572*572 Thomas G. Zentner, Jr., Theus, Grisham, Davis & Leigh, Monroe, for Monroe City School Bd. defendant-applicant.

Milton Dale Peacock, Monroe, for Sonya R. Clomon plaintiff-respondent.

Dissenting Opinion by Justice Cole December 14, 1990.

Additional Reasons in Support of Majority Opinion January 4, 1991.

Additional Reasons in Dissent January 11, 1991.

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*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*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*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.

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*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

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*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.

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*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

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*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.

WATSON, Justice, concurring.

I concur in the result reached by the majority in the extremely well written and well supported opinion.

However, in my view this is not a "bystander recovery" case and I therefore believe that much of the comparison with Lejeune v. Rayne Branch Hospital, 556 So.2d 559 (La.1990), where I dissented, is not necessary. Here the plaintiff was not a bystander; she was physically involved in the accident. For this reason, I would hold that she is entitled to recover for her emotional damages just as she would be if she had suffered physical damages or a combination of the two. Some might regard the distinction I see as a quibble, but awarding damages to a person actually involved in an accident, no matter what the nature of the damages, is a much more precise and concrete application of Civil Code article 2315 than formulating and applying the necessarily arbitrary guidelines necessitated by the allowance of "bystander recovery."

Therefore, I respectfully concur in the result.

HALL, Justice (concurring).

I subscribe to the majority opinion and add these concurring reasons.

The majority opinion quite properly distinguishes this case from Lejeune. Lejeune is a bystander case in which the plaintiff sought to recover emotional damages suffered as a result of witnessing injuries to a third person caused by the defendant's breach of duty owed to the third person. Here, plaintiff was not a bystander. As a result of the defendant's breach of duty owed to her, she became a participant in the accident. Plaintiff does not seek to recover as a result of witnessing an injury to another; she seeks to recover because she was involved in a traumatic accident as a result of the defendant's negligence. Her emotional distress suffered during an accident in which she was involved and which was caused by defendant's negligence is compensable. Since she was a participant in the accident she is entitled to recover because of her concern for her own well-being, not merely because of her concern for a third party as a witness to the accident. While she probably suffered no fear for her physical well-being, she likely suffered great fear of the consequences of having hit a child and severe guilt and remorse. This emotional distress, conceded by all to be serious and disabling, was caused by the negligence of the defendant, and therefore plaintiff is entitled to recover for it.

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.

580*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 cases^[1] in which the lower courts may award damages for emotional 581*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*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 statutes^[3] 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 anguish^[4] 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*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*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., Hymel v. 585*585 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*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.

587*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*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.

[1] See discussion infra, § II.

[2] A non-exhaustive list of examples will suffice to illustrate the point. R.S. 32:80 is directed toward the protection of children entering or exiting a school bus; R.S. 32:168-32:174 are designed to protect motorists at railroad crossings; R.S. 32:190 is designed to protect motorcyclists by requiring them to wear helmets; R.S. 32:211-32:219 are designed to protect pedestrians.

[3] The reasoning used by the majority opinion is by no means limited to traffic regulations.

[4] See, Lejeune, supra.

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).

899*899 Charles W. Swanson, Susano, Sheppeard, Giordano, & Swanson, Knoxville, for appellant.

Jeffrey L. Cunningham, Carter, Harrod & Cunningham, Athens, for appellee.

John A. Day, Jeffrey A. Garrety, Nashville, for amicus curiae, Tennessee Trial Lawyers Ass'n.

OPINION

ANDERSON, Justice.

In this appeal, we are asked to decide whether and to what extent the common-law doctrine of assumption of risk retains its vitality in view of our recent decision in McIntyre v. Balentine, 833 S.W.2d 52 (Tenn. 1992). There, we held that contributory negligence no longer serves as a complete bar to a plaintiff's recovery, but is to be considered in apportioning damages according to the principles of modified comparative fault so long as the plaintiff's negligence remains less than the defendant's negligence. For the reasons stated herein, we conclude that the doctrine of implied assumption of risk, as well as the terminology associated with that defense, should be abolished. Express assumption of risk is unaffected by our holding since its vitality stems from a contractual undertaking to relieve a potential defendant from any duty of care to an injured party.

BACKGROUND

The defendant, Jamie McConkey d/b/a J & V Sales of Englewood, Tennessee, employed the plaintiff, Nancy S. Perez, as an operator of screen printing machinery which was located in the back room of another business. The back room was approximately twenty-five feet wide and thirty feet long. One component of the screen printing equipment Perez used in the discharge of her duties was a dryer which heated up to three hundred and ten (310) degrees Fahrenheit. In addition to the excessive heat generated by the dryer, Perez testified that the printing process itself produced smoke and vapors which caused her to experience flu-like symptoms. Perez contends that on several occasions she complained to the defendant about the oppressive heat and the lack of adequate ventilation, to no avail.

On July 10, 1989, while working on a printing assignment in the back room, Perez testified she fainted and fell due to the heat and vapors. As a result of the fall, she was hospitalized for several days with heat exhaustion and a head injury, and thereafter underwent surgery.

Perez filed a common-law negligence action against the defendant-employer, McConkey,^[1] alleging that inadequate ventilation resulted in conditions that rendered the work place unsafe and that, despite her persistent complaints, the defendant negligently failed to remedy the situation.

At the trial, after the plaintiff rested her proof, the defendant moved for a directed verdict, asserting the affirmative defense of implied assumption of risk. The trial court granted the directed verdict motion, finding as a matter of law, that the plaintiff had assumed the risk of the injuries she sustained. The plaintiff appealed. The Court of Appeals initially and accurately concluded that the principles of comparative fault enunciated in McIntyre are applicable to this case.^[2] The Court then discussed the effect of our adoption of comparative fault on the common-law doctrine of assumption of risk, and quoted extensively from an analysis of the issue by Professor Carol A. Mutter contained in a law review article entitled Moving to Comparative Negligence in an Era of Tort Reform: Decisions for Tennessee, 57 Tenn. L.Rev. 199 (1990)^[3], in the formation of their own opinion.

900*900 According to that analysis,^[4] there are two basic types of assumption of risk, express and implied. Express assumption of risk refers to an express release, waiver, or exculpatory clause, by which one party agrees to assume the risk of harm arising from another party's negligence. Such agreements are of a contractual nature and will generally be enforced by a court unless it is contrary to a sound public policy. Id. at 285. Implied assumption of risk refers to at least two different concepts, primary implied assumption of risk and secondary implied assumption of risk. Implied assumption of risk, in its primary sense, applies to bar recovery when a plaintiff has assumed known risks inherent in a particular activity, such as observing a baseball game from an unscreened seat. Id. at 286. In this situation, an assumption of risk defense is simply an alternative manner of stating that the plaintiff has failed to establish a cause of action, because the defendant has no duty to protect the plaintiff from the inherent risk. Id. Secondary implied assumption of risk applies when the plaintiff, either reasonably or unreasonably,^[5] decides to encounter a known risk. When the plaintiff's decision to take the risk is unreasonable, secondary assumption of risk is indistinguishable from contributory negligence, and should only reduce, not preclude, recovery under a comparative fault analysis. Id. When the plaintiff's decision to encounter the risk is reasonable, the plaintiff is not negligent, but because the decision is voluntary, commentators are split as to whether a plaintiff's recovery, under comparative fault, should be precluded, reduced or unaffected. Id.

After considering Professor Mutter's analysis, the Court of Appeals concluded that:

Tennessee's adoption of the doctrine of comparative fault affects the principle of assumption of risk in the following ways: first, express assumption of risk or consent, such as a contract between the parties, as qualified in Olson v. Molzen, 558 S.W.2d 429 (Tenn. 1977), remains an absolute bar to recovery by a plaintiff; second, primary assumption of risk, as when a plaintiff voluntarily assumes known risks inherent in an activity, retains its viability under comparative negligence as a complete bar to recovery; but third, under comparative fault, secondary implied assumption of risk, which is nothing more than an aspect of contributory negligence, may serve to reduce a plaintiff's damages, but not necessarily — depending on the degree of the plaintiff's negligence — preclude recovery.^[6]

The Court of Appeals vacated the judgment of the trial court and remanded the matter to the trial court for proceedings in accordance with the newly adopted standard. We granted the defendant's application for permission to appeal and now modify and affirm the judgment of the Court of Appeals on the separate grounds stated below.

