.^[14] Comparative fault is 1170*1170 no longer a trend or a doctrine of recent vintage, but rather is an established and integral doctrine to the negligence systems of nearly every state in the country. Other jurisdictions, most notably those that abrogated contributory negligence judicially, have decades of experience applying comparative fault—experience that, in large part, was lacking at the time we decided Harrison. The twelve states to abrogate contributory negligence by judicial decision provide examples of how comparative negligence is applied, how it impacts collateral doctrines and fault systems, and how it is applied in reality.^[15] In essence, this Court may foresee more clearly today potential impacts and complications, as well as the value of a comparative fault system, than was possible in 1983. Maryland is no longer at the crest of a wave of reform—instead, it has been left behind, one of the last bastions of contributory negligence in a world which has discarded it as unjust and outmoded. In my estimation, this qualifies certainly as a significant change warranting reconsideration of Harrison.

Although I recognize certainly the value of the doctrine of stare decisis, see, e.g., Unger v. State, 427 Md. 383, 418, 48 A.3d 242, 262 (2012) (Harrell, J., dissenting), I do not believe that in this instance, strict adherence is appropriate or warranted. See, e.g., Alvis, 52 Ill.Dec. 23, 421 N.E.2d at 896 ("Clearly, the need for stability in law must not be allowed to obscure the changing needs of society or to veil the injustice resulting from a doctrine in need of reevaluation."); McIntyre v. Balentine, 833 S.W.2d 52, 56 (Tenn.1992)(declining to "mindless[ly]" follow stare decisis). I do not believe that because Harrison reaffirmed the vitality of contributory negligence in this State, absent legislative action, this Court is muted forever on the topic. The bounds of stare decisis are not so strict. Continued adherence to the doctrine of contributory negligence as rote obeisance to the principles of stare decisis and legislative deference "represents judicial inertia rather than a reasoned consideration of the intrinsic value of the rule." Kaatz, 540 P.2d at 1049. Contributory negligence is no longer justified, has been discarded by nearly every other jurisdiction, and is manifestly unjust. Thus, I conclude that contributory negligence is a vestige of the past, and that in considering whether to abrogate the doctrine of contributory negligence, we are not bound by our decision in Harrison.

B. This Court Need Not Defer to Continued Legislative Inaction

Respondent argues that, notwithstanding our decision in Harrison, whether to abrogate contributory negligence in favor of comparative fault is a matter more properly suited to the legislative, rather than judicial, process. In Harrison, we noted that "in considering whether a long-established common law rule—unchanged by the legislature and thus reflective of this State's public policy—is unsound in the circumstances of modern life, we have always recognized that declaration of the public policy of Maryland is normally the function of the General Assembly." 295 Md. at 460, 456 A.2d at 903. Because declaration of public policy is generally a matter for the Legislature, we declared our "particular[] reluctan[ce] to alter a common law rule in the face of indications 1171*1171 that to do so would be contrary to the public policy of the State[,]" id., and noted that we owe "initial deference to the legislature where change is sought in a long-established and well-settled common law principle." Id. at 461, 456 A.2d at 904.

In considering whether the doctrine of contributory negligence was declared the public policy of the State of Maryland, we placed particular emphasis on the Legislature's consideration of numerous bills proposing to adopt the doctrine of comparative negligence. Specifically, we noted that between 1966 and 1982, the General Assembly considered twenty-one bills proposing the adoption of comparative negligence, yet none passed. Id. "Although not conclusive," we stated, "the legislature's action in rejecting the proposed change is indicative of an intention [on the part of the Legislature] to retain the contributory negligence doctrine." Id.

Our statements in Harrison did not circumscribe, however, our authority to alter judicially-created common law rules in the face of repeated legislative inaction on the subject. Although we have declined frequently to effect changes in decisional doctrine upon observing repeated legislative inaction, see, e.g., Potomac Valley Orthopaedic Assocs. v. Md. State Bd. of Physicians, 417 Md. 622, 639-40, 12 A.3d 84, 94 (2011) ("Our conclusion is confirmed by the fact that, in 2007, 2008, 2009, and 2010, the General Assembly `rejected efforts to achieve legislatively that which we [are being] asked to grant judicially.'" (alterations in original) (citation omitted)); Moore v. State, 388 Md. 623, 641, 882 A.2d 256, 257 (2005) ("Legislative inaction is very significant where bills have repeatedly been introduced in the General Assembly to accomplish a particular result, and where the General Assembly has persistently refused to enact such bills."), we determined, on multiple occasions, that legislative inaction may not be a sufficient premise from which to draw a positive legislative intent in certain situations. See, e.g., City of Balt. Dev. Corp. v. Carmel Realty Assocs., 395 Md. 299, 329, 910 A.2d 406, 424 (2006) (cautioning against drawing a positive inference from legislative inaction because "the General Assembly may well have... decided not to enact the amendment for a myriad of other reasons"); Goldstein v. State, 339 Md. 563, 570, 664 A.2d 375, 378 (1995) ("[T]he mere fact that the General Assembly has declined to adopt a particular proposal does not preclude this Court from incorporating the substance of that proposal into the common law...."); Automobile Trade Assoc. of Md., Inc. v. Ins. Comm'r, 292 Md. 15, 24, 437 A.2d 199, 203 (1981) ("[T]he fact that a bill on a specific subject fails of passage in the General Assembly is a rather weak reed upon which to lean in ascertaining legislative intent."); Cicoria v. State, 89 Md.App. 403, 428 n. 9, 598 A.2d 771, 775 n. 9 (1991) (noting that "[t]rying to determine what the legislature intended (or did not intend) by rejecting those bills is no easy assignment" and declining to draw either a positive or negative inference from the rejected bills).

Although the Harrison court opted to defer to the Legislature, the opinion in that case gives no indication that such deference was unlimited. No acknowledgment was advanced that we lack the authority to alter a long-standing common law rule where the Legislature declines to enact proposed legislation. Rather, we expressed that we are "particularly reluctant" to do so, and that we give "initial deference" to the Legislature when considering a change to long-standing common law principles. Harrison, 295 Md. at 460-61, 456 A.2d at 903-04 (emphasis added). Further, we did not characterize the inaction of the General Assembly as a conclusive, definitive declaration of public policy 1172*1172 —to the contrary, we specifically stated that legislative inaction is "not conclusive" and merely "indicative of an intention to retain the doctrine of contributory negligence." Id. at 461, 456 A.2d at 904.

I acknowledge, of course, that legislative consideration of comparative negligence did not cease with our decision in Harrison. The General Assembly considered numerous comparative negligence bills since Harrison, but has not to this date reached an agreement that comparative negligence should become the law of this State by legislative act.^[16] The pace of consideration of comparative negligence bills slowed dramatically in recent years, however. Since 2003, the General Assembly considered the adoption of comparative negligence only once, see H.B. 110, 2007 Leg., 423d Sess. (Md. 2007), crossfiled with S.B. 267, 2007 Leg., 423d Sess. (Md. 2007), whereas in the ten years preceding Harrison (1974-83), the Legislature considered ten independent bills. See H.B. 1007, 1982 Leg., 388th Sess. (Md. 1982); H.B. 633, 1981 Leg., 387th Sess. (Md. 1981); H.B. 98, 1980 Leg., 386th Sess. (Md. 1980); H.B. 1484, 1980 Leg., 386th Sess. (Md. 1980); H.B. 1381, 1979 Leg., 385th Sess. (Md. 1979); H.B. 1386, 1979 Leg., 385th Sess. (Md. 1979); H.B. 2004, 1977 Leg., 383d Sess. (Md. 1977); H.B. 377, 1976 Leg., 382d Sess. (Md. 1976); S.B. 106, 1976 Leg., 382d Sess. (Md. 1976); H.B. 405, 1975 Leg., 380th Sess. (Md. 1975). No favorable committee action has been taken on a comparative negligence bill since 1988. See Department of Legislative Services, Negligence Systems: Contributory Negligence, Comparative Fault, and Joint and Several Liability 31 (2004) (hereinafter "Negligence Systems").

Declining to perpetuate unmindful deference to the Legislature on such a topic would not be without precedent. For example, as noted above, this Court stated repeatedly its intention to defer to legislative action on the topic of interspousal immunity before acting. See Stokes, 248 Md. at 692, 237 A.2d at 763; Ennis, 222 Md. at 543, 161 A.2d at 702; Fernandez, 214 Md. at 524, 135 A.2d at 889. Decades later, after noting the Legislature's continued stasis on the subject, we rescinded our deference and modernized an outdated common law rule. See Bozman, 376 Md. 461, 830 A.2d 450; Boblitz, 296 Md. 242, 462 A.2d 506.

