Mr. Justice Schaeper

delivered the opinion of the court:

This is an action to recover for injuries allegedly caused by the defendant’s negligence in maintaining and operating a large apartment building. Mrs. Ella O’Callaghan, a tenant in the building, was injured when she fell while crossing the paved courtyard on her way from the garage to her apartment. She instituted this action to recover for her injuries, alleging that they were caused by defective pavement in the courtyard^ Before the case was tried, Mrs. O’Callaghan died and her administratrix was substituted as plaintiff. The jury returned a verdict for the plaintiff in the sum of $14,000, and judgment was entered on the verdict. Defendant appealed. The Appellate Court held that the action was barred by an exculpatory clause in the lease that Mrs. O’Callaghan had signed, and that a verdict should have been directed for the defendant. (15 Ill. App. 2d 349.) It therefore reversed the judgment and remanded the cause with directions to enter judgment for the defendant. We granted leave to appeal.

In reaching its conclusion the Appellate Court relied upon our recent decision in Jackson v. First National Bank, 415 Ill. 453. There we considered the validity of such an exculpatory clause in a lease of property for business purposes. We pointed out that contracts by which one seeks to relieve himself from the consequences of his own negligence are generally enforced “unless (1) it would be against the settled public policy of the State to do so, or (2) there is something in the social relationship of the parties militating against upholding the agreement.” (415 Ill. at 460.) And we held that there was nothing in the public policy of *438the State or in the social relationship of the parties to forbid enforcement of the exculpatory clause there involved.

The exculpatory clause in the lease now before us clearly purports to relieve the lessor and its agents from any liability to the lessee for personal injuries or property damage caused by any act or neglect of the lessor or its agents. It does not appear to be amenable to the strict construction to which such clauses are frequently subjected. (See 175 A.L.R. 8, 89.) The plaintiff does not question its applicability, and she concedes that if it is valid it bars her recovery. She argues vigorously, however, that such a clause is contrary to public policy, and so invalid, in a lease of residential property.

Freedom of contract is basic to our law. But when that freedom expresses itself in a provision designed to absolve one of the parties from the consequences of his own negligence, there is danger that the standards of conduct which the law hasjdeveloped for the protection of others may be diluted. , These competing considerations have produced results that are not completely consistent. This court has refused to enforce contracts exculpating or limiting liability for negligence between common carriers and shippers of freight or paying passengers, (Chicago and Northwestern Railway Co. v. Chapman, 133 Ill. 96,) between telegraph companies and those sending messages, (Tyler, Ullman & Co. v. Western Union Telegraph Co. 60 Ill. 421,) and between masters and servants, (Campbell v. Chicago, Rock Island and Pacific Railway Co. 243 Ill. 620.) The obvious public interest in these relationships, coupled with the dominant position of those seeking exculpation, were compelling considerations in these decisions, which are in accord with similar results in other jurisdictions. See 175 A.L.R. 8.

On the other hand, as pointed out in tht'-Ias-kson^^ase, the relation of lessor and lessee has been considered a matter of private concern. Clauses-that exculpate the land-lord-fre-m *439the consequences of his negligence have been sustained in residential as well as commercial leases. (Manaster v. Gopin, 330 Mass. 569 (1953), 116 N.E.2d 134; Mackenzie v. Ryan, 230 Minn. 378 (1950), 41 N.W.2d 878; Kirshenbaum v. General Outdoor Adv. Co. 258 N.Y. 489 (1932), 180 N.E. 245; King v. Smith, 47 Ga. App. 360 (1933), 170 S.E. 546; Wright v. Sterling Land Co. 157 Pa. Super. 625 (1945), 43 A.2d 614; 6 Williston on Contracts, sec. 1715D; 6 Corbin on Contracts, sec. 1472.) There are intimations in other jurisdictions that run counter to the current authority. (See Kuzmiak v. Brookchester, Inc. 33 N.J. Super. 575 (1955), III A.2d 425; Kay v. Cain (App. D.C. 1946), 154 E.2d 305.) The New Hampshire court applies to exculpatory clauses in all leases its uniform rule that any attempt to contract against liability for negligence is contrary to public policy. (Papakalos v. Shaka, 91 N.H. 265 (1941), 18 A.2d 377.) But apart from the Papakalos case we know of no court of last resort that has held such clauses invalid in the absence of a statute so requiring.

A contract shifting the risk of liability for negligence may benefit a tenant as well as a landlord. ( See Cerny-Pickas & Co. v. C. R. Jahn Co. 7 Ill.2d 393.) ! Such an agreement transfers the risk of a possible financial burden and so lessens the impact of the sanctions that induce adherence to the required standard of care. But this consideration is applicable as well to contracts for insurance that indemnify against liability for one’s own negligence. Such contracts are accepted, and even encouraged. ¡ See Ill. Rev. Stat. 1957, chap. 953/2, pars. 7 — 202(1) and 7 — 315.Í

The plaintiff contends that due to a shortage of housing there is a disparity of bargaining power between lessors of residential property and their lessees that gives landlords an unconscionable advantage over tenants. And upon this ground it is said that exculpatory clauses jn residential leases must be held to be contrary to public pol/cy. No attempt was made upon the trial to show that Mrs. O’Callaghan was at *440all concerned about the exculpatory clause, that she tried to negotiate with the defendant about its modification or elimination, or that she made any effort to rent an apartment elsewhere. To establish the existence of a widespread housing shortage the plaintiff points to numerous statutes designed to alleviate the shortage, (see Ill. Rev. Stat. 1957, chap. 6jt/2, passim) and to the existence of rent control during the period of the lease. 65 Stat. 145 (1947), 50 append. U.S.C., sec. 1894.

Unquestionably there has been a housing shortage. That shortage has produced an active and varied legislative response. Since legislative attention has been so sharply focused upon housing problems in recent years, it might be assumed that the legislature has taken all of the remedial action that it thought necessary or desirable. One of the major- legislative responses was the adoption of rent controls which placed ceilings upon the amount of rent that landlords could charge. But the very existence of that control made it impossible for a lessor to negotiate for an increased rental in exchange for the elimination of an exculpatory clause. We are asked to assume, however, that the legislative response to the housing shortage has been inadequate and incomplete, and to augment it judicially.

The relationship of landlord and tenant does not have the monopolistic characteristics that have characterized some other relations with respect to which exculpatory clauses have been held invalid. There are literally thousands of landlords who are in competition with one another. The rental market affords a variety of competing types of housing accommodations, from simple farm house to- luxurious apartment. The use of a form contract does not of itself establish disparity of bargaining power. That there is a shortage of housing at one particular time or place does not indicate that such shortages have always and everywhere existed, or that there will be shortages in the future. Judicial determinations of public policy cannot readily take account *441of sporadic and transitory circumstances. They should rather, we think, rest upon a durable moral basis. Other jurisdictions have dealt with this problem by legislation. (McKinney’s Consol. Laws of N.Y. Ann., Real Property Laws, sec, 234, Vol. 49, Part I; Ann. Laws of Mass., Vol. 6, c. 186, sec. 15.) In our opinion the subject is one that is appropriate for legislative rather than judicial action.

The judgment of the Appellate Court is affirmed.

Judgment affirmed.

Bristow, J., and Dairy, C.J.,

dissenting:

We cannot accept the conclusions and analysis of the majority opinion, which in our judgment not only arbitrarily eliminates the concept of negligence in the landlord and tenant relationship, but creates anomalies in the law, and will produce grievous social consequences for hundreds of thousands of persons in this State.

According to the undisputed facts in the instant case, this form lease with its exculpatory clause, was executed in a metropolitan area in 1947, when housing shortages were so acute that “waiting lists” were the order of the day, and gratuities to landlords to procure shelter were common. (U.S. Sen. Rep. 1780, Committee on Banking & Currency, vol. II, 81st Cong., 2nd Sess. (1950), p. 2565 et seq.; Cremer v. Peoria Housing Authority, 399 Ill. 579, 589.) While plaintiff admittedly did not negotiate about the exculpatory clause, as the majority opinion notes, the' record shows unequivocally that the apartment would not have been rented to her if she had quibbled about any clause in the form lease. According to the uncontroverted testimony, “If a person refused to sign a [form] lease in the form it was in, the apartment would not be rented to him.”

Apparently, the majority opinion has chosen to ignore those facts and prevailing circumstances, and finds instead that there were thousands of landlords competing with each other with a variety of rental units. Not only was the *442element of competition purely theoretical — and judges need not be more naive than other men — but there wasn’t even theoretical competition, as far as the exculpatory clauses were concerned, since these clauses were included in all form leases used by practically all landlords in urban areas. (Simmons v. Columbus Venetian Stevens Building, Inc., 20 Ill. App. 2d 1, 155 N.E.2d 372; 1952 Ill. L. Forum, 321, 328.) This meant that even if a prospective tenant were to “take his business elsewhere,” he would still be confronted by the same exculpatory clause in a form lease offered by another landlord.

Thus, we are not construing merely an isolated provision of a contract specifically bargained for by one landlord and one tenant, “a matter of private concern,” as the majority opinion myoptically views the issue in order to sustain its conclusion. We are construing, instead, a provision affecting thousands of tenants now bound by such provisions, which were foisted upon them at a time when it would be pure fiction to state that they had anything but a Hobson’s choice in the matter. Can landlords, by that technique, immunize themselves from liability for negligence, and have the blessings of this court as they destroy the concept of negligence and standards of law painstakingly evolved in the case law? That is the issue in this case, and the majority opinion at no time realistically faces it.

In resolving this issue, it is evident that despite the assertion in the majority opinion, there is no such thing as absolute “freedom of contract” in the law. (West Coast Hotel Co. v. Parrish, 300 U.S. 379, 392, 81 L. ed. 703.) As Mr. Justice Holmes stated, “pretty much all law consists in forbidding men to do some things that they want to do, and contract is no more exempt from the law than other acts.” (Dissent, Adkins v. Children’s Hospital of the District of Columbia, 261 U.S. 525, 568, 67 L. ed. 785.) Thus, there is no freedom to contract to commit a crime; or to *443contract to give a reward for the commission of a crime; or to contract to violate essential morality; or to contract to accomplish an unlawful purpose, or to contract in violation of public policy. 12 I.L.P., Contracts, secs. 151» 154.

In the instant case we must determine whether the exculpatory clause in the lease offends the public policy of this State. We realize that there is no precise definition of “public policy” or rule to test whether a contract is contrary to public policy, so that each case must be judged according to its own peculiar circumstances. (First Trust & Savings Bank of Kankakee v. Powers, 393 Ill. 97, 102.) None would dispute, however, that there is a recognized policy of discouraging negligence and protecting those in need of goods or services from being overreached by those with power to drive unconscionable bargains.

Even the majority opinion recognizes this policy as a possible limitation on the concept of “freedom-of contract” in its statement, “when that freedom expresses itself in a provision designed to absolve one of the parties from the consequences of his own negligence, there is danger that the standards of conduct which the law has developed for the protection of others may be diluted.” Diluted? As applied in the instant case, the word is “destroyed.” When landlords are no longer liable for failure to observe standards of care, or for conduct amounting to negligence by virtue of an exculpatory clause in a lease, then such standards cease to exist: They are not merely "diluted.” Negligence cannot exist in abstraction. The exculpatory clause destroys the concept of negligence in the landlord-tenant relationship, and the majority opinion, in sustaining the validity of that clause, has given the concept of negligence in this relationship a “judicial burial.”

This court, however, has refused to countenance such a destruction of standards of conduct and of the concept of negligence in other relationships. We have invalidated *444such exculpatory clauses as contrary to our public policy in contracts between common carriers and shippers or paying passengers (Checkley v. Illinois Central Railroad Co. 257 Ill. 491; Chicago and Northwestern Railway Co. v. Chapman, 133 Ill. 96) ; between telegraph companies and those sending messages (Tyler, Uliman & Co. v. Western Union Telegraph Co. 60 Ill. 421) ; and between employers and employees (Campbell v. Chicago, Rock Island and Pacific Railway Co. 243 Ill. 620; Devine v. Delano, 272 Ill. 166; Consolidated Coal Co. v. Lundak, 196 Ill. 594; Himrod Coal Co. v. Clark, 197 Ill. 514.)

By what logic and reasoning can you hold that such clauses are void and contrary to public policy in an employer-employee contract, but valid in contracts between landlords and tenants, as the majority opinion does? If the criterion for invalidating exculpatory clauses is the presence of “monopolistic characteristics” in the relationship, as the majority opinion suggests, then do employers have a greater monopoly on the labor market than landlords have on the tenant market ? Is there less competition among employers for employees than among landlords for tenants? The facts defy any such reasoning. Nor are there any other cogent groúnds for distinguishing between these categories.