HISTORICAL DEVELOPMENT

The Latin maxim volenti non fit injuria, which means — to one who is willing no harm is done, was often described as a synonym 901*901 for assumption of risk. It was originally applied in Roman-Law as a means of validating the process by which a free citizen sold himself into slavery.^[7] Although the date it first appeared in recorded English case law was 1305,^[8] the first notable expression of the contemporary common-law doctrine of assumption of risk has been traditionally traced to Lord Abinger's opinion in Priestly v. Fowler, 3 M. & W. 1, 150 Eng.Rep. 1030 (Ex. 1837). There, the plaintiff, a servant of the defendant, was injured by being thrown to the ground when a "van," overloaded by another of the defendant's servants, broke down.^[9] Lord Abinger denied recovery, concluding that "the plaintiff must have known as well as his master, and probably better, whether the van was sufficient, whether it was overloaded, and whether it was likely to carry him safely." Id., 150 Eng.Rep. at 1033. Although Lord Abinger was addressing himself to domestic servants such as chamber maids, coachmen, and footmen, the doctrine of assumption of risk expanded and was extensively applied in master-servant cases during the ensuing industrial revolution where it was interposed to defeat countless claims of injured workers.

Inevitably, the doctrine became a part of American common law as an instrument of public policy to be applied in the American Industrial Revolution. In a refinement of the holding in Priestly, Chief Justice Shaw of the Supreme Judicial Court of Massachusetts in Farwell v. Boston & Worcester RR Corp., 45 Mass. 49 (1842), during our nation's Industrial Revolution, found that a worker's contract of employment impliedly includes the risks of his profession. The court identified three justifications for its holding: (1) the chance of injury is reflected in compensation; (2) the employee is as likely to know of the dangers as the employer; and (3) non-compensation of injuries tends to make workers more careful. Id. The United States Supreme Court thereafter endorsed the doctrine in Tuttle v. Detroit, Grand Haven & Milwaukee Ry., 122 U.S. 189, 7 S.Ct. 1166, 30 L.Ed. 1114 (1886) as a necessary "rule of public policy, inasmuch as an opposite doctrine would not only subject employers to unreasonable and often ruinous responsibilities, thereby embarrassing all branches of business." Id. 122 U.S. at 196, 7 S.Ct. at 1169.

In Tennessee the doctrine of assumption of risk developed in a similar fashion. The applicable rule of law was stated in Nashville & Chattanooga Railroad Co. v. Elliott, 41 Tenn. 611, 616 (1860), as follows:

The servant on entering into the service knows, or is taken to know, that there are extraordinary dangers inseparable from such a service, which human care and foresight cannot always guard against; he is not bound to incur these known perils incident to the service, and may refuse to do so, or he may, as far as can be done, provide for them, in the rate of compensation or otherwise. But if he voluntarily engages to serve, in view of all the hazards to which he will be exposed, it is well settled that, as between himself and his employer, he undertakes to run all the ordinary risks of the service... .

Thereafter, this Court consistently applied the doctrine in the employer-employee context. See e.g. Acme Box Co. v. Gregory, 119 Tenn. 537, 105 S.W. 350 (1907); Moore v. Chattanooga Elec. R.R., 119 Tenn. 710, 109 S.W. 497 (1908); Heald v. Wallace, 109 Tenn. 346, 71 S.W. 80 (1902); see generally 11 Tenn.Juris., Employer and Employee, § 24, Note 6 (1984 & Supp. 1993).

The principal reason for the development of the doctrine was explained by the United States Supreme Court in Tiller v. Atlantic Coast Line R. Co.:

Assumption of risk ... was developed in response to the general impulse of common law courts at the beginning of this period [the industrial revolution] to insulate the employer as much as possible from bearing 902*902 the "human overhead" which is an inevitable part of the cost — to someone — of the doing of industrialized business. The general purpose behind the development in the common law seems to have been to give maximum freedom to expanding industry.

318 U.S. 54, 58-59, 63 S.Ct. 444, 446-47, 87 L.Ed. 610 (1943). See also Bohlen, Voluntary Assumption of Risk, 20 Harv.L.Rev. 14 (1906) (hereinafter Bohlen, 20 Harv.L.Rev. at ___.).

Irrespective of its initial impetus, the doctrine over time expanded and spread from its application in the employer-employee context, embedding itself in virtually every type of negligence law.^[10] Wherever it was held to apply, the doctrine's effect was to bar any recovery by the plaintiff. The common analysis undertaken in an assumption of risk case entails consideration of three elements, actual knowledge of a danger, appreciation of the gravity of the danger, and voluntary exposure to the danger.^[11] Tennessee courts have adopted this analysis. See Haga v. Blanc & West Lumber Co., 666 S.W.2d 61, 65 (Tenn. 1984); Ellithorpe v. Ford Motor Co., 503 S.W.2d 516, 522 (Tenn. 1973); Rogers v. Garrett, 217 Tenn. 282, 397 S.W.2d 372 (1965); Cathcart v. Cathcart, 719 S.W.2d 301 (Tenn. App. 1986); Baker v. Riverside Church of God, 61 Tenn. App. 270, 453 S.W.2d 801 (1970).

CURRENT STATUS

In contrast to its growth during the first part of this century, the doctrine of implied assumption of risk has lately been on the decline. The proliferation of Workers' Compensation Statutes in all the states and the District of Columbia have abrogated the doctrine in the very context in which it gained acceptance with such unseemly haste.^[12] Moreover in other areas of tort law, the doctrine has been a subject of controversy and confusion because, as previously discussed, the term has been used by courts to refer to at least two different legal concepts, primary and secondary implied assumption of risk, which also overlap both with the basic common-law principles of duty and with aspects of the doctrine of contributory negligence.^[13]

In its primary sense, implied assumption of risk focuses not on the plaintiff's conduct in assuming the risk, but on the defendant's general duty of care.^[14] The doctrine of primary implied assumption of risk "technically is not a defense, but rather a legal theory which relieves a defendant of the duty which he might otherwise owe to the plaintiff with respect to particular risks." Armstrong v. Mailand, 284 N.W.2d 343, 351 (Minn. 1979); see also Blackburn v. Dorta, 348 So.2d 287, 291 (Fla. 1977) ("primary assumption of risk ... is subsumed in the principle of negligence itself."). Clearly, primary implied assumption of risk is but another way of stating the conclusion that a plaintiff has failed to establish a prima facie case by failing to establish that a duty exists.

On the other hand, secondary implied assumption of risk is an affirmative defense which must be asserted by the defendant after a negligent breach of duty has been established. As Professor Mutter points out in her analysis, this type of implied assumption of risk refers to both unreasonable and reasonable conduct by the plaintiff in assuming a known risk.^[15] Secondary implied assumption of risk has been further subdivided by courts and commentators into "unreasonable or qualified" secondary assumption of risk and "reasonable or strict or pure" secondary 903*903 implied assumption of risk.^[16] Qualified or unreasonable secondary assumption of risk is functionally indistinguishable from contributory negligence.^[17]

The confusion engendered by the overlap of the doctrine of assumption of risk with the common law concepts of duty and contributory negligence, as well as the harsh results of the defense, has resulted in criticism of the doctrine, and has led legal commentators to call for the doctrine's abrogation.^[18] For example, Justice Frankfurter, in a concurring opinion in Tiller v. Atlantic Coast Line R.R, 318 U.S. at 68-69, 63 S.Ct. at 452, criticized the indiscriminate use of the term stating,

[t]he phrase "assumption of risk" is an excellent illustration of the extent to which uncritical use of words bedevils the law. A phrase begins life as a literary expression; its felicity leads to its lazy repetition; and repetition soon establishes it as a legal formula, undiscriminatingly used to express different and sometimes contradictory ideas.