Other states, too, abrogated judicially the doctrine of contributory negligence in spite of legislative inaction on proposed bills of like objective.^[17] For example, during 1173*1173 the approximately fifteen years prior to the Kentucky Supreme Court's abrogation of contributory negligence in 1984, the Kentucky Legislature considered a comparative negligence bill "in most, if not all" legislative sessions. Hilen, 673 S.W.2d at 717. Yet, despite legislative consideration of (and inaction on) the issue, the Kentucky Supreme Court abrogated the doctrine, noting its systematic rejection, "first legislatively, and then judicially where the legislature has refused to act." Id. at 716-17. Similarly, the Missouri Supreme Court deferred repeatedly to legislative 1174*1174 consideration and an opportunity to act for over five years, noting that ordinarily the policy considerations implicit in making such a doctrinal change were more appropriate for the legislature, particularly in light of increased legislative interest in the topic. See Steinman v. Strobel, 589 S.W.2d 293, 294 (Mo.1979); Epple v. Western Auto Supply Co., 557 S.W.2d 253, 254 (Mo. 1977). Indeed, even after applying a nudge to the legislature by abandoning "active-passive negligence" in favor of comparative fault principles in cases involving multiple defendants, see Missouri Pac. R.R. Co. v. Whitehead & Kales Co., 566 S.W.2d 466 (Mo.1978), the Missouri Supreme Court continued to express its preference for legislative action. Steinman, 589 S.W.2d at 294. By 1983, however, shortly after our decision in Harrison, the Missouri Supreme Court decided it had waited long enough and abrogated contributory negligence generally by judicial decision, stating, "We have remained quiescent more than five years while waiting for the legislature to act." Gustafson v. Benda, 661 S.W.2d 11, 15 (Mo.1983).

The New Mexico Supreme Court asserted that its legislature's inaction on proposed bills could be "indicative of its belief that it is more appropriate for the judiciary than the legislature to open the door which the judiciary initially closed." Scott, 634 P.2d at 1238-39. It characterized further legislative inaction as resulting from "legislative inertia," rather than from a principled policy decision. Id. The Illinois Supreme Court also noted that a stalemate caused by a "mutual state of inaction in which the court awaits action from the legislature and the legislature awaits guidance from the court" constitutes a "manifest injustice to the public." Alvis, 421 N.E.2d at 896. In such a situation, the court said, "it is the imperative duty of the court to repair that injustice and reform the law to be responsive to the demands of society." Id. Consequently, we should put an end to the staring contest in Maryland and act to conclude the Alphonse & Gaston routine that has settled in between our two branches of government.

Respondent also contends that, the abstract principle of deference to legislative inaction notwithstanding, replacing the doctrine of contributory negligence is a task more appropriate for legislative action because that potential deliberative and comprehensive decision-making process is suited better to resolution of the complex policy considerations involved in adopting comparative fault and its collateral impacts. The Harrison court expressed a particular reluctance to abrogate contributory negligence due to the nature of comparative negligence as not being "a unitary doctrine[,] but one which has been adopted by other states in either a pure or modified form." 295 Md. at 462, 456 A.2d at 904. Characterizing the choice between pure and modified comparative fault as "a policy issue of major dimension," this Court opted in 1983 to leave the choice to the General Assembly. Id. at 463, 456 A.2d at 905. Respondent contends that, because this decision implicates policy considerations and this Court is limited in its consideration of the impact on collateral doctrines and principles by the facts of this case,^[18] we should continue to refrain from adopting comparative negligence and disrupting long-settled law to avoid confusion and disarray in our courts. Moreover, Respondent and its Amici argue that abolishing the doctrine of contributory negligence is bad public policy. They contend 1175*1175 that in so doing, we would inject chaos and uncertainty into an area of settled law, and increase litigation, insurance rates, and taxes.^[19]

Although the transition from contributory to comparative negligence systems is plainly "a policy issue of major dimension," I do not think that it is an issue on which awaiting legislative catharsis is appropriate any longer. Contributory negligence is a spawn of the court system—and as such, this Court is eminently able and uniquely situated to stay the course. Moreover, as the South Carolina Court of Appeals noted, the potential for a legislative body to affect comprehensively a doctrinal substitution has not proven out uniformly in execution. Langley v. Boyter, 284 S.C. 162, 325 S.E.2d 550, 560 (App. 1984), quashed, 286 S.C. 85, 332 S.E.2d 100 (1984), cited with approval, Nelson v. Concrete Supply Co., 303 S.C. 243, 399 S.E.2d 783, 784 (1991) ("[T]he history of legislative action in the various states which have adopted the doctrine [of comparative negligence] by statute reveals that comprehensive statutes are not usually adopted."). Rather, most states adopting comparative negligence via legislative act have enacted short-form statutes that leave most doctrinal issues to be shaped and developed by the courts. Id.

Additionally, deferring this issue to a future court or legislative session on grounds that the present case offers insufficient facts to reach binding declarations regarding all collateral doctrines and principles does not weigh so heavily as this Court's responsibility to administer justice. As this argument goes, "in essence, ... where a court cannot correct all injustice, it should correct none." Id. I am not persuaded that making the change by judicial decision, necessarily leaving some further development of the doctrine of comparative negligence to another day, will wreak havoc on our system of justice or the State's economy. To the contrary, the experiences of other states, having made an analogous change, "provide an accurate barometer of what can be expected after abrogation." Bozman, 376 Md. at 496, 830 A.2d at 471. In the twelve other states to abrogate by judicial decision the doctrine of contributory negligence, there is scant evidence that the judicial system was thrown into unmanageable disarray. In fact, other courts noted that "the fears of administering the doctrine are greater than the reality," and that the difficulties presumed inherent in the adoption of comparative negligence "are outweighed by the injustices attendant upon any delay in adopting the comparative negligence (fault) rule." Scott, 634 P.2d at 1239, 1241.

1176*1176 I recognize that a shift to comparative fault implicates numerous collateral doctrines. I expect fully that questions will arise about the application of comparative fault in practice in the State of Maryland that cannot be answered conclusively in the present case. This Court would be well-served, however, to place trust in the full array of the Judiciary of this State to administer faithfully the principles of comparative negligence in accordance with this Court's direction. Thus, I reject Respondent's contention that this matter is best left to a legislative enactment that might address all potential applications of the doctrine of comparative negligence in a single coup, rather than trusting to the incremental decisions that follow in the common law tradition, beginning with a seminal action by this Court.

III. This Court Should Adopt Pure Comparative Fault

Having concluded, as I have, that the doctrine of contributory negligence must fall, the question becomes: what form of comparative negligence should be adopted? Although the precise formulations of comparative fault systems may vary, there are essentially two basic forms: pure and modified.

Under a system of pure comparative fault, damages are apportioned among the parties according to the fact finder's determination of the percentage that each party's negligence contributed to the injury. Cooter & Ulen, supra, at 1076. A plaintiff is permitted to recover from the defendant (or defendants) the portion of his or her damages which the defendant (or defendants) caused—regardless of the quantum of the plaintiff's contributory negligence. 4 Harper, James & Gray, supra, § 22.15 at 458. Thus, even if the plaintiff's degree of fault exceeds that of the defendant (or defendants), the plaintiff may recover damages reduced by the proportion that the plaintiff is at fault. See id.; Digges & Klein, supra, at 280.

Modified comparative fault, by contrast, considers relevant the proportion of the plaintiff's relative fault in varying degrees, depending on the standard adopted. Under such systems, a plaintiff "escapes the contributory negligence bar only if his share of the responsibility falls within a specified limitation." 4 Harper, James & Gray, supra, § 22.15 at 458. States that adopt a modified system generally choose one of two forms, allowing recovery of damages by a plaintiff reduced by the percentage of his or her own fault if either (1) the plaintiff's relative fault is less than the combined fault of all of the defendants;^[20] or (2) the plaintiff's relative fault is not greater than the combined fault of all of the defendants.^[21],^[22]

1177*1177 This Court should adopt for Maryland pure comparative negligence. Pure comparative negligence is favored almost universally by legal scholars and academics. It is "the fairest, most logical and simplest to administer of all available systems." Goetzman, 327 N.W.2d at 754. Because pure comparative negligence emphasizes the relationship of an individual's fault to the ultimate damages, "[n]either party is unjustly enriched[, and] [n]either party escapes liability resulting from his negligent acts or omissions." Alvis, 421 N.E.2d at 897. The shades of gray in jury determinations^[23] assigning proportions of fault is not, in a pure system, the difference between substantial recovery and no recovery at all. See Prosser, Comparative Negligence, supra, at 493-94 ("It is obvious that a slight difference in the proportionate fault [under a modified system] may permit a recovery; and there has been much quite justified criticism of a rule under which a plaintiff who is charged with 49 per cent of the total negligence recovers 51 percent of his damages, while one who is charged with 50 per cent recovers nothing at all."). Critics of pure comparative negligence call it a "radical break" from the principles of contributory negligence, and view a modified version instead as a logical evolution away from contributory negligence. See Bradley v. Appalachian Power Co., 163 W.Va. 332, 256 S.E.2d 879, 885 (1979) (noting an unwillingness "to abandon the concept that where a party substantially contributes to his own damages, he should not be permitted to recover for any part of them"). Pure comparative negligence, however, more closely hews to the principle on which comparative fault systems are based—that liability should be commensurate with fault, and that individuals are responsible to the extent that their fault results in injury. See Goetzman, 327 N.W.2d at 753-54; Lande & MacAlister, supra, at 9 ("[O]nly a `pure' system protects all the deserving injured, is fair to defendants, optimally deters negligent behavior, and fosters the greatest sense of justice, fairness, and respect for the law on the part of juries.").