The legal anomaly of sustaining such clauses in leases, while voiding them in other types of contracts, when the grounds on which they are held void can be matched by similar grounds in the relationship of landlord and tenant, is pointed out by the court in the aforementioned Simmons case, where the court made a scholarly review of the decisions in Illinois and other jurisdictions respecting exculpatory clauses in leases and other contracts. The court stated : “Is it more important that a man should have a safe place to work than that he should have a safe place to live, and is there any more reason in the employer-employee relationship that the employer should not be allowed to avoid *445liability for his negligence than there is that a landlord should not be able to avoid the liability for negligence in maintaining the common area which must be used by people to attain ingress and egress when they rent a portion of the premises? Is safety while working more important than safety while living?”

This patent inconsistency respecting the validity of an exculpatory clause, created by the majority opinion, is in no way required by Illinois precedents. The only Illinois authority cited — and this is done indirectly by referring to the Appellate Court’s reliance on the case — is Jackson v. First National Bank of Lake Forest, 415 Ill. 453. However, even a cursory reading of that case reveals that the court, in sustaining an exculpatory clause in a business lease, inferred that a different result would have followed if there was anything in the record indicating that the parties were not on an equal footing, or that the lessee had no freedom of choice, or had to accept what was offered. That court stated at page 463: “This is a business lease. There is nothing to suggest that the parties were not dealing at arms’ length and upon equal footing. No facts are brought to our attention from which it might be reasonable to infer that the lessee was forced to take the storeroom upon lessor’s terms.”

Compare that situation with the facts in the instant case, where it is admitted that there were waiting lists for the apartment and that if a person refused to sign the lease with the exculpatory clause in the form it was in, the apartment would not be rented to- him. Only by the blind application of precedent can the Jackson case be deemed determinative herein. Nor is there any established line of authority elsewhere sustaining exculpatory clauses in leases, but only conflicting decisions, and a disposition to emasculate such exculpatory clauses by giving them a strict, if not distorted construction. 175 A.L.R. 8, go; 15 Univ. Pitt. L. Rev. 493, 496.

*446Furthermore, while stare decisis has a strong social justification, it should not be used to stifle the growth of the law. When experience, which Mr. Justice Holmes has stated is the “life of the law,” makes manifest that a rule is without vitality, a court cannot abdicate its responsibility of reappraisal.

The basis of voiding exculpatory clauses is that they are contrary to the public policy of discouraging negligence and protecting those in need of goods or services from being overreached by those with power to drive unconscionable bargains. (Bisso v. Inland Waterways Corp. 349 U.S. 85, 91, 99 L. ed. 911.) In determining whether such clauses should be deemed void, the courts have weighed such factors as the importance which the subject has for the physical and economic well-being of the group agreeing to the release; their bargaining power; the amount of free choice actually exercised in areeing to the exemption; and the existence of competition among the group to be exempted. (Williston, Contracts, vol. 6, p. 4968: “The Significance of Bargaining Power in the Law of Exculpation,” 37 Col. L. Rev. 248; 175 A.L.R. 8, 48; 15 Univ. Pitt. L. Rev. 493.) Adjudged by such criteria, it is evident that the subject matter of the exculpatory clause herein— shelter — is indispensable for the physical well being of tenants; that they have nothing even approaching equality of bargaining power with landlords and no free choice whatever in agreeing to the exemption, since they will be confronted with the same clause in other form leases if they seek shelter elsewhere. Although the majority opinion claims that such clauses may also benefit tenants, it is hard for us to envisage a tenant on a waiting list for an apartment, insisting that the lease include a provision relieving him from liability for his negligence in the maintenance of the premises. Consequently, in our judgment, every material ground for voiding the exculpatory clause exists in the lease involved in the instant case.

*447Similar conclusions have been reached by other courts, after recognizing the change in the status and bargaining power in the landlord-tenant relationship that has taken place. (Kuzniak v. Brookchester, 33 N.J. Super. 575, III A.2d 425; Kay v. Cain (D.C. Cir.) 154 F.2d 305.) Thus, the New Jersey court stated in the Kuzniak case at page 432: “Under present conditions the comparative bargaining position of landlords and tenants in housing accommodations within many areas of the state are so unequal that tenants are in no position to bargain, and an exculpatory clause which purports to immunize the landlord from all liability would be contrary to public policy.” (Italics ours.)

In the same vein, the Federal court in Kay v. Cain, 154 F.2d 305, stated at page 306: “Moreover, it is doubtful whether such a clause which would undertake to exempt a landlord from responsibility for such negligence would now be valid. The acute housing shortage in or near the District of Columbia gives a landlord so great a bargaining advantage over a tenant that such an exemption might well be invalid on the grounds of public policy.” The majority opinion, however, labels such changed conditions as “sporadic” and.chooses to1 ignore them because they may change again at some future time. It holds that judicial determinations of public policy should “rest upon a more durable moral basis.” Our concept of the judicial function is not so circumscribed, nor is it elastic in one case and restrictive in another, depending upon economic predilections. It is hard for us to fathom that this same court which enunciated the liberal and scholarly approach of interpreting common-law concepts in the light of contemporary conditions and social needs in Nudd v. Matsoukas, 7 Ill.2d 608, 619, Amann v. Faidy, 415 Ill. 422, and Brandt v. Keller, 413 Ill. 503, can now hold with academic detachment that landlords, who are in the position to dictate whatever terms they choose to those in need of shelter, have a right to immunize themselves by contract from lia*448bility for failure to make essential repairs of areas which the tenants cannot legally repair, and that such contracts do not offend the public policy of this State. Upon what “durable moral basis” does that public policy determination rest?

We prefer to consistently follow our realistic policy of interpreting common-law concepts created by the courts in the light of contemporary conditions, as pledged in Nudd v. Matsoukas and the other cases, in accordance with the traditions of the creative jurists of our time. Holmes, Southern Pacific Co. v. Jensen, 244 U.S. 205, 221, 61 L. ed. 1086; Cardozo, “Growth of the Law.”

As Mr. Justice Cardozo explained in his treatise, “Growth of the Law,” (Selected Writings of Benjamin Nathan Cardozo, p. 246) : “A rule which in its origin was the creation of the courts themselves and was supposed in the making to express the mores of the day, may be abrogated by the courts when the mores have so changed that perpetuation of the rule would do violence to the social conscience. * * * This is not usurpation. It is not even innovation. It is the reservation for ourselves of the same power of creation that built up the common law through its exercise by the judges of the past.”

In this connection, Mr. Chief Justice Warren more recently observed: “A * * * reason for the success of our legal system is its adaptability to changing circumstances. As Pollack said, all courts have a duty, which ours generally try to perform, ‘to keep the rules of law in harmony with the enlightened common sense of the nation.’ ” “The Law of the Future,” Mr. Chief Justice Warren, Fortune Magazine, Nov. 1955, p. 107.

The majority opinion apparently dismisses whatever misgivings it has for the resulting social consequences of its decision with the observation that the problem is “appropriate for legislative rather than judicial action,” and refers to the New York and Massachusetts statutes. McKinney’s *449Consol. Laws of N.Y. Ann., Real Prop. Laws, sec. 234, vol. 49, part I; Ann. Laws of Mass, vol. 6, chap. 186, sec. 15.

Future legislation on this subject will be of small comfort to the hundreds of persons with cases pending in our courts for injuries sustained through conduct of landlords tantamount to common-law negligence. What help can the legislature give to such persons? Their only protection lies in the inherent power of the courts to adjudicate common-law rights and their duty to strike down contracts in derogation of the public policy of the State. That duty is in no way abridged by the fact that some legislatures have declared such exculpatory clauses contrary to public policy. We cannot perceive how such legislative action elsewhere relieves this court from its duty of also recognizing the public policy in the case law, which is an equally cogent source of a State’s public policy. People ex rel. Nelson v. Wiersema State Bank, 361 Ill. 75, 86.

Moreover, for this court, which has recently and repeatedly expressly refused to relegate to the legislature the task of reinterpreting common-law concepts necessary in the development of the law (People ex rel. Noren v. Dempsey, 10 Ill.2d 288, 293; Nudd v. Matsoukas, 7 Ill.2d 608), to now adbdicate to the legislature, as the majority opinion has done, is not only inconsistent but an admission of failure to resolve the problem. Legislative intrusion into the field of the common law can only be justified when courts have refused to exercise their own function. (Green, “Freedom of Litigation,” 38 Ill. L. Rev. 355, 378, 382.) There should be no such refusal by this court in the instant case.

In our judgment, authorizing landlords to immunize themselves from liability for negligence, as the majority opinion has done, at a time of critical housing shortages, recognized by Congress and the courts, is not only inconsistent with much law and the public policy of this State, but it is in derogation of our duty “to keep the rules of law *450in harmony with the enlightened common sense of the nation.” Therefore, we believe it our obligation to dissent from that opinion, and to protest against the destruction of the common-law rights of a significant proportion of the population of this State.

Shields, J.*

This is a wrongful death action arising out of a scuba diving accident. The court dismissed the defendants on summary judgment after finding the decedent Peter Boyce had released them from liability and assumed all risks associated with the scuba diving course he was taking. Iris Boyce appeals, contending the liability releases that her son signed did not cover instructor James West and should not be enforced as to Gonzaga University as a matter of public policy. Mrs. Boyce further contends there are genuine issues of material fact as to whether Mr. West was grossly negligent and whether her son assumed the risk of negligent instruction and supervision by Mr. West. We affirm.

Mr. Boyce was a student at Gonzaga University. In the spring of 1988, dining his freshman year, he enrolled in Scuba Diving 1, an introductory scuba diving course offered as a physical education elective. At the beginning of the course he signed documents entitled "PADI[1] Standard Safe Diving Practices Statement of Understanding", "PADI Medical Statement", and "Affirmation and Liability Release". The latter document purported to release Down Under Divers and PADI from all Lability for negligence and to affirm Mr. *660Boyce's full assumption of all risks associated with the program. Mr. Boyce successfully completed the course, taught by Down Under Divers' employee John Miller; he earned an A and received one credit. All dives took place in the school's swimming pool.

During the summer, Mr. Boyce became a certified scuba diver after completing at least four open-water dives with an independent certifying authority. Certification was a prerequisite for taking the advanced scuba diving course (Scuba Diving 2) offered by Gonzaga.

In the fall of 1988, Mr. Boyce enrolled in Scuba Diving 2, which was taught by James West, an adjunct instructor at Gonzaga and owner of Down Under Divers. At the first class on September 5, Mr. Boyce again signed documents entitled "PADI Standard Safe Diving Practices Statement of Understanding", "PADI Medical Statement", and "Affirmation and Liability Release". The forms were not identical to those he had signed for the beginning course, but were substantially similar. This time the release named PADI and Gonzaga University.

By November 27, 1988, Mr. Boyce had successfully completed three of the five specialty dives planned for the course. He died that day during the fourth dive, a deepwater dive in Lake Coeur d'Alene. The diving group consisted of instructor West, Mr. Boyce, and two other students, Steve Kozlowski and John Sterling. The dive required the use of dry suits, so they had spent several hours the day before learning to use them. During the dive the divers descended 80 to 100 feet along an anchor line to the bottom of the lake, then swam 10 to 15 feet to a wreck. There, Mr. West checked his students' air supplies. Concerned that they were running low on air because Mr. Kozlowski and Mr. Boyce both registered only 800 pounds of air, one-half of the amount they started with, he signaled the group to return to the anchor line and ascend to the surface. When they got back to the anchor line, Mr. Kozlowski indicated he was very low on air: he had just 100 *661pounds of air left. As Mr. West turned to check on Mr. Sterling and Mr. Boyce, Mr. Kozlowski tugged at him, panicked over lack of air. Mr. West immediately gave Mr. Kozlowski his alternate regulator and assisted him to the surface, buddy breathing along the way. In the emergency, he lost sight of Mr. Boyce. Mr. West next saw Mr. Boyce floating on the surface. Resuscitation efforts were unsuccessful; Mr. Boyce died of air embolism resulting from too rapid an ascent.

Iris Boyce, as personal representative of her son's estate, sued Mr. West and Gonzaga for wrongful death. The complaint asserts Mr. West negligently caused Mr. Boyce's death and Gonzaga is vicariously liable for the negligence of its agent. The defendants denied negligence and asserted as alternative affirmative defenses the release of liability2 and assumption of risk3 provisions contained in the documents signed by Mr. Boyce.

Mr. West and Gonzaga moved for summary judgment. Mrs. Boyce resisted the motion and submitted parts of a deposition of Charles R. Lewis, a dive master, in which Mr. Lewis expresses his opinion that Mr. West was negligent in his instruction and supervision of the students. Mr. Lewis did acknowledge that with the 50 pounds of air Mr. Boyce still had when he reached the surface, he would have had enough air had he continued to exhale on the way up, and that free *662ascents have been made from greater depths. By memorandum decision entered April 15, 1992, the court granted the motion for summary judgment.

Release of Liability

Mrs. Boyce first contends neither of the releases of liability signed by Mr. Boyce cover Mr. West. We agree the spring release does not apply to Mr. West,4 but conclude the fall release does.