However, the greatest blow to the doctrine of implied assumption of risk has been the overwhelming acceptance and adoption by most states of comparative fault or comparative negligence principles.^[19] Of the forty-five states, other than Tennessee, that apply principles of comparative fault, only five states — Georgia, Nebraska, Mississippi, Rhode Island and South Dakota — retain assumption of risk as a complete bar to recovery.^[20] Ten states abolished the doctrine entirely as a separate affirmative defense before, or without any reference to, the adoption of the state's particular comparative-negligence law.^[21] Ten other states by statute have abolished or subsumed the defense of assumption of risk into their comparative fault schemes.^[22] The remaining nineteen states which have judicially considered the appropriate role of assumption of risk in light of a statutory or judicial adoption of comparative negligence or fault principles have also altered or abolished the common law doctrine.^[23]

904*904 Whether by statute or by judicial decision, those states which have tailored assumption of risk to mesh with comparative negligence or fault principles appear to follow one of three approaches. Some states have merged secondary implied assumption of risk into the comparative negligence scheme, while retaining the principle of primary implied assumption of risk as a complete bar to recovery.^[24] After concluding that the situations to which both primary and secondary implied assumption of risk have been applied are just as amenable to resolution under the common law concepts of duty and comparative fault, other jurisdictions have abolished implied assumption of risk entirely, and dispensed with using assumption of risk terminology.^[25] Finally, some jurisdictions have combined the doctrine of primary implied assumption of risk with the common-law concept of duty, while retaining the defense of secondary implied assumption of risk as a factor for comparison in the same manner as any plaintiff's negligence and not as a complete bar to recovery.^[26]

In spite of the diversity of opinion as to the proper role of the various categories of implied assumption of risk in a comparative negligence scheme, commentators and courts almost unanimously agree that even in a system of comparative fault, express assumption of risk should remain an absolute bar to recovery.^[27] The uniformity of decision on this issue has been attributed to the fact that "express assumption of risk involves an affirmatively demonstrated, and presumably bargained upon choice by the plaintiff to relieve the defendant of his legal duty... ." Prosser and Keeton, § 68, at 496. Again we emphasize that express assumption of risk occurs when a party specifically agrees, prior to the time of injury, to accept a particular risk of harm resulting from another party's conduct.^[28] The law of express assumption of risk is generally uniform among the states.^[29] Tennessee's case law in this area is typical. Specifically, an express release, waiver, or exculpatory words by which one party agrees to assume the risk of harm arising from another party's negligent conduct will be enforced by the courts so long as it does not extend to liability for willful or gross negligence and does not otherwise offend public policy. Crawford v. Buckner, 839 S.W.2d 754, 759-60 (Tenn. 1992); Olson v. Molzen, 558 S.W.2d 429, 430 (Tenn. 1977).

905*905 STATUS IN TENNESSEE

After reviewing the wealth of authorities from other jurisdictions, as well as the writings of numerous legal commentators on the subject, we join the vast majority of jurisdictions by concluding that the doctrine of implied assumption of risk no longer operates as a complete bar to recovery in Tennessee. It would be ironic indeed if, after abolishing the all-or-nothing proposition of contributory negligence in McIntyre, we were to reinstate it here using the vehicle of assumption of risk. However valid at the time, the policy of insulating business from human overhead, from which assumption of risk developed, now runs directly counter to modern social policy that is typified by the almost universal enactment of workmen's compensation legislation.^[30]

We agree with those states that have abandoned all categories of implied assumption of risk, as well as the traditional assumption of risk terminology, in the wake of judicial or statutory adoption of a scheme of comparative fault. The types of issues raised by implied assumption of risk are readily susceptible to analysis in terms of the common-law concept of duty and the principles of comparative negligence law.

Under Tennessee law, no claim for negligence can succeed in the absence of any one of the following elements: (1) a duty of care owed by the defendant to the plaintiff; (2) conduct falling below the applicable standard of care amounting to a breach of that duty; (3) an injury or loss; (4) causation in fact; and (5) proximate, or legal cause. Bradshaw v. Daniel, 854 S.W.2d 865, 869 (Tenn. 1993); McClenahan v. Cooley, 806 S.W.2d 767, 774 (Tenn. 1991). Because duty is an element of the plaintiff's prima facie case, the doctrine of primary implied assumption of risk, as an alternate expression of the concept of duty, would serve no productive purpose; indeed it would only confuse and convolute the issues. For that reason, we decline to adopt that aspect of the thoughtful opinion of the Court of Appeals. While we agree that those situations described by commentators as involving the concept of primary implied assumption of risk will preclude recovery under a scheme of comparative fault, the same result will be obtained, without any unnecessary confusion, if Tennessee courts use the common-law concept of duty to analyze the issues.

Moreover, we do not consider it necessary or desirable to retain the doctrine of secondary implied assumption of risk as a separate defense. Rather, the reasonableness of a party's conduct in confronting a risk should be determined under the principles of comparative fault. Attention should be focused on whether a reasonably prudent person in the exercise of due care knew of the risk, or should have known of it, and thereafter confronted the risk; and whether such a person would have behaved in the manner in which the plaintiff acted in light of all the surrounding circumstances, including the confronted risk.^[31]

The issues formerly amenable to assumption of risk analysis will inevitably arise in future negligence cases. We believe, however, that confusion and complications can be avoided if the resolution of those issues proceeds in accordance with principles of general negligence law and principles of comparative fault analysis.

We also believe that the contractually-oriented principle of express assumption of risk is unaffected by our shift from contributory negligence to comparative fault. In exercising, perhaps, an over abundance of caution, some jurisdictions have required that the term "express assumption of risk" be banished from the range of acceptable legal 906*906 terms of art. Although we have concluded that implied assumption of risk doctrine and terminology should no longer be used, we find it unnecessary to eliminate the term "express assumption of risk", primarily because it has never been used to refer to various, distinct, and overlapping legal concepts.

CONCLUSION

Based on the foregoing analysis, we hold that implied assumption of risk is no longer a complete bar to recovery in Tennessee. Instead the doctrine is abolished because the situations to which it applied under the former common law contributory negligence scheme are more clearly and readily amenable to analysis after McIntyre in terms of the common-law concept of duty and by reference to principles of comparative fault. Express assumption of risk as it existed under the former common-law contributory negligence regime is unaffected by this holding.

The principles adopted today apply to (1) all cases tried or retried after the date of this opinion, and to (2) all comparative fault cases pending on appeal in which the assumption of risk issue was raised in the trial court.

The judgment of the Court of Appeals, as modified, is affirmed. The case is remanded for a determination of the issues in this case in accordance with this Opinion. Costs of this appeal are taxed to the defendant.

REID, C.J., and DROWOTA and O'BRIEN, JJ., concur.

DAUGHTREY, JJ., not participating.

[1] The plaintiff's claims against the defendant pursuant to the Workers' Compensation Act were dismissed because the defendant employed fewer than five persons and, therefore, was not subject to the Act.

[2] We stated in McIntyre that the principle set forth therein would apply to all cases tried or retried after the date of the opinion. The opinion was released on May 4, 1992. This case was tried on June 17, 1992; thus, the principles of comparative fault as set forth in McIntyre apply in this case. However, it does not appear from the record that McIntyre was ever called to the attention of the trial court judge.

[3] Hereinafter Mutter, 57 Tenn.L.Rev. at ___.

[4] We note, as Professor Mutter did in her article on page 286, that her analysis of the doctrine of implied assumption of risk is not original, but was first discussed by Professors Harper and James and has since been adopted by numerous other courts and commentators. See e.g. 2 Harper and James, Law of Torts, § 21.7, p. 1190 (1956); 4 Harper, James & Gray, The Law of Torts, § 21.0, at 187-90 (2d ed. 1986 and Supp. 1993) (hereinafter Harper, James & Gray, § ___ at ___); Meistrich v. Casino Arena Attractions, Inc., 31 N.J. 44, 155 A.2d 90, 96 (1959); 1 A, Best, Comparative Negligence Law and Practice § 4.20[1][b][ii] at 4-42 (1993) (hereinafter Best, § ___, at ___).

[5] Secondary implied assumption of risk has been subdivided by some commentators into "unreasonable or qualified" secondary implied assumption of risk which refers to a plaintiff's decision to unreasonably encounter a risk, and which is functionally indistinguishable from contributory negligence. Mutter, 57 Tenn.L.Rev. at 285-86; Best, § 4.20[1][b][ii] at 4-42. "Reasonable, strict or pure" secondary implied assumption of risk are the labels courts and commentators have used to refer to the defense when it bars a plaintiff's recovery even though the decision to encounter the risk was reasonable. Id.

[6] The Court of Appeals, in its holding did not distinguish between reasonable and unreasonable secondary implied assumption of risk, but stated in a footnote that because reasonable secondary implied assumption of risk would not constitute negligent conduct, it should not be considered in a comparative fault calculation.

[7] Lyons v. Redding Const. Co., 83 Wash.2d 86, 515 P.2d 821, 822 (1973) (en banc).

[8] Comment, Employees' Assumption of Risk: Real or Illusory Choice?, 52 Tenn.L.Rev. 35, 38 (1984).

[9] It was also in Priestly v. Fowler, supra, that Lord Abinger created the fellow-servant doctrine which this Court recently abandoned in Glass v. City of Chattanooga, 858 S.W.2d 312 (1993).

[10] Salinas v. Vierstra, 107 Idaho 984, 695 P.2d 369, 372 (1985); Mizushima v. Sunset Ranch, Inc., 103 Nev. 259, 737 P.2d 1158, 1160 (1987).

[11] See D. Dobbs, R. Keeton, D. Owen, & W. Keeton, Prosser and Keeton on the Law of Torts, § 68, at 480 (5th ed. 1984 & Supp. 1988) [hereinafter Prosser and Keeton § ___, at ___].