1178*1178 Moreover, although pure comparative negligence is the numerically minority choice nationally,^[24] it is the preferred version among states adopting comparative negligence by judicial decision. Nine of the twelve states adopting comparative negligence judicially have chosen a pure system,^[25] while three chose a modified version.^[26] Modified systems "reintroduce in large measure the very same all-or-nothing feature of contributory negligence that the remedy of comparative negligence is designed to overcome," by establishing a new set point at which recovery for a contributorily negligent plaintiff is barred. 4 Harper, James & Gray, supra, § 22.15 at 463; see also Li, 119 Cal.Rptr. 858, 532 P.2d at 1242 (criticizing a modified system as simply shifting the "lottery aspect" of contributory negligence to a different set point); Alvis, 52 Ill.Dec. 23, 421 N.E.2d at 898 ("There is no better justification for allowing a defendant who is 49% at fault to completely escape liability than there is to allow a defendant who is 99% at fault under the old rule to escape liability."). Maryland courts should apply a system of pure comparative fault in negligence actions.

IV. Some Ruminations on the Possible Effect on Collateral Doctrines of the Adoption of Comparative Fault

Adopting a system of comparative fault will impact undoubtedly numerous collateral doctrines in the law of torts, as we recognized in Harrison. Indeed, as the Florida Supreme Court acknowledged, "the prospect of a general upheaval in pending tort litigation has always been a deterring influence in considering the adoption of a comparative negligence rule." Hoffman v. Jones, 280 So.2d 431, 439 (Fla. 1973). Although the facts of the present case and Petitioner's questions for which we issued a writ of certiorari do not permit a binding consideration of the possible effects on these collateral doctrines, it is prudent nonetheless to itemize and comment 1179*1179 on here a few, but by no means an exhaustive list, of the potential impacts of a decision to adopt comparative negligence.

Even after the abrogation of contributory negligence, the spirit of that doctrine will remain in some statutory provisions. For example, as Respondent and its Amici point out, the principles of contributory negligence are codified in various limited contexts in the Maryland Code. That remnants of a discarded common law doctrine may remain after its abolition does not provide, however, a reason to retain it in its entirety for all purposes. Cf. Bozman, 376 Md. at 488, 830 A.2d at 466 (acknowledging that despite the Court's abolition of the doctrine of interspousal immunity, remnants of the common law concept upon which the doctrine was based remain in Maryland law). We do not have the authority to overrule any principles of contributory negligence embedded currently in the statutory law of this State. See Md. Const. Decl. of Rts. art. 8. Thus, where the Legislature codified these principles as a complete bar to recovery in those limited contexts, it will continue to serve as a defense in those actions governed by the relevant statute, unless and until the General Assembly decides otherwise. See Md. Code (1977, 2009 Repl. Vol.), Transportation Article § 19-101(b) ("This State or a political subdivision of this State may use the defense of contributory negligence and assert the doctrine of last clear chance in an action brought or defense raised under this section."); Md. Code (1977, 2009 Repl. Vol.), Transportation Article § 19-102(c) ("This State or a political subdivision of this State may use the defense of contributory negligence and assert the doctrine of last clear chance in an action brought or defense raised under subsection (b) of this section."). Where the principles of contributory negligence have not been codified, however, the doctrine of pure comparative negligence, as the common law of this state, should apply henceforth.^[27]

Interestingly, concepts of contributory negligence will continue to be embedded in Maryland common law under a comparative fault system. The adoption of comparative fault abolishes the doctrine of contributory negligence as a complete bar to a plaintiff's recovery, but an individual's "contributory negligence" remains relevant as a consideration in determining his or her degree of fault in contributing to his or her injury. Thus, statutes that disallow presently certain conduct from consideration as evidence of contributory negligence may have continued applicability in a comparative fault system,^[28] while others 1180*1180 may merit consideration for revision by the General Assembly to make their continued applicability in a comparative fault system, if any, more clear. See, e.g., Md. Code (1973, 2006 Repl. Vol.), Courts & Judicial Proceedings Article, § 3-1607 ("A defendant in an action under this subtitle may not raise a defense of assumption of risk or contributory negligence based on the use of a controlled dangerous substance by the deceased individual."); Md. Code (2007, 2012 Supp.), Human Services Article, § 7-704(b)(2) ("The failure of a blind or visually impaired pedestrian to carry a cane ... does not constitute contributory negligence per se.").

Respondent and its Amici contend further that the adoption of comparative fault will have serious effects on the fiscal health of our State and local government. Because the unavailability of contributory negligence as an absolute bar to recovery will increase the number of "meritless claims presented," they argue, governments will face increased liability. The possibility that state and local governmental liability may increase following the adoption of comparative fault is by no means certain. There is no evidence, and indeed Amici provide none, that other states have experienced skyrocketing governmental liability and fiscal disaster following the adoption of comparative negligence. Moreover, the adoption of comparative fault by no means limits the reactive power of the General Assembly. To the contrary, the Legislature remains in the position to observe the actual impacts of a comparative fault system in Maryland and adopt or amend statutes accordingly, if it deems change necessary.^[29] Moreover, if, as Amici contend, the General Assembly intended the defense of contributory negligence to apply to actions brought under the Local Government Tort Claims Act ("LGTCA"), despite failing to codify expressly that defense, see Md. Code (1973, 2006 Repl. Vol.), Courts & Judicial Proceedings Article, § 5-303, the Legislature has the authority to amend explicitly the LGTCA to so provide.

Respondent and its Amici express particular concern over the continued vitality of the principles of joint and several liability, and the attendant issue of contribution among joint tortfeasors, in a comparative fault system. I recognize that, following the adoption of a comparative fault system, the continued vitality and fairness of the doctrine of joint and several liability merits specific attention. Indeed, most states adopting comparative negligence have revisited this issue, see, e.g., McIntyre, 833 S.W.2d at 58 ("Having thus adopted a rule more closely linking liability and fault, it would be inconsistent to simultaneously retain a rule, joint and several liability, which may fortuitously impose a degree of liability that is out of all proportion to fault."), although little consensus among states resulted.^[30] Because joint and several 1181*1181 liability is not implicated by the facts of the present case, however, we reserve the evaluation and determination of whether a departure from common law joint and several liability is warranted, and, if so, in what circumstances.

We also recognize that, regardless of the impact of a reconsideration of the applicability of joint and several liability, there may exist at least a theoretical inconsistency between the Uniform Contribution Among Tortfeasors Act ("UCATA") as codified at Md. Code (1973, 2012 Supp.), Courts & Judicial Proceedings Article, §§ 3-1401-09, and a system of comparative negligence. While the touchstone of a system of comparative negligence is the imposition of liability in direct proportion to one's fault, the current provisions of the UCATA permit one joint tortfeasor to obtain contribution from another joint tortfeasor if he, she, or it has paid more than his, her, or its "pro rata share." Id. at § 3-1402. A pro rata share is understood generally, however, as an equal share of the common liability, rather than a share based on an individual's proportion of fault, and thus may be inconsistent with the foundations of comparative negligence.^[31] See Hashmi v. Bennett, 416 Md. 707, 719 n. 13, 7 A.3d 1059, 1066 n. 13 (2010) (quoting Lahocki v. Contee Sand & Gravel Co., 41 Md.App. 579, 616, 398 A.2d 490, 511 (1979), rev'd on other grounds sub nom, General Motors Corp. v. Lahocki, 286 Md. 714, 410 A.2d 1039 (1980)). Abiding future legislative action and/or appellate opinions, however, contribution among joint tortfeasors should continue to apply in pro rata shares.

Another potential issue for future resolution is the determination of which parties should be included in the pool of fault— specifically, how uncharged parties and released tortfeasors are treated under a comparative fault scheme in apportioning fault. The UATRA, for example, compares fault only among those individuals or entities that are actual parties to the litigation, 1182*1182 but does not preclude any defendant from pursuing a nonparty. It contains an exception, however, for released tortfeasors, requiring that the responsibility of released tortfeasors be considered in apportioning fault among non-released parties. States are split on this approach— some follow the UATRA; others that initially adopted the UATRA approach amended their laws later to require apportionment of fault to nonparties; and, still others permit, but do not require, the consideration of nonparties in apportioning fault. See Rules Committee Report, supra, at 19-20.