A release is a contract in which one party agrees to abandon or relinquish a claim, obligation or cause of action against another party. 6 M. Minzer, J. Nates, C. Kimball, and D. Axelrod, Damages in Tort Actions § 51.11[3], at 51-9 (1991). As a contract, a release is to be construed according to the legal principles applicable to contracts. Stottlemyre v. Reed, 35 Wn. App. 169, 171, 665 P.2d 1383, review denied, 100 Wn.2d 1015 (1983). Exculpatory clauses are strictly construed and must be clear if the release from liability is to be enforced. Scott v. Pacific West Mt. Resort, 119 Wn.2d 484, 490, 834 P.2d 6 (1992).

The fall release, signed September 5,1988, names only Gonzaga and PADI. Mrs. Boyce concedes it releases Gonzaga from liability unless a public interest is involved. The release does not name Mr. West, but it is undisputed that Mr. West was Gonzaga's employee. The general rule is that a preinjury release of the employer from liability also releases the employee.5 Restatement (Second) of Agency § 347(2) & comment *663 b (1958); see 3 C.J.S. Agency § 379 (1973). Mr. West, in the performance of his job as an instructor for Gonzaga, owed Mr. Boyce no greater duty of care than Gonzaga, which by contract relieved itself from liability for harm caused by ordinary negligence.6 Restatement (Second) of Agency § 347(2), comment 6; § 350, comment d (1958). Put another way,

[when] a valid agreement is entered into between an employer and a third person, exculpating the former from liability to the latter for ordinary negligence, an employee is ordinarily entitled to the same exculpation as his employer, even though he is not expressly named as a beneficiary of such exculpation.

Mayfair Fabrics v. Henley, 101 N.J. Super. 363, 375-76, 244 A.2d 344, 351 (1968). Mr. West, as an employee of Gonzaga, was covered by the agreement releasing Gonzaga from liability for negligent harm to Mr. Boyce.

Mrs. Boyce next contends the release of Gonzaga from liability violates public policy and should not be enforced. In Washington, contracts of release of liability for negligence are valid unless a public interest is involved. Hewitt v. Miller, 11 Wn. App. 72, 521 P.2d 244, review denied, 84 Wn.2d 1007 (1974).

Wagenblast v. Odessa Sch. Dist. 105-157-166J, 110 Wn.2d 845, 758 P.2d 968, 85 A.L.R.4th 331 (1988) sets forth six factors, taken from Tunkl v. Regents of Univ. of Cal., 60 Cal. 2d 92, 383 P.2d 441, 32 Cal. Rptr. 33, 6 A.L.R.3d 693 (1963), which are to be considered in determining whether exculpatory agreements violate public policy. The court considers whether (1) the agreement concerns an endeavor of a type *664generally thought suitable for public regulation; (2) the party seeking exculpation is engaged in performing a service of great importance to the public, which is often a. matter of practical necessity for some members of the public; (3) such party holds itself out as willing to perform this service for any member of the public who seeks it, or at least for any member coming within certain established standards; (4) because of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks the services; (5) in exercising a superior bargaining power, the party confronts the public with a standardized adhesion contract of exculpation, and makes no provision whereby a purchaser may pay additional reasonable fees and obtain protection against negligence; and (6) the person or property of members of the public seeking such services must be placed under the control of the furnisher of the services, subject to the risk of carelessness on the part of the furnisher, its employees or agents. Wagenblast, at 851-55. Those factors are not present here. As noted in Hewitt, at 74, "[e]xtended discussion is not required to conclude that instruction in scuba diving does not involve a public duty . . .." Accord, Blide v. Rainier Mountaineering, Inc., 30 Wn. App. 571, 574, 636 P.2d 492 (1981), review denied, 96 Wn.2d 1027 (1982), in which the court noted: "Although a popular sport in Washington, mountaineering, like scuba diving, does not involve public interest. . .."

Madison v. Superior Court, 203 Cal. App. 3d 589, 250 Cal. Rptr. 299 (1988) is' a factually similar case arising out of the death of a student enrolled in a scuba diving course offered through the YMCA. The Madison court applied the Turikl factors and concluded a release signed by the scuba student did not involve a public interest. It then observed, in words that apply to this case as well:

Here, [decedent] certainly had the option of not taking the class. There was no practical necessity that he do so. In view of the *665dangerous nature of this particular activity defendants could reasonably require the execution of the release as a condition of enrollment. [Decedent] entered into a private and voluntary transaction in which, in exchange for an enrollment in a class which he desired to take, he freely agreed to waive any claim against the defendants for a negligent act by them. This case involves no more a question of public interest than does motor-cross racing, sky diving, or motorcycle dirtbike riding.

(Citations omitted.) Madison, at 599. We do not find a public interest in a private school7 offering scuba diving instruction to qualified students as an elective course. Upholding the release of Gonzaga does not violate public policy.

Mrs. Boyce further contends there are issues of material fact whether the defendants were grossly negligent. If Mr. West's negligent acts fell greatly below the standard established by law for the protection of others against unreasonable risk of harm, the releases are unenforceable. Blide, at 573.

A defendant who can point out to the trial court that the plaintiff lacks competent evidence to support an essential element of the plaintiff's case is entitled to summary judgment because a complete failure of proof concerning an element necessarily renders all other facts immaterial. Young v. Key Pharmaceuticals, Inc., 112 Wn.2d 216, 225 & n.l, 770 P.2d 182 (1989); Guile v. Ballard Comm'ty Hosp., 70 Wn. App. 18, 23, 851 P.2d 689, review denied, 122 Wn.2d 1010 (1993). Evidence of negligence is not evidence of gross negligence; to raise an issue of gross negligence, there must be substantial evidence of serious negligence. Nist v. Tudor, 67 Wn.2d 322, 332, 407 P.2d 798 (1965). Since a release of liability exculpates ordinary negligence, if it occurs, the plaintiff must establish gross negligence affirmatively to avoid enforcement of the release.

Mrs. Boyce neither alleged gross negligence in her complaint, nor amended it to make that allegation, nor provided *666the court with any evidence supporting an allegation of gross negligence. The only evidence of any degree of negligence presented by Mrs. Boyce consists of excerpts of the deposition testimony of her expert, Mr. Lewis. In those excerpts, Mr. Lewis expresses his opinion that Mr. West was negligent. However, as the trial court found, nothing in Mr. Lewis' testimony supports Mrs. Boyce's assertion that Mr. West was grossly negligent. Mrs. Boyce's allegation, supported by nothing more substantial than argument, is insufficient to defeat a motion for summary judgment. CR 56(e); Guile, at 25. Because there was no material issue of fact as to the existence of gross negligence, an essential element for avoidance of the release of liability, summary judgment was proper.

Assumption of Risk

Mrs. Boyce, in response to respondents' alternative defense, also contends her son did not assume the risk of negligent instruction and supervision. She argues assumption of the risk, whether express or implied primary, bars recovery only for injuries resulting from known risks voluntarily assumed. Kirk v. WSU, 109 Wn.2d 448, 453-54, 746 P.2d 285 (1987) and cases cited therein. Thus, to the extent Mr. Boyce's death resulted from other unknown risks, created by the defendants, Mrs. Boyce argues Mr. West and Gonzaga remain liable. Kirk, at 455. See also Scott v. Pacific West Mt. Resort, 119 Wn.2d 484, 499, 834 P.2d 6 (1992).

In its memorandum decision, the trial court blurs the distinction between express assumption of the risk and implied primary assumption of the risk and refers to "express primary assumption of the risk." The confusion is understandable; the entire doctrine is surrounded by confusion. Scott, at 496. Express primary assumption of risk arises out of a contract concept; implied primary assumption of risk arises out of a tort concept. Scott, at 496-98. Identical in result to a release of liability which exculpates for ordinary negligence if it occurs, express and imphed primary assumption of risk exculpate by shifting the duty of care from the defendant to the plaintiff, thus preventing negligence from *667occurring. Express assumption of risk bars a claim resulting from risks actually assumed by the plaintiff; implied primary assumption of risk bars a claim resulting from specific known and appreciated risks. Scott, at 497. One who participates in sports impliedly assumes the risks which are inherent in the sport. Scott, at 498.

1. Express assumption of risk. Mr. Boyce acknowledged the possibility of death from scuba diving and assumed "all risks in connection with [the scuba diving] course . . . while I am enrolled as a student of the course, including all risks connected therewith, whether foreseen or unforeseen . . .". Negligent instruction and supervision are clearly risks associated with being a student in a scuba diving course and are encompassed by the broad language of the contract. That Mr. Boyce may not have specifically considered the possibility of instructor negligence when he signed the release does not invalidate his express assumption of all risks associated with his participation in the course. Again, the words used by the court in Madison, at 601 (quoting from Coates v. Newhall Land & Farming, Inc., 191 Cal. App. 3d 1, 9, 236 Cal. Rptr. 181 (1987)), apply just as well to this case:

"... knowledge of a particular risk is unnecessary when there is an express agreement to assume all risk; by express agreement a 'plaintiff may undertake to assume all of the risks of a particular. . . situation, whether they are known or unknown to him.' (Rest.2d Torts § 496D, com. a, italics added; Prosser & Keeton, Torts (5th ed. 1984) § 68, p. 482.)" (Fn. Omitted.)

As with the release of liability exculpating ordinary negligence, in the absence of a showing of gross negligence, Mr. Boyce's express assumption of all risks associated with his enrollment in the scuba diving course bars a claim for recovery. W. Keeton, D. Dobbs, R. Keeton & D. Owen, Prosser and Keeton on Torts § 68, at 484 (5th ed. 1984). The summary judgment on this alternative defense was also proper.

2. Implied primary assumption of risk. Although the summary judgment is supported alternatively on the grounds of release of liability and express assumption of risk, the trial court's memorandum decision suggests the court also relied *668on implied primary assumption of risk as a basis for summary judgment. This was unnecessary. In any case, Mr. Boyce's express assumption of all risk provides adequate grounds to support the summary judgment. We need not, and do not, decide whether implied primary assumption of the risk applies to these facts. Summary judgment was properly granted.

We affirm.

Sweeney, A.C.J., and Munson, J., concur.

HORTON, J.

The plaintiff, Robert J. Arthur, appeals an order of the Superior Court (Mohl, J.), granting the motion of the defendant, Holy Rosary Credit Union (Holy Rosary), for a directed verdict on all counts of the plaintiffs negligence claim. We affirm in part, reverse in part, and remand.

Holy Rosary hired Credit Union Building Corporation (CUBC) to oversee and coordinate the construction, design, and furnishing of its new building in Rochester. CUBC charged a fee of three-and-one-half percent of the approximately $650,000 cost of construction. Although CUBC did not involve itself in the manner or means of construction, as project manager it inspected the construction on a weekly basis. CUBC helped Holy Rosary select Whitcher Builder, Inc., a New Hampshire construction firm with over twenty-six years of experience, as the general contractor for the construction project. Whitcher Builder was the lowest bidder for the job. The plaintiff was an employee of Whitcher Builder.

On the day of the injury, Whitcher Builder directed the plaintiff to work on an unfinished roof, which was also the floor deck for the second story. The plaintiff was to assist in covering the concrete deck with polyethylene so that the concrete would cure. The stairwell hole to the first floor was covered only by polyethylene and had not yet been covered with plywood or planks. The plaintiff injured his back by falling through this hole into the basement twenty-three feet below. The plaintiff received workers’ compensation benefits. He also sued Holy Rosary, essentially asserting that (1) the construction work was an inherently dangerous activity which created a non-delegable duty in Holy Rosary, (2) CUBC was Holy Rosary’s agent and negligently controlled Whitcher Builder, and (3) Holy Rosary was negligent in selecting Whitcher Builder as a contractor. The trial judge granted Holy Rosary’s motion for a directed verdict on all counts at the close of the plaintiffs case,- ruling that the construction work was not, as a matter of law, inherently dangerous, and that there was no evidence of negligent control or selection.

*465The plaintiff appeals, arguing that the court erred in granting the directed verdict by taking from the jury the following issues: (1) whether the work in which the plaintiff was engaged at the time of his injury was inherently dangerous, and thus created a non-delegable duty in Holy Rosary; (2) whether CUBC was Holy Rosary’s agent, and whether, by acting negligently in its duties to supervise and control the construction, CUBC caused the plaintiffs injury; and (3) whether Holy Rosary negligently selected Whitcher Builder as the contractor.

“A trial court may grant a directed verdict only when the evidence and all reasonable inferences therefrom, construed most favorably to the party opposing the motion, would not enable a jury to find for that party.” Cloutier v. A. & P. Tea Co., Inc., 121 N.H. 915, 920, 436 A.2d 1140, 1143 (1981) (quotation omitted). The trial court “cannot weigh the evidence or judge the credibility of the witnesses, and, if the evidence is conflicting or several reasonable inferences may be drawn, the motion for [a directed verdict] should be denied.” Amabello v. Colonial Motors, 117 N.H. 556, 561, 374 A.2d 1182, 1185 (1977). The plaintiffs claim must be found to be “completely without merit.” Cloutier, 121 N.H. at 920, 436 A.2d at 1143. This court will uphold a trial court’s decision to grant a motion for a directed verdict unless the trial judge abused his or her discretion in determining that no rational juror could find for the party against whom the motion is filed. Vincent v. Public Service Co. of N.H., 129 N.H. 621, 625, 529 A.2d 397, 399 (1987).