[12] Summaries of state compensation statues are found in 4 A. Larson, The Law of Workmen's Compensation 509 (Appendix A) (1980) and current supplements. See e.g. Tenn. Code Ann. § 50-6-111 (1991).

[13] Prosser and Keeton, § 68 at 480; see also notes 4 & 5, supra.

[14] Best, § 4.20[1][b][ii] at 4-41.

[15] Mutter, 57 Tenn.L.Rev. at 286; see also Best, § 4.20[1][b][ii] at 4-42.

[16] Id.; see also Parker v. Redden, 421 S.W.2d 586, 592 (Ky. 1967); and Note 5, supra.

[17] See generally Mutter, 57 Tenn.L.Rev. at 285-86; Best, § 4.20[1][b][ii] at 4-42.

[18] See e.g. Harper, James & Gray, § 21.8 at 259-60; James, Assumption of Risk: Unhappy Reincarnation, 78 Yale L.J. 185 (1968); James, Voluntary Assumption of Risk, 61 Yale L.J. 141, 168-69 (1952); Bohlen, 20 Harv.L.Rev. at 91.

[19] Only Alabama, Maryland, North Carolina and Virginia retain a common law contributory negligence scheme.

[20] See Parzini v. Center Chemical Co., 129 Ga. App. 868, 201 S.E.2d 808 (1973); Singleton v. Wiley, 372 So.2d 272 (Miss. 1979); Landrum v. Roddy, 143 Neb. 934, 12 N.W.2d 82 (1943); Kennedy v. Providence Hockey Club, 119 R.I. 70, 376 A.2d 329 (1977); Bartlett v. Gregg, 92 N.W.2d 654 (S.D. 1958).

[21] Leavitt v. Gillaspie, 443 P.2d 61 (Alaska 1968); Bulatao v. Kauai Motors, Ltd., 49 Haw. 1, 406 P.2d 887 (1965) (see also Geldert v. State, 3 Haw. App. 259, 649 P.2d 1165 (1982) decided after the adoption of comparative fault); Messmer v. Ker, 96 Idaho 75, 524 P.2d 536 (1974) (see also Salinas v. Vierstra, supra at Note 10, decided after the adoption of comparative fault); Rosenau v. City of Estherville, 199 N.W.2d 125 (Iowa 1972) (codified at Iowa Code Ann. § 619.17 (West 1987); Parker v. Redden, supra at Note 16; Felgner v. Anderson, 375 Mich. 23, 133 N.W.2d 136 (1965); Bolduc v. Crain, 104 N.H. 163, 181 A.2d 641 (1962); Meistrich v. Casino Arena Attractions, Inc., supra, at Note 4; Williamson v. Smith, 83 N.M. 336, 491 P.2d 1147 (1972) (see also Scott v. Rizzo, 96 N.M. 682, 634 P.2d 1234 (1981) decided after the adoption of comparative fault); McConville v. State Farm Mut. Auto. Ins. Co., 15 Wis.2d 374, 113 N.W.2d 14 (1962).

[22] Ariz.Rev.Stat. § 12-2505 (Supp. 1993); Ark. Code Ann. § 16-64-122(c) (Michie 1987); Conn. Gen. Stat. Ann. § 52-572h(c) (West Supp. 1989); Ind. Code Ann. § 34-4-33-2(a) (Burns 1986); Mass. Gen. Laws Ann. ch. 231, § 85 (West 1985); N.Y.C.P.L.R. § 1411 (McKinney 1976); N.D. Cent. Code § 9-10-06 (1987); Okla. Stat. Ann. tit. 23, § 12 (West 1987); Or.Rev.Stats. § 18.475(2) (1988); Utah Code Ann. § 78-27-37 (1987).

[23] Knight v. Jewett, 3 Cal.4th 296, 11 Cal. Rptr.2d 2, 834 P.2d 696 (1992); Brown v. Kreuser, 38 Colo. App. 554, 560 P.2d 105 (1977) (codified at Colo. Rev. Stat. Ann. § 13-21-111.7 (West 1988 & Supp. 1993)); Fell v. Zimath, 575 A.2d 267 (Del.Super. 1989); Blackburn v. Dorta, 348 So.2d 287 (Fla. 1977); Barrett v. Fritz, 42 Ill.2d 529, 248 N.E.2d 111 (1969); Jackson v. City of Kansas City, 235 Kan. 278, 680 P.2d 877 (1984); Murray v. Ramada Inns, Inc., 521 So.2d 1123 (La. 1988); Wilson v. Gordon, 354 A.2d 398 (Me. 1976); Springrose v. Willmore, 192 N.W.2d 826 (Minn. 1971) (codified at Minn. Stat. Ann. § 604.01(1a) (West 1988 & Supp. 1993)); Gustafson v. Benda, 661 S.W.2d 11 (Mo. 1983) (en banc); Kopischke v. First Continental Corp., 187 Mont. 471, 610 P.2d 668 (1980); Mizushima v. Sunset Ranch, Inc., supra at Note 10; Anderson v. Ceccardi, 6 Ohio St.3d 110, 6 O.B.R. 170, 451 N.E.2d 780 (1983) (codified at Ohio Rev.Code.Ann. § 2315.19(A)(2) (Anderson 1991); Rutter v. Northeastern Beaver Cty. Sch. Dist., 496 Pa. 590, 437 A.2d 1198, 1209 (1981) (plurality opinion); Farley v. M.M. Cattle Co., 529 S.W.2d 751 (Tex. 1975); Sunday v. Stratton Corp., 136 Vt. 293, 390 A.2d 398 (1978); Lyons v. Redding Const. Co., supra at Note 7 (codified at Wash. Rev. Code Ann. § 4.22.005 (West 1988)); King v. Kayak Mfg. Corp., 182 W. Va. 276, 387 S.E.2d 511 (1989); Brittain v. Booth, 601 P.2d 532 (Wyo. 1979). South Carolina has not addressed the role of assumption of risk since it judicially adopted comparative negligence in Nelson v. Concrete Supply Co., 303 S.C. 243, 399 S.E.2d 783 (1991).

[24] See e.g. Knight v. Jewett, supra at Note 24, 834 P.2d at 708; Anderson v. Ceccardi, supra, at Note 24, 451 N.E.2d at 783.

[25] See e.g. Blackburn v. Dorta, supra, at Note 24, 348 So.2d at 292; Salinas v. Vierstra, supra at Note 10, 695 P.2d at 374-75; Meistrich v. Casino Arena Attractions, Inc., supra, at Note 4, 155 A.2d at 96; McGrath v. American Cyanamid Co., 41 N.J. 272, 196 A.2d 238 (1963).

[26] Gustafson v. Benda, supra at Note 24, 661 S.W.2d at 15 (adopting the Uniform Comparative Fault Act which includes in its definition of fault to be compared, "unreasonable assumption of risk not constituting an enforceable express consent" U.C.F.A. § 1(b)); King v. Kayak Mfg. Corp., supra, at note 24, 387 S.E.2d at 517; Ark. Code Ann. § 16-64-122 (Michie 1987); Utah Code Ann. § 78-27-38 (1987).

[27] See e.g. Best, § 4.20[2][a] at 4-44; Prosser and Keeton § 68, at 480-84; Harper, James & Gray, § 21.8 at 259; Mutter, 57 Tenn.L.Rev. at 285; V. Schwartz, Comparative Negligence, § 9.1, at 154 (2d ed. 1986); H. Woods, Comparative Fault, § 6.1, at 131 (2d ed. 1987); Blackburn v. Dorta, supra at Note 24; Salinas v. Vierstra, supra at Note 10; Wilson v. Gordon, supra at Note 24; Farley v. M.M. Cattle Co., supra, at Note 24.

[28] Best, § 4.20[1][b][ii]; Mutter, 57 Tenn.L.Rev. at 285.

[29] Mutter, 57 Tenn.L.Rev. at 285.

[30] See e.g. Salinas v. Vierstra, supra at Note 10, 695 P.2d at 374; Williamson v. Smith, supra at Note 22, 491 P.2d at 1150; Rutter v. Northeastern Beaver Cty. Sch. Dist., supra at Note 24, 437 A.2d at 1200.