Although I would decide today to apply a system of pure comparative fault only to negligence actions, other states adopting systems of comparative fault have confronted the breadth with which a system of comparative fault should be applied—in particular, whether to expand the reach of comparative fault to strict liability and intentional torts. The defense of contributory negligence long has been held inapplicable to actions based on strict liability, see Ellsworth v. Sherne Lingerie, Inc., 303 Md. 581, 597, 495 A.2d 348, 356 (1985), and intentional torts. See Tucker v. State, Use of Johnson, 89 Md. 471, 486, 43 A. 778, 783 (1899); State Farm v. Hill, 139 Md.App. 308, 316-18, 775 A.2d 476, 481-82 (2001). Approximately thirty-five states have opted to apply the doctrine of comparative fault to strict liability cases, in additional to negligence actions, although ten do not. See Negligence Systems, supra, at Appendix A, 37-41. Although many states do not endorse the application of comparative fault to intentional torts, see, e.g., Florenzano v. Olson, 387 N.W.2d 168, 176 n. 7 (Minn.1986) ("We ... consider it bad policy to permit an intentional tortfeasor the defense of comparative negligence merely because he or she chooses a gullible or foolish victim."); Davies v. Butler, 95 Nev. 763, 602 P.2d 605, 611 (1979) (declining to apply comparative fault to intentional acts), some do. See, e.g., Alaska Stat. § 09.17.900 (2012) (including intentional conduct in the definition of fault); Blazovic v. Andrich, 124 N.J. 90, 590 A.2d 222, 231 (1991) ("We are unpersuaded by the decisions of other jurisdictions that reject apportionment of fault in actions involving intentional tortfeasors."). Consideration of the expansion of comparative fault beyond negligence actions is a bridge too far at this time.

Additionally, this Court should consider eventually (in the proper case) the continued vitality of the ameliorative doctrine of last clear chance. Most states that abrogate contributory negligence by judicial decision abolished contemporaneously the doctrine of last clear chance. See, e.g., Kaatz, 540 P.2d at 1050; Hoffman, 280 So.2d at 438; Alvis, 52 Ill.Dec. 23, 421 N.E.2d at 898. Because the doctrine of last clear chance is designed to mitigate the harsh results of contributory negligence, it seems likely that it may not survive the abrogation of contributory negligence. The facts giving rise to a traditional application of the doctrine may be relevant, however, in apportioning fault.

As we recognized in Harrison, the handling of set-offs and counterclaims are implicated by a decision to adopt comparative fault. Although Maryland has only a permissive, not compulsory, counterclaim rule, see Md. Rule 2-331; Fairfax Savings, F.S.B. v. Kris Jen Ltd. P'ship, 338 Md. 1, 11-12, 655 A.2d 1265, 1270 (1995), defendants in negligence actions will be able increasingly to raise counterclaims for damages arising from the same injury under a comparative fault rule. Thus, in a comparative negligence scheme, it may be the case that the plaintiff or counter-defendant owes the defendant or counter-plaintiff damages, and vice versa, raising the prospect of set-offs. In Hoffman, the 1183*1183 Florida Supreme Court stated broadly that, in the case of a counterclaim, courts should "enter one judgment in favor of the party receiving the larger verdict, the amount of which should be the difference between the two verdicts." 280 So.2d at 439. As the Florida court later recognized (and disavowed) in Stuyvesant Ins. Co. v. Bournazian, 342 So.2d 471 (Fla.1976), however, a technical application of the Hoffman language resulted in a windfall to insurance liability carriers, as they would be responsible only for the set-off amount, and not the full damages incurred by the insured. Id. at 473-74. Thus, Florida applies set-offs in negligence actions only in instances where both parties are uninsured. Id. at 474. By contrast, some comparative negligence states ban set-offs altogether, see, e.g., R.I. Gen. Laws § 9-20-4.1 (2011), which may result in practical difficulties where only one party is uninsured. See John M. Rogers & Randy Donald Shaw, A Comparative Negligence Checklist to Avoid Future Unnecessary Litigation, 72 Kentucky L.J. 25, 73-79 (1983). Although we cannot decide definitively today how set-offs will operate in a comparative fault system, as appropriate cases work their way to us, lower courts should consider the just compensation of the parties in determining whether set-offs should apply.

I acknowledge that adopting a system of pure comparative fault implicates numerous related doctrines and principles in the law of torts, and a decision to do so is not taken lightly. That many questions will result from such a shift is not, however, a justification for retaining the status quo of contributory negligence. I have confidence that our judicial system will not be thrown into disarray, as Respondent and its Amici contend, based on the experience of, at a minimum, the twelve states that adopted judicially comparative negligence. The collateral issues will be handled readily by our Legislature and/or State's judges until this Court is presented the opportunity to resolve each lingering question.

V. Implementation of Pure Comparative Fault Should Apply Prospectively

The final decision to undertake in the present case, as I see it, is whether the decision adopting the doctrine of comparative negligence should be applied prospectively or retrospectively (to some extent). I would apply the doctrine of selective prospectivity, which is the "method by which `a court may apply a new rule in the case in which it is pronounced, then return to the old one with respect to all others arising on facts predating the pronouncement.'" Polakoff v. Turner, 385 Md. 467, 486, 869 A.2d 837, 849 (2005)(quoting James B. Beam Distilling Co. v. Georgia, 501 U.S. 529, 537, 111 S.Ct. 2439, 115 L.Ed.2d 481 (1991)(plurality opinion)).

Selective prospectivity applies generally in cases where we announce a change in the substantive common law, Polakoff, 385 Md. at 488 n. 14, 869 A.2d at 850 n. 14, rather than in cases changing procedural requirements in the trial courts, Owens-Illinois, Inc. v. Zenobia, 325 Md. 420, 470, 601 A.2d 633, 657-58 (1992), or overruling prior cases based on their erroneous interpretation of the law. See Polakoff, 385 Md. at 488, 869 A.2d at 850 (noting that a new interpretation of a statute will apply to "the case before the court and to all cases pending where the issue has been preserved for appellate review"); Houghton v. Cnty. Comm'rs of Kent Cnty., 307 Md. 216, 220, 513 A.2d 291, 293 (1986) ("[T]he question of whether a particular judicial decision should be applied prospectively or retroactively, depends in the first instance on whether or not the decision overrules prior law and declares a new principle of law."). In adopting comparative fault, this Court would "exercise[][its] 1184*1184 constitutional authority to change the common law." See Zenobia, 325 Md. at 469, 601 A.2d at 657. See, e.g., Tracey, 427 Md. at 639-42, 50 A.3d at 1081-83; Julian, 320 Md. at 9-11, 575 A.2d at 739; Kelley v. R.G. Industries, Inc., 304 Md. 124, 140, 497 A.2d 1143, 1150-51 (1985); Boblitz, 296 Md. at 273-75, 462 A.2d at 521-22. Unlike in Zenobia, where we adopted a standard of clear and convincing evidence to justify punitive damages in tort cases, 325 Md. at 469, 601 A.2d at 657, the doctrine of comparative fault is not a procedural rule. See Erie Ins. Exchange v. Heffernan, 399 Md. 598, 635, 925 A.2d 636, 658 (2007) (noting that the doctrine of contributory negligence relates to substantive tort law). Thus, because "[o]rdinarily decisions which change the common law apply prospectively, as well as to the litigants before the court,"^[32] Julian, 320 Md. at 10, 575 A.2d at 739 (citing Williams v. State, 292 Md. 201, 217, 438 A.2d 1301, 1309 (1981)), I would apply the doctrine of comparative negligence to all causes of action accruing subsequent to the filing of this opinion, and to the parties in the present case on remand. See Boblitz, 296 Md. at 275, 462 A.2d at 522.

Finally, I would dismiss the writ of certiorari issued in response to the cross-petition filed by the Soccer Association of Columbia, for the same reasons stated for a similar result in the Majority opinion. See Maj. op. at 685 n. 3, 69 A.3d at 1152 n. 3.

C.J. Bell has authorized me to state he joins in this opinion.

GREENE, J., concurring, which BATTAGLIA, McDONALD and RAKER, JJ., join.

I join the majority opinion in rejecting Petitioner's invitation to change Maryland common law and abrogate the doctrine of contributory negligence. I write separately to explain why I believe, in addition to the reasons advanced in the majority opinion, we should defer to the General Assembly with regard to what would amount to a comprehensive revision of the law in this State. Notably, there is no dispute about whether this Court has the authority to change the common law. Just because we have that power, however, is no good reason to change the law in the face of clear policy reasons, based upon our jurisprudence, directing that we exercise restraint.