The plaintiff first contends that the trial court erred by not permitting the juiy to decide whether the roof work was inherently dangerous. Respondeat superior, or vicarious liability, ordinarily does not extend to torts by independent contractors because the employer reserves no control or power of discretion over the execution of the work. Carter v. Berlin Mills Co., 58 N.H. 52, 53-54 (1876). We have long recognized an exception to this general rule when the independent contractor is engaged to perform work that is dangerous in itself. Thomas v. Harrington, 72 N.H. 45, 46-7, 54 A. 285, 286 (1903). The inherent danger exception applies only when “[t]he danger [arises] directly from the work . . . required to be done, and not from the negligent manner of its performance.” Id. “[T]he phrase ‘inherently dangerous’ as applied to undertakings conducted through independent contractors often implies work that is dangerous even when conducted with reasonable care; . . . the exception relating to such undertakings has been principally applied in cases of demolition, excavation, and other clearly dangerous activities.” Carr v. Merrimack Farmers Exchange, 101 N.H. 445, 449, 146 A.2d 276, 279 (1958).

The inherent danger doctrine applies only where the alleged danger is “naturally to be apprehended” by the defendant at the time it *466engages the independent contractor to perform the work. See Thomas, 72 N.H. at 46, 54 A. at 286; Restatement (SECOND) of Torts § 427, comment d at 417 (1965). “[Wjhether an activity is inherently dangerous is a question of fact to be determined by the trier of fact.” Elliott v. Public Service Co. of N.H., 128 N.H. 676, 682, 517 A.2d 1185, 1189 (1986). If the activity is, in fact, inherently dangerous, “one who undertakes [it] has a non-delegable duty to protect third parties against injury resulting from that activity.” Id. at 679, 517 A.2d at 1187.

The trial judge ruled that the plaintiff failed to establish a claim under the inherently dangerous activity doctrine because the danger here arose not directly from the work required to be done, but from the negligent manner of its performance by Whitcher Builder. See Elliott, 128 N.H. at 679, 517 A.2d at 1187. The trial judge noted that to consider

[t]he activity in and of itself ... as, inherently dangerous . . . would literally make the construction of every commercial or residential building in this [S]tate an inherently dangerous activity rendering the owner liable for the negligence of the contractor, and it seems to me that I cannot read that into the Elliott case.

We agree that construction projects, typically fraught with a varieiy of potential dangers that may arise if the work is not carefully done, do not, as a rule, fall within the inherently dangerous category. We hold that to be an inherently dangerous activity, construction, or any other work, must be dangerous in and of itself and not dangerous simply because of the negligent performance of the work, and that the danger must be naturally apprehended by the parties when they contract. See Thomas, 72 N.H. at 46-47, 54 A.2d at 286. Only then will the work constitute an inherent danger that places a non-delegable duty upon the one ordering it to protect third parties against resulting injury.

A review of the record indicates that the danger Whitcher Builder caused by first covering the hole with plastic instead of wood was not a “necessary and anticipated part of the work,” see id. at 46, 54 A. at 286, and that the evidence does not show that Holy Rosary either knew or should have known that Whitcher Builder would perform the work in this potentially dangerous manner. We find that the trial judge properly ruled that because the inherent danger doctrine is inapplicable as a matter of law where, as here, the danger derived not from the nature of the work, but from the negligence of the contractor, see Elliott, 128 N.H. at 679, 517 A.2d at 1187, there was no issue for the jury. See Vincent, 129 N.H. at 625, 529 A.2d at 399.

*467The plaintiff next argues that the trial court erred by not permitting the jury to decide whether CUBC was Holy Rosary’s agent, and whether, by acting negligently in its duties to supervise and control the construction, CUBC caused the plaintiffs injury. A review of the record indicates that the evidence is insufficient to enable a reasonable jury to find that Holy Rosary exercised direct control over the construction. The trial court’s finding that the evidence was insufficient for a reasonable jury to determine CUBC to be an agent of Holy Rosary, however, was in error. We find that the evidence, including the contract and related correspondence between CUBC and Holy Rosary, could lead a reasonable jury to the conclusion that CUBC, as project manager, was the agent of Holy Rosary. In a February 15, 1989, letter outlining CUBC’s services and fees, CUBC stated that Holy Rosary “would have a single source of responsibility whereby all disciplines (general contractors, sub-contractors, architect, engineers, interior suppliers, equipment, building inspectors, etc.) would be supervised and coordinated by Credit Union Building Corporation as Project Manager, and at the same time allow you to be in control of the project.” The actual contract, signed by CUBC on February 15, 1989, and by Holy Rosary on February 16, 1989, provided that CUBC “will include in its budget a line-item for on-site supervision and project management.” If a jury were to find that CUBC was Holy Rosary’s agent, Holy Rosary would be liable if CUBC was responsible for the reasonable supervision and safety of the worksite and, in negligently carrying out this duty, caused the injury.

As the court noted during the last day of trial, “some conflict in the testimony” exists regarding the responsibilities of CUBC. The plaintiffs expert testified that the role of a project manager would include ensuring “that the work is being performed in an orderly and safe fashion . . . .” The expert also testified that “[i]t doesn’t appear that there was adequate supervision” here. In contrast, Harvey Levin, the owner of CUBC, testified in his deposition that Whitcher Builder, not CUBC, was responsible for supervision and safety at the site. David R. Whitcher, the principal of Whitcher Builder, offered corroborating testimony, and his contract with Holy Rosary placed the responsibility for the safety of the worksite upon Whitcher Builder:

10.1.1 The Contractor shall be responsible for initiating, maintaining and supervising all safety precautions and programs in connection with the performance of the Contract.

10.2.1 The Contractor shall take reasonable precautions for safety of, and shall provide reasonable protection to prevent damage, injury or loss to:

*468.1 employees on the work and other persons who may be affected thereby;

10.2.3 The Contractor shall erect and maintain, as required by existing conditions and performance of the Contract, reasonable safeguards for safety and protection, including posting danger signs and other warnings against hazards, promulgating safety regulations and notifying owners and users of adjacent sites and utilities.

It is not our province, however, to weigh the evidence. We therefore reverse the directed verdict on this count and remand for a determination as to whether CUBC had a duty of supervision and responsibility for the safety of the worksite, and, if so, whether it causally breached this duty as the agent of Holy Rosary, vesting liability in Holy Rosary. See Vincent, 129 N.H. at 625, 529 A.2d at 399.

The plaintiff finally argues that the trial court erred by not permitting the jury to decide whether Holy Rosary negligently selected the contractor. As a general rule, the employer has a duty to use reasonable care to choose a contractor who is properly qualified to perform the work. 41 Am. Jur. 2d Independent Contractor § 26 (1968 & Supp. 1994). “[A]n employer of an independent contractor may be liable to one injured as a result of the contractor’s fault where it is shown that the employer was negligent in selecting a careless or incompetent person with whom to contract.” Annotation, When Is Employer Chargeable with Negligence in Hiring Careless, Reckless, or Incompetent Independent Contractor, 78 A.L.R.3d 910, 916 (1977).

The lack of due care in selection must have a causal connection to the injury sustained. Restatement (SECOND) of Torts § 411, comment b at 377 (1965). Holy Rosary cannot be held liable for having employed an incompetent contractor unless the plaintiff proves that Holy Rosary knew or by the exercise of reasonable care could have known of the contractor’s lack of qualifications, and that the alleged lack of due care in selection resulted in the injuiy at issue. 41 Am. Jur. 2d Independent Contractor § 26. Here, the trial judge concluded that there was no evidence suggesting that Whitcher Builder lacked qualification:

[Biased on the evidence I have heard in the case so far, I don’t believe that there is any evidence from which a jury could find that the selection of the Whitcher Corporation was negligent. It seems to me the only evidence we have is evidence of what was done with respect to the Whitcher Corporation in terms of prior construction activity, and the arguments made with *469respect to whether or not Whitcher was overextended and the like are really speculation and are not based upon evidence in this case, and I don’t believe that any reasonable jury could, viewing this evidence, determine that the selection of Whitcher was negligent, that is was negligent on the part of the Defendant Holy Rosary Credit Union.

A review of the record indicates that the evidence, viewed in a light most favorable to the plaintiff, could not be construed by a reasonable jury as constituting a case of negligent selection of Whitcher Builder by Holy Rosary. See Vincent, 129 N.H. at 625, 529 A.2d at 399.

Affirmed, in part; reversed in part; remanded.

JUSTICE COMPTON

delivered the opinion of the Court.

On May 12, 1988, Riley E. Wright was severely injured in a collision between the dump truck he was operating and a Norfolk and Western Railway Company train at a public crossing. Wright’s guardians filed this negligence action against N & W seeking damages on behalf of their ward, a disabled person. A jury returned a verdict in favor of the plaintiffs for $4 million.

Sustaining a post-trial motion, the court below set the verdict aside and entered judgment for the defendant. We awarded the plaintiffs an appeal and also agreed to consider the defendant’s assignments of cross-error. The principal issue on appeal, however, is whether the trial court correctly ruled that Wright was guilty of contributory negligence as a matter of law.

Although the trial court set the verdict aside, we shall accord the plaintiffs, the recipients of the jury verdict, the benefit of any substantial conflicts in the evidence and of all reasonable inferences that may be drawn from the facts. Holland v. Shively, 243 Va. 308, 309, 415 S.E.2d 222, 223 (1992). The evidence is virtually undisputed.

The accident occurred in the town of Brookneal where Maddox Street crosses N & W’s main line. The track runs north and south, and the two-way street runs generally east and west. U.S. Highway *163 501, a north-south roadway, closely parallels the track to the east. At the crossing, Maddox Street intersects Route 501 about 20 feet east of the track and ends there.

At the scene, the terrain generally is level, and the track is straight for 2,150 feet north from the crossing. Maddox Street is not perpendicular to the track; it angles to the southwest from its intersection with Route 501.

The crossing was marked by crossbucks (signal boards) and an advance railroad warning sign (“a yellow sign that had RR on it”). There were no other signals, warning devices, or traffic controls in place at or near the crossing.

The collision took place on a Thursday about 12:45 p.m. The weather was clear, hot, and humid. The roadways were dry.

At the time, the train, composed of 17 cars loaded with wood chips and pulpwood, was moving southbound through Brookneal. Travelling approximately 34 miles per hour, the train approached the crossing with the headlight burning on the engine. Also, an air-operated bell was ringing continuously. In addition, an air-operated whistle was sounding “two longs, a short and a long.”

At the same time, Wright, who was operating his employer’s truck alone, was proceeding southbound on Route 501 approaching the crossing. Wright’s destination was a lumber yard located just west of the crossing on Maddox Street.

The vehicle was a tandem dump truck with ‘ ‘front axles and ... a dual axle at the back.” Its overall length was “around 25 feet.” The unit included a solid metal dump body that “sits approximately two inches behind the cab” preventing the operator from seeing “out of” the rear cab window. The vehicle had “regular West Coast” rear view mirrors “set to show what’s behind the truck.” The truck, in good operating condition, was equipped with an air conditioner, an AM/FM stereo radio, and a CB radio. It had a capacity of 53,500 pounds and was loaded with gravel.

Wright, age 36 and an experienced dump truck operator, had lived less than a mile from the crossing for ten years. On the day of the accident, he “had hauled . . . four loads of gravel” over the crossing to the lumber yard prior to the incident; the previous day, he had delivered five loads to the same destination.

Eyewitness testimony revealed that Wright approached the crossing behind another southbound dump truck. The first truck turned from Route 501 and stopped on Maddox Street east of the crossing. Wright stopped his truck behind the first vehicle. After the first *164 truck moved over the crossing, clearing the track, Wright drove his truck onto the track in front of the train when the train’s engine was less than ten feet from the truck. The truck travelled at a slow, steady speed, less than five miles per hour, to a point where the train engine struck the truck in the center of its right side, demolishing it and injuring Wright.

One eyewitness pointed out that there was “a slight incline from 501 up to the crossing.” He stated that “as the truck was coming off of 501 onto Maddox the front end of the truck sort of shifted downward as if he were [braking] or changing gears.” The witness said, ‘ T had the thought he was going to stop and then the truck, the front end, raised up as he accelerated onto the tracks.” The train engineer testified that “just before hitting the edge of the crossing, like six feet, the truck whipped in front of me. It was no time to do anything.”

The witnesses did not see any brake lights “come on” on the truck before the impact. The window on the right side of the truck’s cab was closed at the time of the collision. Although Wright did not testify due to his disability, his employer testified that Wright, whose hobby was country music, normally operated the truck’s air conditioner on hot days and normally “kept his radio on and CB on.”