[31] Leavitt v. Gillaspie, supra at Note 22, 443 P.2d at 68; Brown v. Kreuser, supra at Note 24, 506 P.2d at 108; Blackburn v. Dorta, supra at Note 24, 348 So.2d at 293; Parker v. Redden, supra at Note 16, 421 S.W.2d at 592; Springrose v. Willmore, supra at Note 24, 192 N.W.2d at 828; Kopischke v. First Continental Corp., supra at Note 24, 610 P.2d at 687; Meistrich v. Casino Arena Attractions, Inc., supra at Note 4, 155 A.2d at 96; Jacobsen Const. v. Structo-Lite Engineering, 619 P.2d 306, 312 (Utah 1980); Brittain v. Booth, supra at Note 24, 601 P.2d at 534-35.

Law Offices of Christopher L. Otorowski, by Christopher L. Otorowski, for appellants.

487*487 Steven R. Meeks, for respondent Pacific West Mountain Resort.

Carney, Stephenson, Badley, Smith & Spellman, P.S., by David W. Bever and Ruth Nielsen, for respondents Connor, et al.

Bryan P. Harnetiaux, Gary N. Bloom, and Daniel E. Huntington on behalf of Washington State Trial Lawyers Association, amicus curiae for appellants.

Michael H. Runyan and Linda E. Blohm on behalf of Washington Defense Trial Lawyers, amicus curiae for respondents.

Christopher W. Moore on behalf of PNSAA, WSSI, PSIA/Northwest, PNSA-USSA, Seattle Ski Alliance, and PNSEF, amici curiae for respondents.

ANDERSEN, J.

FACTS OF CASE

Justin Scott and his parents appeal the dismissals of their tort claims against a ski resort and a ski school for injuries suffered by Justin in a skiing accident. The ski school's motion for summary judgment was granted based upon an exculpatory clause in the ski school application and the ski resort's motion for summary judgment was granted based upon a theory of implied assumption of risk.

[1] Since the trial courts dismissed the claims on summary judgment, the facts^[1] and all reasonable inferences therefrom are considered in a light most favorable to the plaintiffs as the nonmoving parties.^[2]

On March 11, 1989, 12-year-old Justin Scott sustained severe head injuries while skiing at a commercial ski resort 488*488 owned by Pacific West Mountain Resort (hereafter ski resort). Justin was a student of the privately owned Grayson Connor Ski School (hereafter ski school) which offered lessons at the ski resort.

At the time of his injury, Justin was attempting to ski on a slalom race course which had been laid out by the ski school owner, allegedly according to instructions from an agent of the ski resort.

Justin's mother, Barbara Scott, with Justin's father's knowledge and acquiescence, had filled out and signed an application for the ski school which included Justin's name, grade in school (sixth), years skied (2) and other personal information. She checked the boxes indicating Justin was an advanced skier and that he wished to purchase ski-racing lessons. The following language was included in the application:

For and in consideration of the instruction of skiing, I hereby hold harmless Grayson Connor, and the Grayson Connor Ski School and any instructor or chaperon from all claims arising out of the instruction of skiing or in transit to or from the ski area. I accept full responsibility for the cost of treatment for any injury suffered while taking part in the program.

Witnesses to the accident agreed Justin was practicing on the racecourse and that he missed one of the gates^[3] and left the course. One witness reported that as Justin left the course, he appeared to be turning uphill to avoid an unused tow-rope shack but was unable to do so and was ejected out of his skis and down into the depression under the shack. He was found unconscious underneath the shack wrapped around one of the shack's 12- by 12-inch supports, and had sustained severe head injuries.

The Scotts sued both the ski resort and the ski school alleging the racecourse had been improperly prepared and had been negligently placed too close to an unfenced tow-rope shack which was supported by exposed unpadded pillars. The exact distance between the shack and the racecourse 489*489 is disputed but there was evidence the shack was approximately 40 feet from the closest gate. Pacific West noted in its memorandum in support of summary judgment that the distance between the shack and the nearest gate was a matter of dispute, as is the distance between the shack and where Justin left the ski course. These, of course, are factual determinations which cannot be resolved on summary judgment. One expert witness' declaration opined that Justin would have traveled the short distance between the racecourse and the shed in approximately 2 seconds.

There is evidence that the snow adjacent to the racecourse had not been packed and was wet and heavy and more difficult to ski in than the packed snow in the racecourse.

The ski school moved for summary judgment on the basis that the exculpatory clause in the ski school application, signed by Justin's mother, relieved the school from any liability for its own negligence. The trial judge granted that motion and dismissed the claims against the ski school.

The ski resort moved for summary judgment on the ground that Justin had "assumed the risk" and was thus barred from recovery in a negligence action against the ski resort. The trial judge granted that motion and dismissed the claims against the ski resort.

Petitions for direct review were granted by this court.

ISSUES REGARDING SKI SCHOOL'S DISMISSAL

ISSUE ONE. Was the language of the purported exculpatory clause sufficiently clear to release the ski school for negligent conduct?

ISSUE TWO. May a parent legally waive a child's future potential cause of action for personal injuries resulting from a third party's negligence?

ISSUES REGARDING SKI RESORT'S DISMISSAL

ISSUE THREE. Subsequent to the adoption of comparative negligence, does the doctrine of primary implied assumption of risk act to bar recovery or only to reduce damages?

490*490 ISSUE FOUR. Under the facts of this case, did the trial court properly apply the doctrine of primary implied assumption of risk as a complete bar to plaintiff's recovery?

DECISION

ISSUE ONE.

CONCLUSION. We conclude that the language of the purported exculpatory clause contained in the ski school application was sufficiently clear to give notice that the ski school was attempting to be released from liability for its negligent conduct.

[2-5] Exculpatory clauses are strictly construed and must be clear if the exemption from liability is to be enforced.^[4] The sufficiency of the language to effect a release is generally a question of law.^[5]

Some cases and commentators have declared that a clause will not be construed to include an exemption for negligence unless it includes the word "negligence" or language with similar import.^[6] However, many courts have held that clear and unambiguous exculpatory language can eliminate negligence liability without expressly using the word "negligence".^[7] Two Washington Court of Appeals cases have also held that the word "negligence" is not essential to 491*491 the effectiveness of an express release.^[8] We agree. Courts should use common sense in interpreting purported releases,^[9] and the language "hold harmless ... from all claims" logically includes negligent conduct. One does not have a "claim" to be "held harmless" from unless there is a basis for liability. The language of the exculpatory clause shows the parties' intent to shift the risk of loss. The second sentence stating that the parents of the skier "accept full responsibility for the cost of treatment for any injury" supports this conclusion.

Plaintiffs also argue that the hold harmless language is more "indemnity" language than "release" language and therefore should not be sufficient to serve as an exculpatory clause. However, indemnity agreements are "closely akin" to releases.^[10] The court in O'Connell v. Walt Disney World Co., 413 So.2d 444, 446 (Fla. Dist. Ct. App. 1982) explained that although there is a distinction in definition between exculpatory clauses and indemnity clauses, in these settings they both attempt to shift ultimate responsibility for negligence and so are generally construed by the same principles of law. An exculpatory clause purports to deny an injured party the right to recover damages from the person negligently causing the injury. An indemnification clause attempts to shift responsibility for the payment of damages to someone other than the negligent party, usually back to the injured party, thus likely producing the same result as an exculpatory clause.

Thus, in this case the fact that the application uses the words "hold harmless" rather than the word "release" does not significantly impact the issue of whether the effect was to exculpate the ski school from liability for its own negligence.

492*492 Plaintiffs also argue that the claim was one not "arising out of the instruction of skiing" because it was caused by the ski instructor's placement of the racecourse too close to the shed. However, it is clear from the application form that these were ski racing lessons; a racecourse would therefore be an integral part of teaching ski racing. This argument is factually strained and unconvincing.

We conclude that to the extent the release is otherwise legally valid the language of the exculpatory clause was sufficiently clear to release the ski school from liability for negligent conduct. We therefore must reach the legal issue regarding parents' authority to release not only their own claims but also the potential future claim belonging to a child.

ISSUE TWO.

CONCLUSION. A parent does not have legal authority to waive a child's own future cause of action for personal injuries resulting from a third party's negligence.

[6] The general rule in Washington is that exculpatory clauses are enforceable unless (1) they violate public policy, or (2) the negligent act falls greatly below the standard established by law for protection of others or (3) they are inconspicuous.^[11] In the present case, there is no allegation that the conduct fell below that of ordinary negligence or that the language was inconspicuous or unwittingly signed. The issue is whether this release violates public policy.

Whether exculpatory clauses signed by parents which bar a child's cause of action for injuries sustained due to negligence violate public policy is a question of first impression in Washington.

Washington cases have upheld exculpatory clauses in favor of private parties in various high risk sports-related situations.^[12] However, in none of these cases did a release 493*493 signed by a parent purport to release a potential defendant from liability for negligent injury to a child. Although we adhere to prior Washington law that an adult sports participant can waive liability for another's negligence, we consider this a very different question than whether parents can release another for negligence which injures their child.