We pointed out in Harrison v. Montgomery Cnty. Bd. of Educ., 295 Md. 442, 463, 456 A.2d 894, 905 (1983), that "the contributory negligence principle [is] the valid standard in Maryland negligence cases and that `any change in the established doctrine [was for] the Legislature.'" Majority Opinion, at 685, 69 A.3d at 1152. In support of this conclusion, we acknowledged that the determination of public policy 1185*1185 is generally a legislative prerogative. See Harrison, 295 Md. at 460, 456 A.2d at 903 ("[The] declaration of the public policy of Maryland is normally the function of the General Assembly[.]"). This Court has stated that "[we are] reluctant to alter a common law rule in the face of indications that to do so would be contrary to the public policy of this State." Harrison, 295 Md. at 460, 456 A.2d at 903 (citing Condore v. Prince George's Cnty., 289 Md. 516, 532, 425 A.2d 1011, 1019 (1981)). In my view, this is sound public policy, especially in light of the long-standing adherence in this State to the rule of contributory negligence. Therefore, we should defer to the General Assembly under the circumstances of this case. To do otherwise, we cast ourselves as a Court attempting to impose our will upon the General Assembly.

In Maryland, we operate under a fault-based tort system. Fault also is the test for liability under contributory negligence and comparative negligence. In any given case, the negligence of a plaintiff may play a part in causing his or her injuries and the damages he or she is allowed to recover should, therefore, be diminished to some extent. Of course, contributory negligence completely bars recovery, while comparative negligence prevents the plaintiff from recovering only that portion of his damages for which he is responsible. I am willing to concede that a system premised on comparative negligence for apportioning fault appears to be "a more equitable system of determining liability and a more socially desirable method of loss distribution." See Hoffman v. Jones, 280 So.2d 431, 437 (Fla.1973). Thus, under comparative negligence, losses are apportioned among those whose fault contributed to the occurrence. Hence, if we were writing on a clean slate, I might be persuaded to adopt the comparative negligence standard.

Because I would prefer a system of comparative negligence is neither the test nor the justification for abandoning contributory negligence and adopting comparative negligence in its place. In this case our duty is to construe or interpret the law. It is not our task to invade the province of the General Assembly and enact into law a sweeping revision of an established rule of law. Here the dissenting opinion advocates for a system of pure comparative negligence. Some might, however, prefer a system of modified comparative negligence because of a belief that a plaintiff who was more than 50% at fault should not be entitled to any recovery. Whether Maryland becomes a pure comparative negligence state or a modified comparative negligence state should not be decided by this Court on the basis of the record before us. The General Assembly, in my view, is best suited to make that determination given the current status of our laws and its ability to conduct a comprehensive study of how the changes in the law will affect tort liability and insurance law in Maryland. In addition, as the dissenting opinion concedes, any change of the common law would not affect those statutes in Maryland that have enacted the concept of contributory negligence as a matter of law in some situations. See Dissenting Opinion, at 729-31, 69 A.3d at 1179-80.

Lastly, the General Assembly seems to be in the better position to study and resolve:

1. How comparative negligence will apply in cases of multi-tortfeasors?

2. What will be the impact on the doctrine of joint and several liability if comparative negligence becomes the law?

3. How or should the Uniform Contribution Among Tort-Feasors Act retain any viability?

1186*1186 4. If the last clear chance doctrine is abolished as a result of comparative negligence, should or would the doctrine of assumption of the risk also be abolished?

5. Should Maryland adopt pure comparative negligence or a modified version?

See McIntyre v. Balentine, 833 S.W.2d 52, 57-58 (Tenn.1992). To be certain, the General Assembly is at liberty to consider the opinions of this Court and decide whether to conduct such studies. In my view, the General Assembly may be poised to engage in such a discussion in light of the differing views expressed in this opinion. We would be wise, however, to encourage the General Assembly to do so, rather than to attempt to force it to do so by adopting the doctrine of pure comparative negligence.

I am authorized to state that Judges Battaglia, McDonald and Raker join in the views expressed in this concurring opinion.

[*] Bell, C.J., participated in the hearing of this case, in the conference in regard to its decision and in the adoption of the opinion, but he had retired from the Court prior to the filing of the opinion.

[1] In his first amended complaint, Coleman named four defendants: the Soccer Association of Columbia, the Columbia Soccer Club, the Howard County Government, and the Howard County Board of Education. On August 16, 2010, Coleman filed a notice of voluntary dismissal as to the Howard County Government. Subsequently, on October 5, 2011, the parties stipulated to dismissal with prejudice of the Columbia Soccer Club. On October 24, 2011, the Howard County Board of Education was also dismissed with prejudice from the suit, leaving the Soccer Association of Columbia as the sole remaining defendant during the trial.

[2] The proffered jury instruction read as follows:

"A. Comparative Negligence—Liability

"If you find that more than one party has established his/her burden of proof as to negligence, as defined by the court, you must then compare the negligence of those parties. The total amount of negligence is 100%. The figure that you arrive at should reflect the total percentage of negligence attributed to each party with respect to the happening of the accident. A comparison of negligence is made only if the negligence of more than one party proximately caused the accident."

[3] The Soccer Association's cross-appeal was unnecessary, and actually improper, because of the principle that a litigant is not entitled to appeal from a judgment wholly in his or her favor. Any arguments seeking to uphold the judgment on grounds rejected by the trial judge or jury, such as the alleged lack of primary negligence, can be made by the appellee under the principle that a judgment can be upheld on any ground adequately shown by the record. See, e.g., Unger v. State, 427 Md. 383, 400-401 n. 8, 48 A.3d 242, 252 n. 8 (2012); Rush v. State, 403 Md. 68, 103, 939 A.2d 689, 709 (2008); Bowen v. Annapolis, 402 Md. 587, 618, 937 A.2d 242, 260 (2007); Wolfe v. Anne Arundel County, 374 Md. 20, 25 n. 2, 821 A.2d 52, 55 n. 2 (2003).

[4] Some commentators have claimed that the doctrine of contributory negligence originated even earlier, with the case of Bayly v. Merrel, 79 Eng. Rep. 331 (K.B. 1606). Most authorities, however, take the position that the doctrine originated with Butterfield v. Forrester, 11 East 60, 103 Eng. Rep. 926 (K.B. 1809). See, e.g., William L. Prosser, Comparative Negligence, 41 Cal. L.Rev. 1, 3 (1953); Wex S. Malone, The Formative Era of Contributory Negligence, 41 Ill. L.Rev. 151 (1946).

[5] One commentator has written as follows (H. Woods, The Negligence Case: Comparative Fault, § 1:4, at 7-8 (1978), footnotes omitted):

"By 1850, [the country] had become heavily industrialized. This unprecedented development of industry and the general realization that it was related to Britain's continuance as the dominant world power brought out the protective instincts of her judiciary. The English courts eagerly seized upon Lord Ellenborough's holding in Butterfield as a most effective protective device. The American judiciary was no less enthusiastic. A Pennsylvania court in 1854 said this had been the `rule from time immemorial and is not likely to be changed in all the time to come.'"

See also Alvis v. Ribar, 85 Ill.2d 1, 6, 52 Ill.Dec. 23, 421 N.E.2d 886, 888 (1981):

"Judicial concern was particularly evident in the area of personal injury suits by railroad employees against the railroads. The courts realized that, in the pervading public view that saw railroads as `harmful entities with deep pockets'..., juries' sympathies toward plaintiffs could wreak financial disaster upon that burgeoning industry."

In 1906, Congress enacted the Federal Employers' Liability Act ("FELA"), 45 U.S.C. §§ 51-60, which applied a comparative negligence standard in cases brought by railroad workers against their employers. The statute states that the "liability of common carriers by railroad," is that "[e]very common carrier by railroad ... shall be liable in damages to any person suffering injury while he is employed by such carrier...." 45 U.S.C. § 51. The FELA specifies that "contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee." 45 U.S.C. § 53. See Collins v. National R.R. Passenger Corp., 417 Md. 217, 9 A.3d 56 (2010).

[6] See, e.g., House Bill 836 of the 1996 session (withdrawn); House Bill 846 of the 1997 session (unfavorable report of the House Judiciary Committee); Senate Bill 618 of the 1998 Session (unfavorable report of the Senate Judicial Proceedings Committee); House Bill 551 of the 1999 Session (unfavorable report of the House Judiciary Committee); Senate Bill 779 of the 2000 Session (unfavorable report of the Senate Judicial Proceedings Committee); Senate Bill 483 of the 2001 Session (unfavorable report of the Senate Judicial Proceedings Committee); Senate Bill 872 of the 2002 Session (sent to Senate Rules Committee but no further progress); House Bill 110 of the 2007 Session (withdrawn); Senate Bill 267 of the 2007 Session; House Bill 1129 of the 2011 Session.