Expert testimony offered by the plaintiffs established that the crossing was not “reasonably safe’’ and that it was “ultradangerous, or an ultrahazardous crossing.” This opinion was based upon ‘ ‘the sight distance available to the motorist, the geometry of the crossing, the type and mix of the traffic that uses the crossing, the speed of the trains, the condition of the tracks and crossing.” According to the expert, “All of those in conjunction with the type of protection afforded at the crossing, which is essentially the cross bucks, made it an ultrahazardous crossing.”

Another expert opined that, because of the angle of Maddox Street relative to the track, the length of the truck, and the radius of the turn, Wright’s view north on the track was severely limited as he turned onto the crossing. This was because the driver was unable, without making a wide turn across the center line of Maddox Street, to bring the truck to a position perpendicular to the track to have a clear view north. Instead, because of the “geometry of that crossing,” Wright could only lean forward in his driver’s seat and try to look through the right side window, his view through the rear window of the cab being completely blocked.

*165 The expert also measured scientifically the sound level inside a similar truck’s cab. He determined, using various assumptions (e.g. air conditioner off or on) that ‘ ‘because of the limited field of view to the right-hand side from this truck and the distances involved and the geometry of the crossing, it was physically impossible for Riley Wright to have heard or seen that train as he approached the crossing in time to avoid the collision, assuming that they both happened to be there at the time, which they did, of course.”

Prior to trial, the defendant filed a motion contending that federal law preempted the plaintiffs’ claim that the Maddox Street crossing was equipped with inadequate crossing protection devices. The trial court took this motion under advisement.

During trial, the defendant moved the court to strike the plaintiffs’ evidence at the conclusion of the plaintiffs’ case-in-chief. The grounds of the motion were that the plaintiffs failed to establish, prima facie, the-defendant’s primary negligence, and that the plaintiffs’ own evidence established Wright was guilty of contributory negligence as a matter of law. This motion was overruled. The trial court, after stating, “I’m very troubled, very troubled by Mr. Wright’s conduct,” decided to allow the contributory negligence issue to go to the jury. The trial court noted this Court’s admonition: ‘ ‘It is a drastic measure to strike the evidence at the end of a plaintiff’s case.” Higgins v. Bowdoin, 238 Va. 134, 141, 380 S.E.2d 904, 908 (1989). The trial court also mentioned that plaintiffs’ counsel had represented that approximately $45,000 had been expended in connection with the preparation and trial of the case. Additionally, the court noted that it still had the preemption issue under advisement.

At that stage of the trial, the court also ruled there was no merit to the plaintiffs’ claim that the defendant was guilty of willful and wanton misconduct; the court stated it would not instruct on that issue.

At the conclusion of all the evidence, the plaintiffs moved to strike the defendant’s evidence on the ground that primary negligence had been proved as a matter of law. The defendant renewed its previous motion to strike. The trial court overruled both motions, stating “there’s a strong likelihood of contributory negligence, but I’m not certain of that.”

After verdict, the court considered memoranda of law and oral argument on defendant’s motion to set aside. For the first time, during a hearing on the post-trial motion held three and one-half *166 months after verdict, the plaintiffs asserted that the defendant had waived its right to rely on the proposition that Wright was guilty of contributory negligence as a matter of law. After further briefing, the trial court, in a letter opinion, sustained the defendant’s motion. The court ruled that no waiver had occurred and that Wright was guilty of contributory negligence as a matter of law. In addition, the court ruled against the defendant on the preemption issue.

On appeal, the plaintiffs contend that the trial court erred in its ruling on the contributory negligence issue, erred in failing to find waiver, erred in refusing to instruct on willful and wanton negligence, and erred in excluding evidence that the defendant had actual notice that the crossing was ultrahazardous. The defendant assigned cross-error to the trial court’s refusal to strike the plaintiffs’ evidence on the contributory negligence issue both at the conclusion of the plaintiffs’ case-in-chief and at the conclusion of all the evidence. The defendant also assigned cross-error to the trial court’s refusal to hold that federal preemption applied.

Initially, we must dispose of the waiver issue, the focus of which is on the granting of Instruction IB. The issue arises in the following manner.

The sequence of the procedural events in this case is important to the consideration of waiver. During the fourth day of a five-day trial, after the trial court had denied the defendant’s motion to strike made at the conclusion of the plaintiffs’ case-in-chief, and in the midst of the presentation of the defendant’s evidence, the trial court commenced consideration of proposed instructions tendered by the parties. This was an effort to expedite the trial and to accommodate scheduling of some witnesses.

During this discussion, plaintiffs’ counsel tendered a two-paragraph instruction labelled “IB,” dealing with the burden o'f proof on the issue of contributory negligence and, in the second paragraph, stating that the defendant could not rely on contributory negligence as a defense if it was guilty of willful and wanton negligence.

Because of its previous decision not to instruct on willful and wanton negligence, the trial judge stated: “So paragraph one will stay in IB and that would be the only part I would give over objection.” Plaintiffs’ counsel said: “But, Judge, we want to offer it as is.” The court responded: “Oh, sure. I’m going to refuse it ... . Refuse the second paragraph.” A brief discussion ensued about *167 another instruction after which the trial judge asked one of defendant’s counsel: “Do you quarrel with Instruction IB, paragraph one?” to which counsel responded: “No, sir.”

Later, during the same interruption of the taking of evidence, Instruction IB had been retyped without the second paragraph and the trial judge distributed copies of the retyped instruction to counsel. The judge, addressing plaintiffs’ counsel said: “Now, other than the objections noted to my striking paragraph two, Mr. Phillips, you offer this?” Plaintiffs’ counsel answered: “Yes, sir.” The judge said: “I’ll give that then.” Addressing the defendant’s attorney, the judge said: “You don’t have any objection to it as given, do you, IB?” to which the defendant’s attorney responded: “No, sir. My objection was to the second paragraph.”

As given, Instruction IB provided:

“The Railroad claims contributory negligence as a defense. It has the burden of proving by the greater weight of the evidence that Riley Wright was negligent and that this negligence was a proximate cause of Riley Wright’s injuries. Contributory negligence may be shown by the Railroad’s evidence or by Riley Wright’s evidence.”

After this initial discussion of the instructions, the evidentiary portion of the trial continued, at the conclusion of which there was a further discussion of the instructions. When this discussion terminated, and before the trial court instructed the jury, the defendant renewed its motion to strike the plaintiffs’ evidence made at the conclusion of the plaintiffs’ case, one ground being that Wright was guilty of contributory negligence as a matter of law.

The plaintiffs argue that the “trial court erred in failing to hold that the defendant waived the defense of contributory negligence as a matter of law by failing to object to Instruction IB.” We do not agree. Waiver has not been established.

Recently, we addressed procedural waiver in a context similar to this case. In Weidman v. Babcock, 241 Va. 40, 400 S.E.2d 164 (1991), in which a party had endorsed a final order merely as “Seen,” we rejected a procedural waiver argument. There we said: “The main purpose of requiring timely specific objections is to afford the trial court an opportunity to rule intelligently on the issues presented, thus avoiding unnecessary appeals and reversals.” *168 Id. at 44, 400 S.E.2d at 167. We pointed out: “In addition, a specific, contemporaneous objection gives the opposing party the opportunity to meet the objection at that stage of the proceeding.” Id. (citing Hilton v. Fayen, 196 Va. 860, 866, 86 S.E.2d 40, 43 (1955)).

The sequence of the procedural events and the circumstances of the present case clearly demonstrate that the trial court was afforded the opportunity to rule intelligently on the issue of Wright’s contributory negligence. Likewise, plaintiffs were given adequate opportunity to address that issue.

From the beginning of this litigation, when the defendant pled the affirmative defense that Wright’s negligence was the sole proximate cause of the accident, the defendant consistently has maintained that no jury issue was presented on that question. This position was taken throughout the trial, including when the motions to strike were made during trial, one made after the discussions on the instructions, and in the motion to set the verdict aside. Taken in context, the responses of the defendant’s attorney clearly indicate that he voiced no objection to the form of Instruction IB, and did not indicate any waiver of the issue.

As we have said, the purpose of the waiver rule, as applied to procedural steps during a trial, as well as the purpose of our contemporaneous objection rule, Rule 5:25, mainly is to afford the trial court an opportunity to rule intelligently on the issues presented, thus avoiding unnecessary appeals and reversals. This is what this trial judge, for whose very benefit the rule is enforced, had to say in ruling there had been no waiver: “It was clear to me that the issue of contributory negligence was of paramount importance throughout the trial, and I believe it was spoken to at every meaningful stage of the trial.” Continuing, the judge said that when he overruled the defendant’s motions to strike, “I stated unequivocally that while I felt that the defendant was probably correct, the case would be submitted to the jury on the issue of contributory negligence and would be subject to further review by me, if necessary, after jury verdict.” The judge further stated, “Contrary to the language in Hilton v. Fayen, ... I do not believe that the defendant invited this court to commit error and now complains of it. For me to rule that defendant waived objection to the contributory negligence issue would require the harshest and most technically narrow interpretation of the law of waiver.” We are fully in accord with the trial court’s comments. See Jimenez v. Commonwealth, 241 Va. 244, 402 S.E.2d 678 *169 (1991); Smith v. Combined Ins. Co., 202 Va. 758, 120 S.E.2d 267 (1961).

The plaintiffs contend that the “situation presented by this appeal is indistinguishable from that in” Spitzli v. Minson, 231 Va. 12, 341 S.E.2d 170 (1986). We disagree; Spitzli is not controlling.

In Spitzli, a legal malpractice action seeking damages as the result of the defendant’s negligence in failing to register certain condominium units owned by the plaintiffs, this Court affirmed a judgment in favor of the plaintiffs. Relying on Hilton v. Faven, supra, and Godsey v. Tucker, 196 Va. 469, 84 S.E.2d 435 (1954), we held that the defendant waived “any contention that the trial court erred in not ruling as a matter of law upon the issues of contributory negligence and proximate cause.” Spitzli, 231 Va. at 18, 341 S.E.2d at 173. There, those issues were submitted to the jury “under instructions granted the plaintiffs without any objection from the defendant.” Id. at 17, 341 S.E.2d at 173. In that case, the defendant moved to strike the evidence both at the conclusion of the plaintiffs’ case and at the close of all the evidence, and moved to set aside the verdict in favor of the plaintiffs.

We analyze Spitzli against the background of the cases upon which we then relied. In Hilton, a defendant both agreed and failed to object to rulings of the trial court and to the granting of a crucial instruction. On appeal, the defendant contended that the trial court committed error in granting the instruction. This Court said that ‘ ‘parties cannot invite the court to commit an error, and then complain of it. Right or wrong, the instruction given in this case became the law of the case on that point, and was binding upon both the parties and the jury.” Hilton, 196 Va. at 867, 86 S.E.2d at 43. The Court also said that “when defendant failed to object to the instruction submitting the entire case to the jury, and failed to move the court to set aside the verdict and grant a new trial, she waived her right to assign error under Rule of Court 1:8 [now Rule 5:25].” Id. at 867, 86 S.E.2d at 43-44.

In Godsey, defendant contended on appeal that the trial court erred in refusing to set aside a verdict in a damage suit arising from a motor vehicle collision. The plaintiff husband, as personal representative of his wife’s estate, brought the action for his wife’s wrongful death in a collision between vehicles operated by the husband, in which the wife was riding, and the defendant. The defendant argued that the trial court should have set aside a verdict in favor of the husband because the husband was guilty of contributory *170 negligence and thus barred from participating in any recovery for his wife’s death. The trial court had granted an instruction permitting the jury to include the husband in the apportionment of the verdict. Noting that the defendant made no objection to the instruction, this Court said the “instruction, therefore, became the law of the case on that point’ ’ and that defendant ‘ ‘cannot now be heard to say that a verdict arrived at in accordance with it must be set aside.” Godsey, 196 Va. at 475, 84 S.E.2d at 439.

The consistent thread that runs through Spitzli, Godsey, and Hilton is that a litigant will not be permitted to invite a trial court to commit error, either through agreeing or failing to object, and then be permitted to successfully complain of such error on appeal. But that is not what happened here. This record affirmatively establishes, unlike the three cases just discussed, that the defendant did not invite the trial court to commit error. Indeed, after the discussion of the instructions and before the trial court charged the jury, the defendant renewed its motion to strike the plaintiffs’ evidence on the ground that Wright was guilty of contributory negligence as a matter of law. And, in none of the three cases reviewed, as here, was there a positive expression from the very person for whose benefit the rule is established, the trial judge, that the defendant had not invited error.

We turn now to the merits of the contributory negligence issue, the jury having settled the issue of primary negligence against the defendant. At trial, a defendant has the burden to prove by the greater weight of the evidence that the plaintiff was negligent and that such negligence was a proximate cause of the plaintiff’s injuries. Contributory negligence, however, may be shown by the defendant’s evidence or by the plaintiff’s own evidence.