The ski school argues that our recent opinion in Wagenblast v. Odessa Sch. Dist. XXX-XXX-XXXJ, 110 Wn.2d 845, 758 P.2d 968, 85 A.L.R.4th 331 (1988) impliedly holds that exculpatory releases can be enforced to bar a child's cause of action when a release is signed by a parent. That is incorrect. In Wagenblast, we decided that it violated public policy to enforce releases (signed by students and their parents) which released school districts from their negligence during public school athletics. Since the releases were struck down on other grounds, it was unnecessary in Wagenblast to answer the question whether parents have the authority to release a third party for future negligent injury to their child. Hence this issue was not decided, impliedly or otherwise, in Wagenblast. While upholding some exculpatory clauses, we have also held some kinds of exculpatory clauses to be violative of public policy and therefore unenforceable.^[13] There are instances where public policy reasons for preserving an obligation of care owed by one person to another outweigh our traditional regard for freedom of contract.^[14] In deciding the particular issue before the courts, it is helpful to look to the analogous situation where parents seek to release their child's cause of action for injuries already sustained. The ski school argues that since Washington law allows a parent to sue on behalf of the child, it also should allow a parent to release a cause of action.

494*494 Contrary to the ski school's argument, it is settled law in many jurisdictions that, absent judicial or statutory authority, parents have no authority to release a cause of action belonging to their child.^[15] Courts often hold that in a postinjury setting a parent's signature on a release is ineffective to bar a minor's claims against a negligent party.^[16] Washington law is in accord. Under Washington law parents may not settle or release a child's claim without prior court approval.^[17] Further, in any settlement of a minor's claim, Washington law provides that a guardian ad litem must be appointed (unless independent counsel represents the child) and a hearing held to approve the settlement.^[18]

[7] Since a parent generally may not release a child's cause of action after injury, it makes little, if any, sense to conclude a parent has the authority to release a child's cause of action prior to an injury. In situations where parents are unwilling or unable to provide for a seriously injured child, the child would have no recourse against a negligent party to acquire resources needed for care and this is true regardless of when relinquishment of the child's rights might occur.

Numerous cases in other jurisdictions have considered the validity of preinjury releases signed by a parent and concluded that such releases do not bar the child's cause of action for personal injuries.^[19] We agree with this view.

495*495 Amici Washington Defense Trial Lawyers and various ski organizations argue that the invalidation of releases signed by parents to bar children's claims would make sports engaged in by minors prohibitively expensive due to insurance costs. While this is a valid concern, the same argument was made and rejected in Wagenblast. Indeed, the same argument can be made in many areas of tort law, e.g., provision of medical or legal services. No legally sound reason is advanced for removing children's athletics from the normal tort system.

[8] We hold that to the extent a parent's release of a third party's liability for negligence purports to bar a child's own cause of action, it violates public policy and is unenforceable. However, an otherwise conspicuous and clear exculpatory clause can serve to bar the parents' cause of action based upon injury to their child. Therefore, we hold that Justin's parents' cause of action is barred by the release; Justin's own cause of action is not barred.

ISSUE THREE.

CONCLUSION. Primary implied assumption of risk continues as a complete bar to recovery after the adoption of comparative negligence laws.

496*496 The entire doctrine of "assumption of risk" is surrounded by much confusion,^[20] and has been improperly applied in many ski accident cases.^[21] This is partially because at common law both assumption of risk and contributory negligence operated as total bars to recovery.^[22] Therefore, it was formerly not critical that the two concepts be carefully distinguished. With the enactment of the comparative negligence and comparative fault statutes, it became essential to separate the various kinds of assumption of risk to distinguish between the kinds that shift the defendant's duty to the plaintiff (and hence bar the claim) and the types which are essentially contributory negligence (and hence simply reduce damages).

Under the traditional Prosser and Keeton analysis, the assumption of risk doctrine is divided into four classifications: (1) express; (2) implied primary; (3) implied reasonable; and (4) implied unreasonable. Shorter v. Drury, 103 Wn.2d 645, 655, 695 P.2d 116, cert. denied, 474 U.S. 827 (1985).

Express assumption occurs when parties agree in advance that one of them is under no obligation to use reasonable care for the benefit of the other and will not be liable for what would otherwise be negligence. When such a plaintiff is injured by one of the risks for which he or she has agreed to forgo suit, the claim will be barred because that risk was assumed by the plaintiff.^[23] The bar of express assumption is based on contract and survives the enactment of comparative negligence statutes.^[24] However, such 497*497 assumption only bars a claim with regard to the risks actually assumed by the plaintiff.^[25]

[9] Implied primary assumption of risk arises where a plaintiff has impliedly consented (often in advance of any negligence by defendant) to relieve defendant of a duty to plaintiff regarding specific known and appreciated risks.^[26] It is important to carefully define the scope of the assumption, i.e., what risks were impliedly assumed and which remain as a potential basis for liability. It is this type of assumption of risk which was the basis for the grant of summary judgment in favor of the ski resort operator.

As discussed in the next issue, the last two types of assumption of risk (which involve the plaintiff's voluntary choice to encounter a risk created by the defendant's negligence) retain no independent significance from contributory negligence after the adoption of comparative negligence.

Washington case law is somewhat confusing on the issue whether subsequent to the adoption of comparative negligence "primary implied assumption of risk" acts as a complete bar to recovery or only acts as a damage-reducing factor.

[10, 11] A number of Washington cases are in agreement with Dean Prosser, that primary implied assumption of the risk remains a complete bar to recovery.^[27] This is because primary assumption occurs when the plaintiff has impliedly consented to assume a duty. If the defendant does not have the duty, there can be no breach and hence no negligence.^[28] 498*498 A classic example of primary assumption of risk occurs in sports cases. One who participates in sports "assumes the risks" which are inherent in the sport. To the extent a plaintiff is injured as a result of a risk inherent in the sport, the defendant has no duty and there is no negligence. Therefore, that type of assumption acts as a complete bar to recovery.^[29] The doctrine of primary implied assumption of the risk can perhaps more accurately be described as a way to define a defendant's duty.^[30] A defendant simply does not have a duty to protect a sports participant from dangers which are an inherent and normal part of a sport.

In Kirk v. WSU, 109 Wn.2d 448, 746 P.2d 285 (1987), a college cheerleader sued her university to recover for injuries sustained while she was practicing cheerleading allegedly under dangerous conditions and without adequate supervision. The university argued her claim was barred because she had assumed the risks inherent in the sport. This court explained that the basis of both express and implied primary assumption of risk was the plaintiff's consent to the negation of defendant's duty with regard to those risks assumed. Since implied primary assumption of the risk negates duty, it acts as a bar to recovery when the injury results from one of the risks assumed. As Dean Prosser explains, primary implied assumption of risk should continue to be an absolute bar after the adoption of comparative fault because in this form it is a principle of "no duty" and hence no negligence, thus negating the existence of any underlying cause of action.^[31]

Although the plaintiff in Kirk did assume the risks inherent in the sport of cheerleading, she did not assume the risks caused by the university's negligent provision of dangerous facilities or improper instruction or supervision. Those were 499*499 not risks "inherent" in the sport. Hence, in a primary sense, she did not "assume the risk" and relieve defendants of those duties. However, to the extent she continued to practice (on a dangerous surface, without instruction), she may have "unreasonably assumed the risk" i.e., have been contributorially negligent. This unreasonable assumption of the risk is assumption in the secondary sense which does not bar all recovery.

In Leyendecker v. Cousins, 53 Wn. App. 769, 773-74, 770 P.2d 675, review denied, 113 Wn.2d 1018 (1989), the Court of Appeals correctly explained

that those who choose to participate in sports or amusements consent to being injured by the risks inherent in the activity, and that such conduct constitutes "primary" assumption of risk, which continues as a complete bar to recovery even after the adoption of comparative negligence....

...

In contrast, implied reasonable and unreasonable assumption of risk arise where the plaintiff is aware of a risk that already has been created by the negligence of the defendant, yet chooses voluntarily to encounter it. In such a case, plaintiff's conduct is not truly consensual, but is a form of contributory negligence, in which the negligence consists of making the wrong choice and voluntarily encountering a known unreasonable risk.

(Citations omitted.)

We now apply these principles of law to the present case.

ISSUE FOUR.

CONCLUSION. Under the facts presented, the trial court should not have applied the doctrine of primary implied assumption of risk as a complete bar to plaintiff's recovery against the ski resort operator.