[1] The Court in Irwin stated, in Maryland's seminal invocation of contributory negligence, that it is

established doctrine ... that although the defendant's misconduct may have been the primary cause of the injury complained of,... the plaintiff cannot recover in a[ negligence action] if the proximate and immediate cause of the damage can be traced to a want of ordinary care and caution on his part. Under such circumstances, he must bear the consequences of his own recklessness or folly.

6 Gill at 205.

[2] As this Court acknowledged in Harrison, the creation of the doctrine of last clear change is attributed generally to an attempt to alleviate the harsh results of the doctrine of contributory negligence. 295 Md. at 450, 456 A.2d at 898. Despite general scholarly agreement with this principle, see, e.g., Digges & Klein, supra, at 276; Prosser & Keeton, supra, at 464 ("The real explanation [for the doctrine of last clear chance] would seem to be a fundamental dislike for the harshness of the contributory negligence defense."), the Harrison court stated that "[n]othing in [the adopting case] lends any direct support to this hypothesis." 295 Md. at 450-51, 456 A.2d at 898.

[3] Comparative negligence (in one form or another) is applied in the United States overwhelmingly, with forty-six states abandoning contributory negligence in favor of comparative fault. Only four states—Alabama, Maryland, North Carolina, and Virginia—and the District of Columbia continue to apply contributory negligence in its traditional guise. 2 Dobbs, supra, § 220 at 771-72.

[4] Comparative fault comes in two main forms: pure and modified. Under a pure comparative fault system, a contributorily negligent claimant's damages will be reduced based purely on his or her degree of fault (expressed as relative percentages of 100%), regardless of whether the claimant is as much or more at fault than the defendant. 4 Harper, James & Gray, supra, § 22.15 at 458; Prosser & Keeton, supra, § 67 at 471-72. A modified comparative fault system, by contrast, prohibits a claimant from recovering any damages if his or her relative degree of fault exceeds a certain threshold. 4 Harper, James & Gray, supra, § 22.15 at 458; Prosser & Keeton, supra, § 67 at 473. I will discuss infra in more detail the various forms of comparative fault.

[5] At the time of our decision in Harrison, thirty-nine states had adopted some form of comparative fault in favor of contributory negligence. 295 Md. at 453, 456 A.2d at 899. Of these states, eight adopted comparative negligence judicially, while thirty-one did so legislatively. Id. As of the date of our decision in the present case, twelve of the forty-six states adopting comparative negligence did so initially by judicial decision.

[6] Respondent's Amici include the Local Government Insurance Trust, the Maryland Association of Counties, the Maryland Municipal League, and the Mayor and City Council of Baltimore; the American Tort Reform Association, the Chamber of Commerce for the United States of America, the Coalition for Litigation Justice, Inc., the American Insurance Association, the Property Casualty Insurers Association of America, the National Association of Mutual Insurance Companies, the Physician Insurers Association of America, the American Medical Association, and the NFIB Small Business Legal Center; the Law Offices of Peter G. Angelos, P.C.; Maryland Defense Counsel, Inc.; and the Maryland Chamber of Commerce and the Maryland Tort Reform Coalition.

[7] Striking a similar theme, Judge Eldridge expressed in his dissent in Legislative Redistricting Cases, "[t]he perceived difficulty of the task should not excuse its performance." 331 Md. 574, 635, 629 A.2d 646, 677 (1993) (Eldridge, J., dissenting).

[8] Boblitz was preceded by Lusby v. Lusby, which held that the doctrine of interspousal tort immunity was inapplicable in cases of intentional torts. 283 Md. 334, 358, 390 A.2d 77, 89 (1978). The Lusby court emphasized, however, that we had not ruled explicitly that the immunity doctrine did apply in fact to intentional tort cases, and thus justified its limitation of the doctrine on the lack of direct precedent. Id. at 357-58, 390 A.2d at 88-89. In considering the issue, the Court noted that many states had altered the common law rule, and commentators had been nearly unanimous in their critique of that rule. Id. at 346, 350, 390 A.2d at 83-84.

[9] As the dissent noted, we entreated in prior cases the General Assembly to enact legislation to abrogate the doctrine, and kow-towed repeatedly to the Legislature. Id. at 283, 462 A.2d at 525 (Couch, J., dissenting).

[10] Although twelve states have abrogated contributory negligence by judicial decision, the prospect of judicial abrogation has been considered and rejected in numerous states. These states generally have not based their decisions on the intrinsic value of the rule of contributory negligence, but instead opted to defer to legislative action. See, e.g., Golden v. McCurry, 392 So.2d 815 (Ala. 1980); McGraw v. Corrin, 303 A.2d 641 (Del.1973); Maki v. Frelk, 40 Ill.2d 193, 239 N.E.2d 445 (1968); Epple v. Western Auto Supply Co., 557 S.W.2d 253 (Mo. 1977); Codling v. Paglia, 32 N.Y.2d 330, 345 N.Y.S.2d 461, 298 N.E.2d 622 (1973); Krise v. Gillund, 184 N.W.2d 405 (N.D.1971); Peterson v. Culp, 255 Or. 269, 465 P.2d 876 (1970). Indeed, legislatures in most of these states have since adopted comparative negligence. See, e.g., Del.Code Ann. tit. 10, § 8132 (enacted 1984); N.Y. C.P.L.R. 1411 (enacted 1975); N.D. Cent.Code § 9-10-07 (enacted 1973), superseded by N.D. Cent.Code § 32-03.2-02 (enacted 1987); Or. Rev.Stat. § 31.600, renumbered, Or.Rev.Stat. § 18.470 (enacted 1971). See also Steven Gardner, Contributory Negligence, Comparative Negligence, and Stare Decisis in North Carolina, 18 Campbell L.Rev. 1, 66 & n.419 (1996) (stating that, as of 1996, ten of the twelve states that deferred the abrogation of contributory negligence to the legislature later adopted comparative negligence). Two state courts adopted comparative negligence by judicial decision after deciding explicitly to defer to legislative action in an earlier decision. See Alvis v. Ribar, 85 Ill.2d 1, 52 Ill. Dec. 23, 421 N.E.2d 886 (1981); Gustafson v. Benda, 661 S.W.2d 11 (Mo. 1983). By contrast, the Alabama Supreme Court is the only court to revisit the adoption of comparative fault after deferring explicitly to its legislature (which remained inactive) and reaffirm the continued vitality of contributory negligence. The Supreme Court of Alabama stated summarily:

We have heard hours of oral argument; we have read numerous briefs; we have studied cases from other jurisdictions and law review articles; and in numerous conferences we have discussed in depth this issue and all of the ramifications surrounding such a change. After this exhaustive study and these lengthy deliberations, the majority of this Court, for various reasons, has decided that we should not abandon the doctrine of contributory negligence, which has been the law in Alabama for approximately 162 years.

Williams v. Delta Int'l Machinery Corp., 619 So.2d 1330, 1333 (Ala. 1993).

[11] As some scholars note, the deterrence rationale of contributory negligence (or comparative fault, for that matter) is dubious at best. "If the prospect of losing life and limb does not make a plaintiff careful, little further inducement to care will be added by speculations as to the outcome of a lawsuit. The same thing is often true of defendants. Yet today those who bear the burden of accident liability are increasingly absentee defendants —corporate and other employers or insurance companies, whose lives and limbs are not at stake in the accident.... Defendants, then, will often lack a powerful incentive to carefulness—self-preservation—that is virtually always present with plaintiffs." 4 Harper, James & Gray, supra, § 22.2 at 340-41.

[12] Further, Respondent and its Amici pointed out in oral argument that this Court reaffirmed the continued vitality of the doctrine recently in post-Harrison cases. See, e.g., Thomas v. Panco Mgmt. of Md., LLC, 423 Md. 387, 417-20, 31 A.3d 583, 601-03 (2011). Our continued adherence to the doctrine of contributory negligence in the cases cited by Respondent do not constitute an endorsement, however, by this Court as to the doctrine's continued value. We decide usually only the questions presented in successful petitions for certiorari or which may (or must) be reached fairly on the record in a given case. See Md. Rule 8-131. Before granting certiorari in the present case, we have not granted certiorari to consider whether to abrogate the doctrine of contributory negligence since our decision in Harrison. Thus, the recent decisions cited by Respondent applying the defense of contributory negligence to bar recovery cannot be construed as a reaffirmation by this Court, as recently as 2011, of the vitality and relevancy of the doctrine of contributory negligence in a modern context.