On appeal, a defendant’s burden is heavier; the defendant must show that there is no conflict in the evidence on contributory negligence, and that there is no direct and reasonable inference to be drawn from the evidence as a whole to sustain a conclusion that the plaintiff was free from contributory negligence. Kelly v. Virginia Elec. & Power Co., 238 Va. 32, 39, 381 S.E.2d 219, 222-23 (1989).

As he approached the crossing, Wright “had the duty to look and listen with reasonable care; he did not have the absolute duty to discover the presence of the train, unless by so looking and listening he was bound to have discovered it.” Norfolk & W. Ry. Co. v. Greenfield, 219 Va. 122, 132, 244 S.E.2d 781, 786-87 *171 (1978). Repeatedly, we have said that a railroad track is a proclamation of danger and the operator of a vehicle approaching a grade crossing “is required to look and listen at a time and place when both looking and listening will be effective,” intelligently using both eyes and ears. Norfolk & W. Ry. Co. v. Epling, 189 Va. 551, 557, 53 S.E.2d 817, 820 (1949). Trains run on fixed tracks and their course cannot be altered; no such steel-bound limitation controls the movement of motor vehicles. Id. When a vehicle operator “drives blindly upon a grade crossing, whether his view is obstructed or unobstructed, and takes no precaution for his own safety and is injured, his negligence precludes recovery.” Id. Indeed, “the greater the danger at a particular crossing, the greater the vigilance which is required by the public highway traveler.” Greenfield, 219 Va. at 133, 244 S.E.2d at 787.

There is no conflict in the evidence on the issue of contributory negligence. And, there are no direct and reasonable inferences to be drawn from the whole evidence to sustain a conclusion that Wright was free of contributory negligence. Rather, when the evidence is viewed in the light most favorable to the plaintiffs, reasonable persons could not differ in concluding that Wright was guilty of negligence as a matter of law that proximately contributed to the accident and his injuries.

Wright was thoroughly familiar with the crossing, both as the result of living near it and from having traversed it in his truck on nine occasions during a two-day period before the accident. He was aware of the fact that he would have to rely on his senses of sight and hearing to be aware of an approaching train, because of the absence of automatically operated warning devices to remind him. He was aware of the limitations to sight and hearing posed by the configuration of the cab of his truck and by the angle at which Maddox Street ran southwest from Route 501. Yet, despite all these hazards confronting him, Wright drove his truck from a stopped position of safety onto the crossing directly in front of the train when its engine was less than ten feet away.

The expert testified that it was ‘ ‘impossible’ ’ for Wright to have heard or seen the train. But, he was not forced to approach the crossing with his right window closed, and presumably with his air conditioner and radio operating. He could have opened his window after his truck had been loaded and before he left the quarry, knowing the dangers to be encountered at the crossing. He could have moved onto Maddox Street and the crossing by making a wider *172 right turn, thus bringing his truck to an attitude with relation to the crossing that he could see clearly north along the track. Obviously, Wright did none of these things, and caused this unfortunate accident.

The only conclusion to be drawn from the whole evidence is that Wright either failed to look and listen with reasonable care, or if he did so look and listen, he failed to discover the immediate presence of the train. In either event, he was the architect of his own misfortune. Thus, we hold that the trial court properly set the verdict aside on the ground that Wright was guilty of contributory negligence as a matter of law.

In conclusion, we reject the plaintiffs’ contentions that the trial court erroneously refused to instruct on willful and wanton negligence, and that the trial court erroneously excluded evidence that the defendant had actual notice of the ultrahazardous nature of the crossing. The evidence was insufficient to support an instruction on willful and wanton misconduct. On the notice question, the plaintiffs sought to present data collected pursuant to a federal grade crossing safety program. Federal law specifically precludes use of such data in state and federal courts. 23 U.S.C. § 409 (Supp. 1992).

And, because we have ruled in favor of the defendant on the contributory negligence issue, we do not reach the federal preemption question.

Accordingly, we hold that the trial court committed no error, and the judgment below will be

Affirmed.

Justice BRISTER

delivered the opinion of the Court.

In this unusual medical malpractice case, both physician and patient were doc *652 tors. Each claimed the other was negligent, and a jury agreed both were. As the jury assessed slightly more fault to the plaintiff (51 percent) than the defendant (49 percent), the trial court entered a take-nothing judgment. 1

A divided court of appeals reversed and remanded for a new trial, disregarding the finding of the plaintiffs negligence because laymen generally have no duty to volunteer information during medical treatment. 2 But the plaintiff here was not a layman, and jurors judging his actions could consider his expertise, especially as he emphasized it throughout the trial. Because there was some evidence the plaintiff doctor failed to report a critical symptom when he should have, we reverse the court of appeals’ judgment and reinstate the jury’s verdict.

I. Background

This suit was brought by Dr. David Ax-elrad, a psychiatrist, against Dr. Richard Jackson, an internist. Like the court of appeals, we will refer only to the latter by his title to avoid confusion.

After months of intermittent abdominal cramps and diarrhea, Axelrad sought treatment from Dr. Jackson after an abrupt onset of acute pain. Dr. Jackson prescribed a laxative and enema for fecal impaction. As it turned out, Axelrad was suffering from diverticulitis. It is undisputed an enema should not be prescribed in such circumstances due to the risk of a perforated colon.

Returning home, Axelrad followed his doctor’s orders and immediately felt severe abdominal pain with nausea, rigors, and chills. His wife took him to an emergency room, and he was hospitalized for further testing. Based on those tests, another doctor operated two days later for what was thought to be appendicitis, but turned out to be diverticulitis and a perforated colon. A portion of the colon was removed and a temporary colostomy constructed. Axelrad’s subsequent course of treatment included surgery to reconnect the colon, complicated by a severe drug reaction.

While the foregoing is undisputed, the parties disagree about much else, including (1) what medical history Axelrad reported, (2) when colon perforation occurred, (3) whether it was caused by Axelrad’s disease or Dr. Jackson’s treatment, (4) why Dr. Jackson did not come to the emergency room, and (5) whether Axelrad’s course would have been different had Dr. Jackson’s treatment been different. But the only conflict relevant to this appeal is the first. Although he alleged several grounds of contributory negligence at trial, 3 Dr. Jackson now argues only that the court of appeals erred in disregarding evidence supporting one — that Axelrad neglected to report where his abdominal pain began.

The evidence showed that particular diseases are associated with pain in particular places in the abdomen — gallbladder disease in the right upper quadrant, appendicitis in the right lower quadrant, and diverticulitis in the left lower quadrant. While conceding a patient with diverticulitis should not be treated with enemas, Dr. Jackson testified he did not suspect diverticulitis as it is normally associated with fever, constipation, and pain in the left lower quadrant, while Axelrad reported no *653 fever, diarrhea, and pain throughout his abdomen.

A patient cannot, of course, be negligent because his symptoms fail to fit the usual pattern. But at trial, Axelrad insisted he told Dr. Jackson his pain started in the left lower quadrant. The latter flatly denied it, and argued Axelrad made this claim for the first time at trial. In none of the histories taken by medical personnel during his treatment did Axelrad ever report that his pain began in the left lower quadrant, nor did he say so at his pretrial deposition.

It was up to the jurors to resolve this conflict in the testimony. But as the issues were submitted in broad form, how they decided it depends on what presumption applies when jurors issue a split verdict like they did here.

II. Presumptions Concerning a Split Verdict

As we said in City of Keller v. Wilson, when there are conflicts in testimony we must presume “jurors decided all of them in favor of the verdict if reasonable human beings could do so.” 4 But we also noted that evidence “may support one part of a verdict but not another.” 5 Here, one version (that Axelrad reported where his pain began) supports the verdict against Dr. Jackson, while the other version (that he did not) supports the verdict against Axelrad. Reasonable jurors could not have believed both — Axelrad either did or did not report where his pain began. But because either answer would support part of the verdict, which one must we presume jurors believed?

The answer turns on the purpose of the presumption. It is not a prediction about what jurors actually did, as they often do not decide all conflicts one way. Here, for example, each party asserted several reasons why the other was negligent, so jurors did not have to agree on any one reason so long as they agreed on the result. 6

Instead, the presumption serves to protect jury verdicts from second-guessing on appeal. As a result, it operates in favor of any jury finding a litigant asks an appellate court to set aside. Here, the court of appeals set aside only one jury finding— that Axelrad was negligent. To ensure that the appellate court did not substitute its own judgment for that of the jury, we must presume the jury decided all conflicts in favor of this finding. 7

There are some cases in which this general rule will not apply. Courts cannot presume findings in favor of one part of a verdict if doing so creates an irreconcilable conflict with another. 8 But that is not the case here, as there was evidence Dr. Jackson was negligent even if Axelrad failed to report all his symptoms. Accordingly, we must presume jurors found Axelrad did not report where his abdominal pain began.

III. Do Patients Have a Duty to Cooperate in Diagnosis?

We have never addressed whether a patient’s failure to give an accurate medical *654 history can constitute negligence. But in Elbaor v. Smith, we recognized “a duty of cooperation which patients owe treating physicians who assume the duty to care for them.” 9 There, we held the plaintiffs refusal to take prescribed antibiotics should have been submitted as a question of contributory negligence, not just a failure to mitigate damages. 10 While Elbaor concerned cooperation with treatment rather than diagnosis, nothing in the opinion suggests a patient’s duty to cooperate applies to only one aspect of medical care.

A medical history, like many aspects of health care, is a cooperative venture requiring active participation by both doctor and patient. A patient’s statements to a doctor are critical, so critical they are protected by a privilege and made an exception to the hearsay rule. 11 In most cases, medical care will never even occur unless patients present themselves for treatment and say what hurts. Patients have no duty to diagnose themselves (as doctors are licensed and paid to do that), but neither can they demand treatment for a condition they refuse to disclose. All the trial experts agreed patients have a duty to cooperate in diagnosis by giving an accurate medical history.

Of course, there are cases in which a patient’s condition is so obvious that cooperation is unnecessary, or so debilitating that it is impossible. But such cases do not suggest there should be no duty to cooperate; they suggest only that a patient’s condition may discharge it. Like any reasonable-person standard, a patient’s duty to cooperate requires only ordinary care under all the surrounding circumstances. 12

The court of appeals attempted to limit a patient’s duty to cooperate in diagnosis to two instances: (1) responding truthfully to a physician’s questions, and (2) volunteering information known to be both significant and unknown to the doctor. 13 While we agree a patient’s duty of cooperation could arise in those situations, we do not think it can be limited to them.

We have rejected similar efforts to compartmentalize negligence in rigid categories. For example, we have discarded categories like imminent-peril, last-clear-chance, and assumption-of-the-risk in favor of a general submission of comparative negligence. 14 In products cases, we have refused to limit all allegations of a plaintiffs negligence to assumption of the risk or mere failure to discover a defect, as other kinds of negligence can fall in between. 15

*655 Given the infinite variety of patients, diseases, and circumstances surrounding medical care, an exhaustive list defining a patient’s duty to cooperate cannot be made. The specificity of a doctor’s questions and a patient’s responses will necessarily depend on many factors — the language skills of each, their specialized knowledge, the length of their relationship, the urgency of the situation, the frequency of previous examinations, the patient’s current condition, and so on.

Doctors are paid for their expertise, so diagnosis will always be primarily their responsibility. Thus, we agree with the court of appeals that in most cases an ordinary patient’s failure to report the origin of pain will be no evidence of negligence. But we disagree with the effort to confine this duty to precise categories, and turn next to whether this was an ordinary patient.

IV. Do Physicians As Patients Have a Different Duty?

The primary dispute between the parties in this appeal is whether Axelrad’s medical training should be taken into account in evaluating the history he gave. Axelrad did not object to the admission of such evidence; indeed he offered most of it himself. But he argues it cannot be considered in evaluating legal sufficiency because a physician as patient “should not be required to exercise any heightened degree of care above that of an ordinary person.”