To reiterate, the two defendants obtained summary judgment in their favor based upon two different legal theories. As to the ski school, its dismissal was based upon the express release language in the application. However, with regard to the ski resort operator, there was no release (express assumption of the risk) and hence the question becomes what risks Justin impliedly assumed by choosing to engage in the sport of skiing.

500*500 To determine whether summary judgment was properly granted to the ski resort operator, it is essential to define what duties the ski resort owed to Justin and what risks were assumed by Justin.

[12] A skier is a business invitee of the ski area operator.^[32] The operator owes a duty to a skier to discover dangerous conditions through reasonable inspection, and repair that condition or warn the invitees, unless it is known or obvious.^[33] Washington statutory law, RCW 70.117, modifies but is generally consistent with the common law.^[34] This state's ski statute imposes certain duties on skiers and on ski operators but does not purport to relieve ski operators from all liability for their own negligence.^[35]

The resort argues that it owed no duty to Justin because the shed was an obvious hazard. This issue cannot be decided on summary judgment as this factual inquiry is disputed. Justin has no recollection of the accident but there was evidence in a declaration from a witness that the proximity of the racecourse to the shed could not be determined at the start of the course, the transition from the packed snow of the racecourse to the wet, heavy, unpacked snow immediately adjacent to the course was not obvious and that one could not see or recognize the danger of the depression under the shack or the hazard it presented. An expert's declaration stated that from the top of the course Justin could not have appreciated the danger posed by the proximity of the course to the shed.

As in many sports settings, a skier does impliedly assume certain risks by engaging in the sport.^[36] Implied primary 501*501 assumption of the risk means the plaintiff assumes the dangers that are inherent in and necessary to the particular sport or activity.

Since Justin assumed the risks inherent in the sport of skiing, the issue is whether all the risks which caused his injuries were inherent in the sport.

[13] There are ski cases in other jurisdictions which reach differing results as to whether a skier assumes the risk of collision with a fixed object in the ski trail.^[37] However, the evidence in the instant case was not just that Justin collided with an obvious stationary object because of difficult snow conditions. An accident resulting from such conditions would ordinarily be due to risks "inherent" in the sport of skiing. However, in this case, some of the evidence would support a conclusion that the racecourse was laid out in an unnecessarily dangerous manner that was not obvious to a young novice ski-racing student. While participants in sports are generally held to have impliedly assumed the risks inherent in the sport, such assumption of risk does not preclude a recovery for negligent acts which unduly enhance such risks.^[38] Review of analogous cases is helpful in this situation.

In Marietta v. Cliffs Ridge, Inc., 385 Mich. 364, 373, 189 N.W.2d 208 (1971), the court held that it was a question of fact to be left to the jury whether a ski facility was negligent in using 1 1/2-inch sapling poles as slalom gate markers rather than bamboo or fiber glass poles.

In Ashcroft v. Calder Race Course, Inc., 492 So.2d 1309 (Fla. 1986), a jockey was injured when thrown from his horse which had veered across a racecourse out of control toward an exit gap, the negligent placement of which was 502*502 found to be the cause of the accident. The court said the jockey's assumption of risk waived only risks inherent in the sport itself. Riding on a racetrack with a negligently placed exit gap was not an inherent risk in the sport and it was error for the judge to instruct the jury on assumption of risk.

In Jessup v. Mt. Bachelor, Inc., 101 Or. App. 670, 792 P.2d 1232, review denied, 310 Or. 475 (1990), the Oregon court recently explained that a skier is barred from recovery from a ski area operator for injury caused solely by the inherent risks of skiing, but if the injury was caused by a combination of the inherent risks of skiing and operator negligence, the doctrine of comparative fault applies.

[14] These cases illustrate the proposition that primary assumption of the risk in a sports setting does not include the failure of the operator to provide reasonably safe facilities.^[39] Here, there is evidence that could support a finding that the racecourse for beginning racers was placed dangerously close to an unfenced, unpadded, abandoned shed. We therefore conclude that summary judgment was improperly granted.

[15, 16] Summary judgment is appropriate only if:

the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

CR 56(c). In such cases facts and all reasonable inferences therefrom must be considered in the light most favorable to the nonmoving party, and summary judgment should be granted only if, from all the evidence, reasonable persons could reach but one conclusion.^[40] The burden is on the 503*503 moving party to demonstrate that there is no issue as to a material fact, and the moving party is held to a strict standard.^[41] Since the plaintiff's evidence raised genuine issues of material fact with regard to whether the defendants acted negligently and whether such negligence, if any, was a proximate cause of the injuries, these issues are not properly decided on summary judgment.

In sum, Justin did assume the risks inherent in the sport (primary assumption of risk) but he did not assume the alleged negligence of the operator. He may nonetheless have been contributorially negligent (i.e., in the secondary sense he may have assumed some risk). However, the doctrine of unreasonable assumption of the risk has been subsumed in comparative negligence law.^[42] Any such contributory negligence would reduce, rather than bar, Justin's recovery; this issue remains to be resolved at trial. The issue of contributory negligence for minors from 6 to 16 years of age is generally a question for the trier of fact.^[43] Washington recognizes a special standard of care applicable to children; a child's conduct is measured by the conduct of a reasonably careful child of the same age, intelligence, maturity, training and experience.^[44]

Accordingly, we reverse the summary judgment in favor of the ski resort operator and remand to the trial court for further proceedings consistent with this opinion. As to the summary judgment in favor of the ski school, we affirm the 504*504 dismissal of the parents' cause of action, but reverse and remand with regard to Justin's own cause of action.

DORE, C.J., and BRACHTENBACH, DOLLIVER, DURHAM, SMITH, GUY, and JOHNSON, JJ., concur.

[1] Although different facts were submitted during the two separate motions for summary judgment by the ski school and the ski resort, the facts have herein been combined for ease of reading. However, for purposes of legal analysis, only the facts that were before the respective trial courts were considered in the issues relating to the different defendants.

[2] Young v. Key Pharmaceuticals, Inc., 112 Wn.2d 216, 226, 770 P.2d 182 (1989).

[3] A gate is a lightweight pole or poles inserted into the snow around which a slalom skier must go in descending the race course.

[4] 1 S. Speiser, C. Krause & A. Gans, American Law of Torts § 5:39, at 1101-03 (1983).

[5] 1 S. Speiser, C. Krause & A. Gans, at 1102; Blide v. Rainier Mountaineering, Inc., 30 Wn. App. 571, 574, 636 P.2d 492 (1981), review denied, 96 Wn.2d 1027 (1982).

[6] E.g., W. Keeton, D. Dobbs, R. Keeton & D. Owen, Prosser and Keeton on Torts § 68, at 484 (5th ed. 1984); O'Connell v. Walt Disney World Co., 413 So.2d 444, 447 (Fla. Dist. Ct. App. 1982); Rosen v. LTV Recreational Dev., Inc., 569 F.2d 1117, 1122 (10th Cir.1978).

[7] See, e.g., Boehm v. Cody Country Chamber of Commerce, 748 P.2d 704, 711 (Wyo. 1987) (the language "hold harmless and release ... all claims" sufficient to release for negligence); Weiner v. Mt. Airy Lodge, Inc., 719 F. Supp. 342, 345 (M.D. Pa. 1989) ("[T]o say that negligent conduct is not included in `any liability' is patently incorrect."). 1 S. Speiser, C. Krause & A. Gans, Torts § 5:39, at 1089 (1983) (even though preinjury release does not refer to "negligence", where the hazard is within the contemplation of the release, the word is not essential).

[8] Hewitt v. Miller, 11 Wn. App. 72, 79, 521 P.2d 244, review denied, 84 Wn.2d 1007 (1974); Blide, 30 Wn. App. at 574.

[9] Weiner, 719 F. Supp. at 345.

[10] 1 S. Speiser, C. Krause & A. Gans § 5:39, at 1103; 57A Am.Jur.2d Negligence § 51, at 108 (1989).

[11] Wagenblast v. Odessa Sch. Dist. XXX-XXX-XXXJ, 110 Wn.2d 845, 856, 758 P.2d 968, 85 A.L.R.4th 331 (1988); McCutcheon v. United Homes Corp., 79 Wn.2d 443, 486 P.2d 1093 (1971); Blide v. Rainier Mountaineering, Inc., supra; Shorter v. Drury, 103 Wn.2d 645, 695 P.2d 116, cert. denied, 474 U.S. 827 (1985); Baker v. Seattle, 79 Wn.2d 198, 484 P.2d 405 (1971).

[12] E.g., Conradt v. Four Star Promotions, Inc., 45 Wn. App. 847, 728 P.2d 617 (1986); Blide v. Rainier Mountaineering, Inc., supra; Hewitt v. Miller, supra. See also Garretson v. United States, 456 F.2d 1017 (9th Cir.1972).