[13] This would be like urging Dr. Wolf Frankenstein (portrayed by Basil Rathbone) to wait to see if the village's elected officials will kill his monster, before taking matters into his own hands. In the meantime, many villagers will be lost. See Son of Frankenstein (Universal Pictures 1939).

[14] Coincidentally, this is the precise number of jurisdictions that preceded Maryland in abrogating in full the doctrine of interspousal tort immunity. See Bozman, 376 Md. at 487, 830 A.2d at 466. A critical mass has been reached for the adoption of comparative negligence, I submit.

[15] There may be much to learn as well from the evolution of comparative negligence in those states that adopted it initially by legislative act. The subsequent actions by the legislatures (and the courts) in those states will supply insights for how Maryland may address follow-on, collateral issues that are not appropriate to address here because of the limitations of the facts.

[16] As the author of one tort law treatise noted in response to Harrison, "The history [of legislative attempts to abrogate contributory negligence] appears more nearly indicative, it is suggested with respect, of the superior ability of insurers' lobbyists to influence a committee or its chairman in a non-public decision-making than an entire legislative body in an open vote." The author goes on to note that, in the Senate's first opportunity to vote on a comparative negligence bill, it passed 45-1 on the floor before being defeated behind closed doors in the House Judiciary Committee. 4 Harper, James & Gray, supra, § 22.18 at 495 n.1.

[17] States considering the judicial adoption of comparative negligence wrestled generally with the propriety of deferring legislative action versus judicial initiative. Twelve states and the federal government determined that contributory negligence is "a judicially created doctrine which can be altered or totally replaced by the court which created it." Alvis, 52 Ill.Dec. 23, 421 N.E.2d at 895. See United States v. Reliable Transfer Co., 421 U.S. 397, 410, 95 S.Ct. 1708, 44 L.Ed.2d 251 (1975) (holding that it is appropriate to "adopt the proportional fault doctrine without Congressional action"); Kaatz, 540 P.2d 1037, 1049 (Alaska 1975) ("It appears to us that continued adherence to the contributory negligence rule, absent legislative change, represents judicial inertia rather than a reasoned consideration of the intrinsic value of the rule."); Li v. Yellow Cab Co., 13 Cal.3d 804, 119 Cal.Rptr. 858, 532 P.2d 1226, 1233 (1975) (stating that an argument requiring the court to defer to legislative action regarding the abolition of contributory negligence is "fundamentally misguided"); Hoffman v. Jones, 280 So.2d 431, 436 (Fla.1973) (stating that the court has the "power and authority to reexamine the position [it] has taken in regard to contributory negligence and to alter the rule [it] ha[s] adopted previously"); Alvis v. Ribar, 85 Ill.2d 1, 52 Ill.Dec. 23, 421 N.E.2d 886, 896 (1981) (noting that where a "stalemate" exists between the legislature and the court and "the legislature has, for whatever reason, failed to act to remedy a gap in the common law that results in injustice, it is the imperative duty of the court to repair that injustice and reform the law to be responsive to the demands of society"); Goetzman v. Wichern, 327 N.W.2d 742, 752 (Iowa 1982) ("We believe the arguments for deference to the legislature in the present case are substantially outweighed by the considerations reflected in the decisions of other courts that have addressed the issue, the analyses of the commentators, and the concept of the judicial role exemplified in past decisions of this court."); Hilen v. Hays, 673 S.W.2d 713, 716-17 (Ky.1984) (declining to continue deference to the legislature despite recent legislative consideration of comparative negligence bills); Placek v. City of Sterling Heights, 405 Mich. 638, 275 N.W.2d 511, 518 (1979) ("[W]e find adoption of comparative negligence is consistent with this Court's responsibility to the jurisprudence of this state."); Gustafson v. Benda, 661 S.W.2d 11, 14-15 (Mo.1983) ("We have remained quiescent more than five years while waiting for the legislature to act.... We now are past the time when we should have resolved the uncertainty surrounding comparative fault..."); Scott v. Rizzo, 96 N.M. 682, 634 P.2d 1234, 1239 (1981) (stating that, "since the rule [of contributory negligence] is not one made or sanctioned by the legislature, but ... depends for its origins and continued viability upon the common law, it is a rule peculiarly for the courts to change if it is no longer justified" (internal quotation marks and citation omitted)); Nelson v. Concrete Supply Co., 303 S.C. 243, 399 S.E.2d 783, 784 (1991) (determining that comparative negligence is the "more equitable doctrine" and abolishing the "long-standing rule of contributory negligence" with reference to the lengthy discussion in Langley v. Boyter, 284 S.C. 162, 325 S.E.2d 550 (S.C.Ct.App.1984)); McIntyre v. Balentine, 833 S.W.2d 52, 56 (Tenn.1992) ("We recognize that this action could be taken by our General Assembly. However, legislative inaction has never prevented judicial abolition of obsolete common law doctrines, especially those, such as contributory negligence, conceived in the judicial womb."); Bradley v. Appalachian Power Co., 163 W.Va. 332, 256 S.E.2d 879, 884 & n. 14 (1979) (noting that the judiciary is capable of developing and adjusting the common law to grow with and adapt to changes in society). But see, e.g., Golden v. McCurry, 392 So.2d 815, 817 (Ala. 1981) (stating that, "even though this Court has the inherent power to change the common law rule of contributory negligence, it should, as a matter of policy, leave any change of the doctrine of contributory negligence to the legislature"); Codling v. Paglia, 32 N.Y.2d 330, 345 N.Y.S.2d 461, 298 N.E.2d 622, 630 (1973) ("With full awareness that the doctrine was of judicial rather than legislative origin, we are nonetheless not prepared at this time to substitute some formula of comparative negligence. In our opinion this is a topic now more appropriate for legislative address.") (comparative negligence enacted legislatively in 1975); Krise v. Gillund, 184 N.W.2d 405, 409 (N.D.1971) ("We believe that the abandonment by the courts of a long-standing rule, which would result in the adoption of any one of a number of interpretations of the comparative-negligence rule, is a change of such magnitude that it should be made by legislative, rather than by judicial, action.") (comparative negligence enacted legislatively in 1973).

[18] The present case does not involve multiple defendants. Thus, there are no joint tortfeasors. There is no governmental defendant here to tee-up questions under governmental tort claims statutes.

[19] Respondent and its Amici cite to numerous studies bemoaning the potential for increased litigation, taxes, and insurance rates if Maryland were to adopt comparative negligence. The research on such topics, however, is highly conflicted, and studies concluding that insurance rates will increase are criticized roundly for "lack of academic rigor" and failing to consider and control for additional variables. See Negligence Systems, supra, at 21, 55-63.

It is recognized generally that no "good data" exists on whether comparative negligence increases insurance rates, due to the difficulty of controlling for all of the variables existing in state automobile insurance markets. As acknowledged in the 2004 Maryland Department of Legislative Services Report, "[i]n the absence of any comprehensive study, it is impossible to state with any certainty the direct and indirect consequences of changing to a comparative negligence system." Id. at 21. The possibility that comparative fault may increase insurance rates is insufficient to justify retention of what is certainly an unjust system. As the Supreme Court of Kentucky stated in response to this very argument, "there are no good economies in an unjust law." Hilen, 673 S.W.2d at 718 (emphasis in original).

[20] This is more commonly referred to as the "less than fifty percent," or the "not as great as," approach. Twelve states employ this approach. Standing Committee on Rules of Practice and Procedure, Special Report to [Maryland] Court of Appeals on Aspects of Contributory Negligence and Comparative Fault 9 & n.7 (2011)(hereinafter "Rules Committee Report").

[21] This approach is known generally as the "50%," or the "not greater than," approach. Twenty-one states employ this approach. Rules Committee Report, supra, at 9 & n. 8.

[22] In both types of modified comparative fault, there is some inconsistency regarding whether a plaintiff's proportionate fault is to be judged against each defendant individually, or all defendants collectively. Three states—Idaho (not as great as), Minnesota (not greater than), and Wisconsin (not greater than)—employ the individual approach, requiring the plaintiff's proportion of fault to be judged against each defendant's fault to determine if the plaintiff can recover against that particular defendant. Rules Committee Report, supra, at 21-22.

[23] For those familiar only with the application of contributory negligence, it may be difficult to comprehend specifically how a jury is to reach a determination of relative fault in exact percentages. As the Supreme Court of Illinois stated, "[t]he simple and obvious answer ... is that in [46] jurisdictions of the United States such apportionment is being accomplished by juries," and is "no more difficult or sophisticated for jury determination than others in a jury's purview, such as compensation for pain and suffering." Alvis, 52 Ill.Dec. 23, 421 N.E.2d at 893. Or, as Petitioner asserted in oral argument, this is, quite simply, what juries do. See, e.g., Lande & MacAlister, supra, at 7 (noting that juries decide complex questions routinely).