This argument represents a misunderstanding of the nature of the physician-of-ordinary-prudence standard. It is not a higher standard of care (like strict liability, or the high-degree-of-care standard for common carriers 16 ) or a lower standard of care (like gross negligence, or the willful-and-wanton standard for emergency care 17 ). It is instead the ordinary-care standard, modified to instruct jurors that “under the same or similar circumstances” means they must consider a physician’s training. We said so in Hood v. Phillips, our seminal case defining a physician’s standard of care:

The burden of proof is on the patient-plaintiff to establish that the physician-defendant has undertaken a mode or form of treatment which a reasonable and prudent member of the medical profession would not have undertaken under the same or similar circumstances. The circumstances to be considered include, but are not limited to, the expertise of and means available to the physician-defendant, the health of the patient, and the state of medical knowledge. Unless the mode or form of treatment is a matter of common knowledge or is within the experience of the layman, expert testimony will be required to meet this burden of proof.... Although the trial court refused to submit an issue regarding ordinary negligence, [the] evidence would raise a question of fact for the jury on the issue of ordinary negligence and such issue should have been submitted. 18

The same point is made by the Restatement. Both the First and Second Restatements of Torts summarize the traditional reasonable-person standard as one taking into account both the knowledge *656 and skills of an ordinary person and “such superior attention, perception, memory, knowledge, intelligence, and judgment as the actor himself has.” 19 Both Restatements include an illustration specifically applying this standard to physicians, even when they are not acting in that capacity:

A is a physician. His child exhibits symptoms which A, because of his previous training and experience, should recognize as indicating that the child has scarlet fever. A fails to recognize them, and permits his child to go to school, where the child communicates the disease to B, another pupil. A is negligent in not recognizing the risk, although if he were a layman he might not be negligent. 20

This principle — that ordinary prudence under the same or similar circumstances includes a party’s expertise — is not limited to physicians. As Prosser and Keeton note, it applies to many other skills:

[I]f a person in fact has knowledge, skill, or even intelligence superior to that of the ordinary person, the law will demand of that person conduct consistent with it. Experienced milk haulers, hockey coaches, expert skiers, construction inspectors, and doctors must all use care which is reasonable in light of their superior learning and experience, and any special skills, knowledge or training they may personally have over and above what is normally possessed by persons in the field. 21

In the “expert skiers” case Prosser and Keeton mention, the federal Tenth Circuit noted that an expert-of-ordinary-prudence is merely an application of the reasonable-person standard, not a different one:

It would appear then that in order to satisfy the standard of care, a person having special knowledge must exercise a quantum of care which is commensurate with the circumstances, one of which is his or her special skill and training. An instruction of this kind is not easy to expound in a charge to a jury for the reason that it is capable of creating the impression that a double standard of care exists. In truth there is but one standard, that of reasonable prudence under the circumstances. The decision must be made on the basis of the surrounding circumstances, including the fact that the person involved is an expert. 22

*657 We have never applied the physician-of-ordinary-prudence standard to a plaintiffs negligence, but then we have never addressed a medical malpractice claim by a physician. Nor does it appear that any case addressing a patient’s failure to give an accurate medical history has ever done so. 23 But generally “[t]he rules which determine the contributory negligence of a plaintiff are ... the same as those which determine the negligence of the defendant.” 24 As jurors analyzing the “same or similar circumstances” must consider a physician’s special knowledge when a doctor is the defendant, it is hard to see why they should not do so when a doctor is the plaintiff.

Axelrad makes the same mistake in arguing that “the charge held Jackson to the standard of a prudent physician, but Axelrad to the standard of a prudent person.” The jury questions included a physician-of-ordinary-prudence charge as to Dr. Jackson and a person-of-ordinary-prudence charge as to Axelrad. As there was no objection, legal sufficiency must be examined by this charge. 25 But for the reasons already discussed, a charge asking whether Axelrad exhibited ordinary prudence under the same or similar circumstances at least allowed jurors to consider his training, even if it did not instruct them to do so. In its expert-skier case, the Tenth Circuit held a person-of-ordinary-prudence charge was not prejudicial on just this basis. 26 While a charge that prohibited jurors from considering Axel-rad’s special knowledge might require a different result, 27 this charge did not.

Here, jurors could hardly have overlooked Axelrad’s special knowledge, as he emphasized it throughout the trial. Axel-rad designated himself as a testifying expert, and gave several expert opinions to the jury. In the first minute he was on the stand, he opined that Dr. Jackson was “a bad doctor,” explaining that “I felt compelled to bring this lawsuit against him ... because he’s not a good doctor.” Axelrad emphasized to the jury that he had passed judgment on other doctors as a member of state medical boards in both California and Texas. He estimated giving more than 150 depositions as an expert in medical negligence cases. While his practice was limited to psychiatry, he denied any unfamiliarity with abdominal complaints, arguing that during his four years as an emergency room physician he had “a lot of opportunities to examine abdomens.” Having presented himself to jurors as a person with superior knowledge, he cannot complain that jurors might have taken him at his word.

Moreover, Axelrad insisted he had reported that his pain originated in the left lower quadrant, which he acknowledged was a classic sign of diverticulitis. As defense counsel put it with some embell *658 ishment in his opening argument, “our grandmothers could all diagnose diverticulitis if you came in and said, ‘I have left lower quadrant pain.’ ” Taking this position strengthened Axelrad’s case against Dr. Jackson if jurors credited it. But if they did not, it strengthened an inference that he failed to exercise ordinary care when he failed to mention it.

The court of appeals pointed out that Axelrad never admitted knowing the significance of where his abdominal pain started. 28 But of course litigants rarely admit negligence on their own part. The question here is whether there was evidence from which reasonable jurors could infer Axelrad either knew or should, have known he needed to report this information. 29

The court of appeals also found it implausible that a sick patient would fail to report a significant symptom, 30 but it is no more implausible than that a doctor would fail to avoid harming a patient and getting sued. The defense presented evidence that haste and impatience sometimes caused Axelrad to downplay his symptoms, fail to follow doctors’ orders, and testify to checkups that in fact never occurred. Whether plaintiffs or defendants, people sometimes make mistakes, and it is generally up to the jury to decide who did. 31

Again, there will be cases in which a patient is a doctor with no special knowledge of a particular disease, or so sick as to be unable to use it. But whether either was the case here was hotly disputed. While Dr. Jackson asked only general questions about Axelrad’s condition (“Tell me exactly what is going on”), we cannot say he was required to ask a fellow physician the same questions he would ask everyone else. Similarly, while most patients might not be expected to volunteer where the pain began, we cannot say Axel-rad was not required to say something more. As there was evidence from which jurors could have found both doctor and patient were at fault in diagnosing this situation, we hold the court of appeals erred in disregarding one part of the jury’s verdict.

Y. Other Points and Conclusion

Axelrad asserts two cross-points. In the first, he argues there was no evidence any failure to report where his pain began proximately caused his injuries. But Axelrad’s own expert testified “the only reasonable explanation” for the colon perforation and subsequent events was “the administration of that enema.” Dr. Jackson testified had he known Axelrad’s pain began in the left lower quadrant, he would have suspected diverticulitis and not prescribed an enema. Accordingly, jurors could have found a causal connection.

Second, Axelrad argues the trial court erred by admitting unreliable testimony by Dr. Mary Schwartz, a board certified pathologist who holds an endowed chair at Baylor Medical School, that tissue samples from Axelrad’s first surgery showed his bowel perforation had occurred before he ever called Dr. Jackson. While Dr. Schwartz admitted she was unfamiliar with the disease process of diverticulitis, we agree with the court of appeals’ detailed *659 analysis that her opinions were reliable, 32 and thus do not repeat them.

Accordingly, for the reasons stated above we reverse the court of appeals’ judgment and remand to that court for factual sufficiency review.

Opinion

SULLIVAN, J.

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

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

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

I

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

This rule, rooted in the long-standing principle that one should not recover from another for damages brought upon oneself (see Baltimore & P.R. Co. v. Jones (1877) 95 U.S. 439, 442 [24 L.Ed. 506, 507]; Buckley v. Chadwick (1955) 45 Cal.2d 183, 192 [288 P.2d 12, 289 P.2d 242]), has been the law of this state from its beginning. (See Innis v. The Steamer Senator (1851) 1 Cal. 459, 460-461; Griswold v. Sharpe (1852) 2 Cal. 17, 23-24; Richmond v. Sacramento Valley Railroad Company (1861) 18 Cal. 351, 356-358; Gay v. Winter (1867) 34 Cal. 153, 162-163; Needham v. S. F. &S.J. R. Co. (1869) 37 Cal. 409, 417-423.) Although criticized almost from the outset for the harshness of its operation, it has weathered numerous attacks, in both the legislative1 and the judicial2 arenas, seeking its amelioration or repudiation. We have undertaken a thorough reexamination of the matter, giving particular attention to the common law and statutory sources of the subject doctrine in this state. As we have indicated, this reexamination leads us to the conclusion that the “all-or-nothing” rule of contributory negligence can be and ought to be superseded by a rule which assesses liability in proportion to fault.

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

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

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

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

II

It is urged that any change in the law of contributory negligence must be made by the Legislature, not by this court. Although the doctrine of contributory negligence is of judicial origin—its genesis being traditionally attributed to the opinion of Lord Ellenborough in Butterfield v. Forrester (K.B. 1809) 103 Eng. Rep. 926—the enactment of section 1714 of the Civil Code7 in 1872 codified the doctrine as it stood at that date and, the argument continues, rendered it invulnerable to attack in the courts except on constitutional grounds. Subsequent cases of this court, it is pointed out, have unanimously affirmed that—barring the appearance of some constitutional infirmity—the “all-or-nothing” rule is the law of this state and shall remain so until the Legislature directs otherwise. The fundamental constitutional doctrine of separation of powers, the argument concludes, requires judicial abstention.

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

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

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

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

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

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

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

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

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

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

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

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

In view of all of the foregoing we think that it would indeed be surprising if the 1872 Legislature, intending to accomplish the marked departure from common law which the adoption of comparative negligence would represent, should have chosen to do so in language which differed only slightly from that used in the Field draft to describe the common law rule. (See fn. 12, ante; see also Buckley v. Chadwick, supra, 45 Cal.2d 183, 192-193.) It would be even more surprising if the Code Commissioners, in stating the substance of the intended change, should fail to mention the law of any jurisdiction, American or foreign, which then espoused the new doctrine in any form, and should choose to cite in their note the very statutes and decisions which the New York Code Commissioners had cited in support of their statement of the common law rule. (See fn. 12, ante, and accompanying text.) It is in our view manifest that neither the Legislature nor the Code Commissioners harbored any such intention—and that the use of the words “except so far as” in section 1714 manifests an intention other than that of declaring comparative negligence the law of California in 1872.15

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

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

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

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

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

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

Ill

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

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

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

*824The temptation for the jury to resort to a quotient verdict in such circumstances can be great. (See Schwartz, supra, § 17.1, pp. 275-279.) These inherent difficulties are not, however, insurmountable. Guidelines might be provided the juiy which will assist it in keeping focussed upon the true inquiry (see, e.g., Schwartz, supra, § 17.1, pp. 278-279), and the utilization of special verdicts18 or jury interrogatories can be of invaluable assistance in assuring that the jury has approached its sensitive and often complex task with proper standards and appropriate reverence. (See Schwartz, supra, § 17.4, pp. 282-291; Prosser, Comparative Negligence, supra, 41 Cal.L.Rev., pp. 28-33.)

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

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

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

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

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

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

We have concluded that the “pure” form of comparative negligence is that which'should be adopted in this state. In our view the “50 percent” system simply shifts the lottery aspect of the contributory negligence rule21 to a different ground. As Dean Prosser has noted, under such a *828system “[i]t is obvious that a slight difference in the proportionate fault may permit a recovery; and there has been much justified criticism of a rule under which a plaintiff who is charged with 49 percent of the total negligence recovers 51 percent of his damages, while one who is charged with 50 percent recovers nothing at all.”22 (Prosser, Comparative Negligence, supra, 41 Cal.L.Rev. 1, 25; fns. omitted.) In effect “such a rule distorts the very principle it recognizes, i.e., that persons are responsible for their acts to the extent their fault contributes to an injurious result. The partial rule simply lowers, but does not eliminate, the bar df contributory negligence.” (Juenger, Brief for Negligence Law Section of the State Bar of Michigan in Support of Comparative Negligence as Amicus Curiae, Parsonson v. Construction Equipment Company, supra, 18 Wayne L.Rev. 3, 50; see also Schwartz, supra, § 21.3, p. 347.)

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

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

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

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

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

The judgment is reversed.

Wright, C. J., Tobriner, J., and Burke, J.,* concurred.

MOSK,

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

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

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

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

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

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

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

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

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

CLARK, J.

I dissent.

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

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

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

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

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

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

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

McComb, J., concurred.

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

OPINION

DROWOTA, Justice.

In this personal injury action, we granted Plaintiff’s application for permission to appeal in order to decide whether to adopt a system of comparative fault in Tennessee. We are also asked to determine whether the criminal presumption of intoxication is admissible evidence in a civil case. We now replace the common law defense of contributory negligence with a system of comparative fault. Additionally, we hold that the criminal presumption of intoxication established by T.C.A. § 55-10-408(b) (1988) is admissible evidence in a civil case.

In the early morning darkness of November 2, 1986, Plaintiff Harry Douglas McIntyre and Defendant Clifford Balentine were involved in a motor vehicle accident resulting in severe injuries to Plaintiff. The accident occurred in the vicinity of Smith’s Truck Stop in Savannah, Tennessee. As Defendant Balentine was traveling south on Highway 69, Plaintiff entered the highway (also traveling south) from the truck stop parking lot. Shortly after Plaintiff entered the highway, his pickup truck was struck by Defendant’s Peterbilt tractor. At trial, the parties disputed the exact chronology of events immediately preceding the accident.

Both men had consumed alcohol the evening of the accident. After the accident, Plaintiff’s blood alcohol level was measured at .17 percent by weight. Testimony suggested that Defendant was traveling in excess of the posted speed limit.