[13] McCutcheon v. United Homes Corp., supra (releases for negligence void in residential landlord-tenant setting); Thomas v. Housing Auth., 71 Wn.2d 69, 426 P.2d 836 (1967) (voiding provision exculpating a public housing authority from liability for negligence); Wagenblast v. Odessa Sch. Dist. XXX-XXX-XXXJ, supra (invalidating exculpatory clauses releasing public schools for liability for injuries sustained by students in interscholastic athletics).

[14] Wagenblast, 110 Wn.2d at 849.

[15] See 59 Am.Jur.2d Parent and Child § 40, at 183 (1987); 67A C.J.S. Parent and Child § 114, at 469 (1978).

[16] See, e.g., Castro v. Boulevard Hosp., 106 A.D.2d 539, 483 N.Y.S.2d 65 (1984); Whitcomb v. Dancer, 140 Vt. 580, 443 A.2d 458 (1982); Colfer v. Royal Globe Ins. Co., 214 N.J. Super. 374, 519 A.2d 893 (1986).

[17] SPR 98.16W; 4A L. Orland & K. Tegland, Wash. Prac., Rules Practice § 6081, at 53-57 (4th ed. 1990).

[18] SPR 98.16W.

[19] Fedor v. Mauwehu Coun., Boy Scouts of Am., Inc., 21 Conn. Supp. 38, 143 A.2d 466 (1958) (a release signed by a parent waiving future claims for injury violates public policy, and is ineffective to bar minor's negligence claim); Childress v. Madison Cy., 777 S.W.2d 1 (Tenn. Ct. App. 1989) (mother cannot execute a valid release or exculpatory clause as to the rights of her son and such release is void as to the son's rights although valid to waive the mother's claim). Accord, Rogers v. Donelson-Hermitage Chamber of Commerce, 807 S.W.2d 242 (Tenn. Ct. App. 1990); Doyle v. Bowdoin College, 403 A.2d 1206, 1208 n. 3 (Me. 1979) (releases signed by parent prior to son being injured playing hockey were void as a parent cannot release a child's cause of action) (citing Stockman v. South Portland, 147 Me. 376, 383, 87 A.2d 679 (1952)). See also International Union, UAW v. Johnson Controls, Inc., 499 U.S. 187, 213, 113 L.Ed.2d 158, 111 S.Ct. 1196, 1211 (1991) (White, J., concurring) (stating the general rule that parents cannot waive causes of action on behalf of their children). See Fitzgerald v. Newark Morning Ledger Co., 111 N.J. Super. 104, 267 A.2d 557 (1970). See also R. Kaiser, Liability and Law in Recreation, Parks, and Sports 84 (1986) (releases are invalid when minors or their parents sign the release as it is generally accepted a parent can surrender his or her future tort claim, but may not surrender the independent claim of a minor child). But see Hohe v. San Diego Unified Sch. Dist., 224 Cal. App.3d 1559, 1565, 274 Cal. Rptr. 647 (1990) (parent can contract for a child). However, Hohe relies only on a case which allowed a parent to bind a child to the arbitration forum.

[20] W. Keeton, D. Dobbs, R. Keeton & D. Owen, Prosser and Keeton on Torts § 68, at 480-84 (5th ed. 1984); see Annot., Effect of Adoption of Comparative Negligence Rules on Assumption of Risk, 16 A.L.R.4th 700 (1982).

[21] Note, Ski Operators and Skiers — Responsibility and Liability, 14 New Eng. L.R. 260, 262 (1978-1979).

[22] ITT Rayonier, Inc. v. Puget Sound Freight Lines, 44 Wn. App. 368, 374, 722 P.2d 1310 (1986).

[23] V. Schwartz, Comparative Negligence § 9.2, at 157-58 (2d ed. 1986); W. Keeton, D. Dobbs, R. Keeton & D. Owen § 68, at 482-84.

[24] Shorter v. Drury, 103 Wn.2d 645, 656, 695 P.2d 116, cert. denied, 474 U.S. 827 (1985); Leyendecker v. Cousins, 53 Wn. App. 769, 773, 770 P.2d 675, review denied, 113 Wn.2d 1018 (1989); W. Keeton, D. Dobbs, R. Keeton & D. Owen § 68, at 496; ITT Rayonier, 44 Wn. App. at 376 n. 5.

[25] See Shorter, 103 Wn.2d at 655-58.

[26] Kirk v. WSU, 109 Wn.2d 448, 453, 746 P.2d 285 (1987) (citing W. Keeton, D. Dobbs, R. Keeton & D. Owen, Prosser and Keeton on Torts 496 (5th ed. 1984)).

[27] Ridge v. Kladnick, 42 Wn. App. 785, 788, 713 P.2d 1131, review denied, 106 Wn.2d 1011 (1986); ITT Rayonier, 44 Wn. App. at 376 n. 5; Codd v. Stevens Pass, Inc., 45 Wn. App. 393, 402, 725 P.2d 1008 (1986), review denied, 107 Wn.2d 1020 (1987); Leyendecker, 53 Wn. App. at 774.

[28] W. Keeton, D. Dobbs, R. Keeton & D. Owen § 68, at 496-97.

[29] See, e.g., Ridge v. Kladnick, supra; ITT Rayonier, Inc. v. Puget Sound Freight Lines, supra; Codd v. Stevens Pass, Inc., supra; Leyendecker v. Cousins, supra.

[30] 4 F. Harper, F. James & O. Gray, Torts § 21.0, at 188-89 (2d ed. 1986) ("In its primary sense the plaintiff's assumption of a risk is only the counterpart of the defendant's lack of duty to protect the plaintiff from that risk.").

[31] W. Keeton, D. Dobbs, R. Keeton & D. Owen § 68, at 496.

[32] Codd, 45 Wn. App. at 396-97; Egede-Nissen v. Crystal Mt., Inc., 93 Wn.2d 127, 132, 606 P.2d 1214 (1980).

[33] Codd, 45 Wn. App. at 397; Egede-Nissen, 93 Wn.2d at 132.

[34] Codd, 45 Wn. App. at 397.

[35] RCW 70.117.040; RCW 70.117.020(4).

[36] See, e.g., Codd, 45 Wn. App. at 401; Wagenblast v. Odessa Sch. Dist. XXX-XXX-XXXJ, 110 Wn.2d 845, 857, 758 P.2d 968, 85 A.L.R.4th 331 (1988); Kirk, 109 Wn.2d at 456.

[37] Compare, e.g., Smith v. Seven Springs Farm, Inc., 716 F.2d 1002 (3d Cir.1983) and Leopold v. Okemo Mt., Inc., 420 F. Supp. 781 (D. Vt. 1976) with Rosen v. LTV Recreational Dev., Inc., 569 F.2d 1117 (10th Cir.1978) and Sunday v. Stratton Corp., 136 Vt. 293, 390 A.2d 398 (1978).

[38] Wood v. Postelthwaite, 6 Wn. App. 885, 896, 496 P.2d 988 (1972), aff'd, 82 Wn.2d 387, 510 P.2d 1109 (1973); Kirk v. WSU, 109 Wn.2d 448, 456, 746 P.2d 285 (1987); Ridge v. Kladnick, 42 Wn. App. 785, 788, 713 P.2d 1131, review denied 106 Wn.2d 1011 (1986).

[39] F. Harper, F. James & O. Gray, Torts § 21.0, at 435 (2d ed. Cum. Supp. No. 2, 1991); Kirk v. WSU, supra. See also Hiibschman v. Valdez, 821 P.2d 1354 (Alaska 1991).

[40] Marincovich v. Tarabochia, 114 Wn.2d 271, 274, 787 P.2d 562 (1990); Glesener v. Balholm, 50 Wn. App. 1, 7, 747 P.2d 475 (1987).

[41] Atherton Condominium Apartment-Owners Ass'n Bd. of Directors v. Blume Dev. Co., 115 Wn.2d 506, 516, 799 P.2d 250 (1990).

[42] Kirk, 109 Wn.2d at 454; Ridge, 42 Wn. App. at 787; Leyendecker v. Cousins, 53 Wn. App. 769, 774 n. 2, 770 P.2d 675, review denied, 113 Wn.2d 1018 (1989); RCW 4.22.015 (unreasonable assumption of risk is included in the concept of fault).

[43] Hansen v. Friend, 118 Wn.2d 476, 484, 824 P.2d 483 (1992); Bauman v. Crawford, 104 Wn.2d 241, 244, 704 P.2d 1181 (1985).

[44] Bauman, 104 Wn.2d at 244.