I agree with the Supreme Court of Tennessee that, while "it is impossible to formulate an exhaustive set of guidelines for apportioning fault that will adequately cover the manifold circumstances in which negligence actions may arise, ... trial courts and juries must have some guidance, however imprecise and imperfect, in discharging their respective duties in apportioning fault." Eaton v. McLain, 891 S.W.2d 587, 591 (Tenn.1994). Juries should continue to be guided by the tenets of our traditional negligence law—for example, the relevant standard of care owed by the parties and the causal relationship between the parties' actions and the harm caused—as well as other tort doctrines that may, or may not, be subsumed by a shift to comparative fault, such as assumption of the risk and the doctrine of last clear chance. See Eaton, 891 S.W.2d at 592 (directing consideration of traditional common law negligence principles such as implied assumption of the risk, remote contributory negligence, last clear chance, the sudden emergency doctrine, and the rescue doctrine); National Conference of Commissioners on Uniform State Laws, Uniform Comparative Fault Act § 2 Comment (1977) (hereinafter "UCFA"). Relative degrees of fault are dependent upon the circumstances and facts of each case, and juries should "rely upon their common sense and ordinary experience in apportioning fault." Eaton, 891 S.W.2d at 593.

[24] Twelve of the forty-six comparative fault states employ pure comparative fault, while thirty-three apply a form of modified fault. Rules Committee Report at 9-10. South Dakota, although considered to be a comparative fault jurisdiction, applies neither a pure nor modified system. Instead, it applies a slight negligence standard. Christopher J. Robinette & Paul G. Cherland, Contributory or Comparative: Which is the Optimal Negligence Rule?, 24 N. Ill. U.L.Rev. 41, 44 (2003).

[25] See Kaatz v. State, 540 P.2d 1037, 1049 (Alaska 1975); Li v. Yellow Cab Co., 13 Cal.3d 804, 119 Cal.Rptr. 858, 532 P.2d 1226, 1242 (1975); Hoffman v. Jones, 280 So.2d 431, 438 (Fla. 1973); Alvis v. Ribar, 85 Ill.2d 1, 52 Ill.Dec. 23, 421 N.E.2d 886, 898 (1981); Goetzman v. Wichern, 327 N.W.2d 742, 753 (Iowa 1982); Hilen v. Hays, 673 S.W.2d 713, 719 (Ky.1984); Placek v. City of Sterling Heights, 405 Mich. 638, 275 N.W.2d 511, 519 (1979); Gustafson v. Benda, 661 S.W.2d 11, 15 (Mo. 1983); Scott v. Rizzo, 96 N.M. 682, 634 P.2d 1234, 1241 (1981). In two of the states that adopted judicially pure comparative fault, the legislature codified later a form of modified comparative fault. See 735 Ill. Comp. Stat. § 5/2-1116 (2012) (abrogating Alvis v. Ribar, 85 Ill.2d 1, 52 Ill.Dec. 23, 421 N.E.2d 886 (1981) in favor of a modified comparative fault system); Iowa Code § 668.3 (2011) (abrogating Goetzman v. Wichern, 327 N.W.2d 742 (Iowa 1982) in favor of a modified comparative fault system).

[26] See Nelson v. Concrete Supply Co., 303 S.C. 243, 399 S.E.2d 783, 784 (1991); McIntyre v. Balentine, 833 S.W.2d 52, 57 (Tenn.1992); Bradley v. Appalachian Power Co., 163 W.Va. 332, 256 S.E.2d 879, 885 (1979). Most states adopting modified comparative fault have done so through legislative action. Scholars and commentators disagree generally with modified comparative fault. See, e.g., 4 Harper, James & Gray, supra, § 22.15 at 459-61 ("It is difficult to demonstrate a rational reason [for the adoption by legislatures of modified comparative fault]. A common explanation, in terms of pressures on legislators by lobbyists for defense interests, is not implausible.").

[27] What I mean by "henceforth" will be amplified shortly in this opinion.

[28] See, e.g., Md. Code (1977, 2009 Reply. Vol.), Transportation Article, § 21-1306(e)(1)(i)-(ii) ("The failure of an individual to wear protective headgear required under subsection (b) of this section may not: (i) Be considered evidence of negligence; (ii) Be considered evidence of contributory negligence"); Md.Code (1977, 2012 Supp.), Transportation Article, § 21-1306.1(e)(1)(i)-(ii) (same); Md.Code (1977, 2009 Repl.Vol.), Transportation Article, § 22-201.2(c)(1)(i)-(ii) ("If a person is convicted under this section, the conviction may not: (i) Be considered evidence of negligence; (ii) Be considered evidence of contributory negligence"); Md. Code (1977, 2009 Repl.Vol.), Transportation Article, § 22-412.2(i) ("A violation of this section is not contributory negligence and may not be admitted as evidence in the trial of any civil action."); Md.Code (1977, 2009 Repl. Vol.), Transportation Article, § 22-412.3(h)(1)(i)-(ii) ("Failure of an individual to use a seat belt in violation of this section may not: (i) Be considered evidence of negligence; (ii) Be considered evidence of contributory negligence"); Md.Code (1977, 2009 Repl. Vol.), Transportation Article, § 22-412.4(c)(1)(i)-(ii) ("The failure of a person to use a seat belt or restraining device required under this section may not: (i) Be considered evidence of negligence; (ii) Be considered evidence of contributory negligence"); Md. Code (2002, 2012 Repl.Vol.), Criminal Law Article, § 4-104(e)(1)(i)-(ii) ("A violation of this section may not: (i) be considered evidence of negligence; (ii) be considered evidence of contributory negligence").

[29] Indiana, for example, does not apply its comparative fault doctrine to suits against governmental entities, applying instead the doctrine of contributory negligence. See Penn Harris Madison Sch. Corp. v. Howard, 861 N.E.2d 1190, 1193 (Ind.2007).

[30] As noted by the 2004 Maryland Department of Legislative Services study, only eight of the states employing comparative fault retain joint and several liability in its entirety, although, conversely, only ten abolished it completely. The remaining twenty-eight states employ joint and several liability in specified instances. Negligence Systems, supra, at 17. For example, joint and several liability is retained generally where multiple tortfeasors act in concert; some states apply the doctrine where multiple tortfeasors commit environmental harm; and some apply it where there is no contributory fault on the part of the claimant. Rules Committee Report, supra, at 23-24; National Conference of Commissioners on Uniform State Laws, Uniform Apportionment of Tort Responsibility Act at 4-5 (2003) (hereinafter "UATRA").

Although the Uniform Comparative Fault Act retained joint and several liability completely, see UCFA § 4, Comment, the more recent relevant uniform act, the Uniform Apportionment of Tort Responsibility Act ("UATRA"), limits the application of the doctrine. The UATRA abolishes joint and severally liability generally, but retains it in four instances: (1) where two or more tortfeasors act in concert with intent to cause personal injury or harm to property; (2) where one party fails to prevent another party from intentionally causing personal injury or harm to property; (3) where the liability of one defendant is based on the act or omission of another party; and (4) where another statute requires the judgment to be entered jointly and severally. UATRA § 6(a). As the Rules Committee noted in considering the potential modification of joint and several liability, "[t]here is a smorgasbord from which to choose." Rules Committee Report, supra, at 24. See also Lande & MacAlister, supra, at 10-13 (arguing that a pure comparative fault system, in conjunction with joint and several liability, "preserves joint and several liability's many virtues while properly deducting from a plaintiff's recovery a percentage commensurate with his or her breach of the duty to look out for his or her own safety.").

Additionally, states abolishing joint and several liability confront the attendant issue of whether, and, if so, how to reallocate among remaining parties an uncollectible share of liability.

[31] Massachusetts has long applied a pro rata contribution scheme in conjunction with a system of comparative fault. See Shantigar Found. v. Bear Mountain Builders, 441 Mass. 131, 804 N.E.2d 324, 332 (2004).

[32] Although we recognize that the doctrine of selective prospectivity may be criticized as treating similarly situated litigants inequitably, as we recognized in Julian, the reasons for doing so are "well stated, though in a slightly different context, by Justice Brennan...:

Sound policies of decision-making, rooted in the command of Article III of the Constitution that we resolve issues solely in concrete cases or controversies, and in the possible effect upon the incentive of counsel to advance contentions requiring a change in the law, militate against denying [these litigants] the benefit of today's decisions. Inequity arguably results from according the benefit of a new rule to the parties in the case in which it is announced but not to other litigants similarly situated in the trial or appellate process who have raised the same issue. But we regard the fact that the parties involved are chance beneficiaries as an insignificant cost for adherence to sound principles of decision-making."

Julian, 320 Md. at 13, 575 A.2d at 741 (quoting Stovall v. Denno, 388 U.S. 293, 301, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967)) (alterations in original).