Plaintiff brought a negligence action against Defendant Balentine and Defendant East-West Motor Freight, Inc. 1 Defendants answered that Plaintiff was con-tributorially negligent, in part due to operating his vehicle while intoxicated. After trial, the jury returned a verdict stating: “We, the jury, find the plaintiff and the defendant equally at fault in this accident; therefore, we rule in favor of the defendant.”

After judgment was entered for Defendants, Plaintiff brought an appeal alleging the trial court erred by (1) refusing to instruct the jury regarding the doctrine of comparative negligence, and (2) instructing the jury that a blood alcohol level greater than .10 percent creates an inference of *54 intoxication. The Court of Appeals affirmed, holding that (1) comparative negligence is not the law in Tennessee, and (2) the presumption of intoxication provided by T.C.A. § 55-10-408(b) (1988) is admissible evidence in a civil case.

I.

The common law contributory negligence doctrine has traditionally been traced to Lord Ellenborough’s opinion in Butterfield v. Forrester, 11 East 60, 103 Eng.Rep. 926 (1809). There, plaintiff, “riding as fast as his horse would go,” was injured after running into an obstruction defendant had placed in the road. Stating as the rule that “[o]ne person being in fault will not dispense with another’s using ordinary care,” plaintiff was denied recovery on the basis that he did not use ordinary care to avoid the obstruction. See 11 East at 61, 103 Eng.Rep. at 927.

The contributory negligence bar was soon brought to America as part of the common law, see Smith v. Smith, 19 Mass. 621, 624 (1824), and proceeded to spread throughout the states. See H.W. Woods, The Negligence Case: Comparative Fault § 1:4 (1978). This strict bar may have been a direct outgrowth of the common law system of issue pleading; issue pleading posed questions to be answered “yes” or “no,” leaving common law courts, the theory goes, no choice but to award all or nothing. See J.W. Wade, W.K. Crawford, Jr., and J.L. Ryder, Comparative Fault In Tennessee Tort Actions: Past, Present and Future, 41 Tenn.L.Rev. 423, 424-25 (1974). A number of other rationalizations have been advanced in the attempt to justify the harshness of the “all-or-nothing” bar. Among these: the plaintiff should be penalized for his misconduct; the plaintiff should be deterred from injuring himself; and the plaintiffs negligence supersedes the defendant’s so as to render defendant’s negligence no longer proximate. See W. Keeton, Prosser and Keeton On The Law Of Torts, § 65, at 452 (5th ed. 1984); J.W. Wade, supra, at 424.

In Tennessee, the rule as initially stated was that “if a party, by his own gross negligence, brings an injury upon himself, or contributes to such injury, he cannot recover;” for, in such cases, the party “must be regarded as the author of his own misfortune.” Whirley v. Whiteman, 38 Tenn. 610, 619 (1858). In subsequent decisions, we have continued to follow the general rule that a plaintiff’s contributory negligence completely bars recovery. See, e.g., Hudson v. Gaitan, 675 S.W.2d 699, 704 (Tenn.1984); Talbot v. Taylor, 184 Tenn. 428, 432, 201 S.W.2d 1, 3 (1935); Nashville Ry. v. Norman, 108 Tenn. 324, 333, 67 S.W. 479, 481 (1902); Railroad v. Pugh, 97 Tenn. 624, 627, 37 S.W. 555, 557 (1896); Postal Telegraph-Cable Co. v. Zopfi, 93 Tenn. 369, 373, 24 S.W. 633, 634 (1894); East Tennessee V. & G.R.R. v. Conner, 83 Tenn. 254, 258 (1885); Louisville & N.R.R. v. Robertson, 56 Tenn. 276, 282 (1872); Nashville & C.R.R. v. Carroll, 53 Tenn. 347, 366-67 (1871); Cogdell v. Yett, 41 Tenn. 230, 232 (1860).

Equally entrenched in Tennessee jurisprudence are exceptions to the general all- or-nothing rule: contributory negligence does not absolutely bar recovery where defendant’s conduct was intentional, see, e.g., Stagner v. Craig, 159 Tenn. 511, 514, 19 S.W.2d 234, 234-35 (1929); Memphis St. Ry. v. Roe, 118 Tenn. 601, 612-13, 102 S.W. 343, 346 (1907); where defendant’s conduct was “grossly” negligent, see, e.g., Ellithorpe v. Ford Motor Co., 503 S.W.2d 516, 522 (Tenn.1973); Carroll, 53 Tenn. at 366-67; where defendant had the “last clear chance” with which, through the exercise of ordinary care, to avoid plaintiff’s injury, see, e.g., Roseberry v. Lippner, 574 S.W.2d 726, 728 (Tenn.1978); Kansas City, M. & B.R.R. v. Williford, 115 Tenn. 108, 120-21, 88 S.W. 178, 181-82 (1905); Davies v. Mann, 152 Eng.Rep. 588 (1842); or where plaintiff’s negligence may be classified as “remote.” See, e.g., Arnold v. Hayslett, 655 S.W.2d 941, 945 (Tenn.1983); Street v. Calvert, 541 S.W.2d 576, 585 (Tenn.1976); Norman, 108 Tenn. at 333, 67 S.W. at 481; East Tennessee, V. & G. Ry. v. Hull, 88 Tenn. 33, 36, 12 S.W. 419, 419-20 (1889).

In contrast, comparative fault has long been the federal rule in cases involving *55 injured employees of interstate railroad carriers, see Federal Employers’ Liability Act, ch. 149, § 3, 35 Stat. 66 (1908) (codified at 45 U.S.C. § 53 (1988)), and injured seamen. See Death On The High Seas Act, ch. Ill, § 6, 41 Stat. 537 (1920) (codified at 46 U.S.C. § 766 (1988)); Jones Act, ch. 250, § 33, 41 Stat. 1007 (1920) (codified as amended at 46 U.S.C. § 688 (1988)). See generally V. Schwartz, Comparative Negligence § 1.4(A) (2d ed. 1986).

Similarly, by the early 1900s, many states, including Tennessee, had statutes providing for the apportionment of damages in railroad injury cases. See V. Schwartz, supra, at § 1.4. While Tennessee’s railroad statute did not expressly sanction damage apportionment, it was soon given that judicial construction. In 1856, the statute was passed in an effort to prevent railroad accidents; it imposed certain obligations and liabilities on railroads “for all damages accruing or resulting from a failure to perform said dut[ies].” Act of Feb. 28, 1856, ch. 94, § 9, 1855-56 Tenn. Acts 104. See generally J.W. Wade, supra, at 431-33. Apparently this strict liability was deemed necessary because “the consequences of carelessness and want of due skill [in the operation of railroads at speeds previously unknown] ... are so frightful and appalling that the most strict and rigid rules of accountability must be applied.” See East Tennessee & G.R.R. v. St. John, 37 Tenn. 524, 527 (1858); Note, Railroads — Precautions Act — Effect of 1959 Amendment, 28 Tenn.L.Rev. 437, 439 (1961). The statute was then judicially construed to permit the jury to consider “[njegligence of the person injured, which caused, or contributed to cause the accident ... in determining the amount of damages proper to be given for the injury.” Louisville & N.R.R. v. Burke, 46 Tenn. 45, 51-52 (1868). This system of comparative fault was utilized for almost a century until 1959 when, trains no longer unique in their “astonishing speeds,” the statute was overhauled, its strict liability provision being replaced by negligence per se and the common law contributory negligence bar. See Act of Mar. 10, 1959, ch. 130, § 2, 1959 Tenn.Pub. Acts 419; Note, supra, 28 Tenn. L.Rev. at 439.

Between 1920 and 1969, a few states began utilizing the principles of comparative fault in all tort litigation. See C. Mutter, Moving to Comparative Negligence in an Era of Tort Reform: Decisions for Tennessee, 57 Tenn.L.Rev. 199, 227 n. 127 (1990). Then, between 1969 and 1984, comparative fault replaced contributory negligence in 37 additional states. Id. at 228. In 1991, South Carolina became the 45th state to adopt comparative fault, see Nelson v. Concrete Supply Co., 303 S.C. 243, 399 S.E.2d 783 (1991), leaving Alabama, 2 Maryland, North Carolina, Virginia, and Tennessee as the only remaining common law contributory negligence jurisdictions.

Eleven states have judicially adopted comparative fault. 3 Thirty-four states *56 have legislatively adopted comparative fault. 4

II.

Over 15 years ago, we stated, when asked to adopt a system of comparative fault:

We do not deem it appropriate to consider making such a change unless and until a case reaches us wherein the pleadings and proof present an issue of contributory negligence accompanied by advocacy that the ends of justice will be served by adopting the rule of comparative negligence.

Street v. Calvert, 541 S.W.2d at 586. Such a case is now before us. After exhaustive deliberation that was facilitated by extensive briefing and argument by the parties, amicus curiae, and Tennessee’s scholastic community, we conclude that it is time to abandon the outmoded and unjust common law doctrine of contributory negligence and adopt in its place a system of comparative fault. Justice simply will not permit our continued adherence to a rule that, in the face of a judicial determination that others bear primary responsibility, nevertheless completely denies injured litigants recompense for their damages.

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. See Hanover v. Ruch, 809 S.W.2d 893, 896 (Tenn.1991) (citing cases). Indeed, our abstinence would sanction “a mutual state of inaction in which the court awaits action by the legislature and the legislature awaits guidance from the court,” Alvis v. Ribar, 85 Ill.2d 1, 52 Ill.Dec. 23, 421 N.E.2d 886, 896 (1981), thereby prejudicing the equitable resolution of legal conflicts.

Nor do we today abandon our commitment to stare decisis. While “[confidence in our courts is to a great extent dependent on the uniformity and consistency engendered by allegiance to stare decisis, ... mindless obedience to this precept can confound the truth and foster an attitude of contempt.” Hanover, 809 S.W.2d at 898.

*57 III.

Two basic forms of comparative fault are utilized by 45 of our sister jurisdictions, these variants being commonly referred to as either “pure” or “modified.” In the “pure” form 5 , a plaintiff’s damages are reduced in proportion to the percentage negligence attributed to him; for example, a plaintiff responsible for 90 percent of the negligence that caused his injuries nevertheless may recover 10 percent of his damages. In the “modified” form 6 , plaintiffs recover as in pure jurisdictions, but only if the plaintiffs negligence either (1) does, not exceed (“50 percent” jurisdictions) or (2) is less than (“49 percent” jurisdictions) the defendant’s negligence. See generally V. Schwartz, supra, at §§ 3.2, 3.5.

Although we conclude that the all-or-nothing rule of contributory negligence must be replaced, we nevertheless decline to abandon totally our fault-based tort system. We do not agree that a party should necessarily be able to recover in tort even though he may be 80, 90, or 95 percent at fault. We therefore reject the pure form of comparative fault.

We recognize that modified comparative fault systems have been criticized as merely shifting the arbitrary contributory negligence bar to a new ground. See, e.g., Li v. Yellow Cab Co., 13 Cal.3d 804, 532 P.2d 1226, 119 Cal.Rptr. 858 (1975). However, we feel the “49 percent rule” ameliorates the harshness of the common law rule while remaining compatible with a fault-based tort system. Accord Bradley v. Appalachian Power Co., 163 W.Va. 332, 256 S.E.2d 879, 887 (1979). We therefore hold that so long as a plaintiff's negligence remains less than the defendant’s negligence the plaintiff may recover; in such a case, plaintiff’s damages are to be reduced in proportion to the percentage of the total negligence attributable to the plaintiff.

In all trials where the issue of comparative fault is before a jury, the trial court shall instruct the jury on the effect of the jury’s finding as to the percentage of negligence as between the plaintiff or plaintiffs and the defendant or defendants. Accord Colo.Rev.Stat. § 13-21-111.5(5) (1987). The attorneys for each party shall be allowed to argue how this instruction affects a plaintiff’s ability to recover.

IV.

Turning to the case at bar, the jury found that “the plaintiff and defendant [were] equally at fault.” Because the jury, without the benefit of proper instructions by the trial court, made a gratuitous apportionment of fault, we find that their “equal” apportionment is not sufficiently trustworthy to form the basis of a final determination between these parties. Therefore, the case is remanded for a new trial in accordance with the dictates of this opinion.

V.

We recognize that today’s decision affects numerous legal principles surrounding tort litigation. For the most part, harmonizing these principles with comparative fault must await another day. However, we feel compelled to provide some guidance to the trial courts charged with implementing this new system.

First, and most obviously, the new rule makes the doctrines of remote contributory negligence and last clear chance obsolete. The circumstances formerly taken into account by those two doctrines will henceforth be addressed when assessing relative degrees of fault.

*58 Second, in cases of multiple tort-feasors, plaintiff will be entitled to recover so long as plaintiff's fault is less than the combined fault of all tortfeasors.

Third, today’s holding renders the doctrine of joint and several liability obsolete. Our adoption of comparative fault is due largely to considerations of fairness: the contributory negligence doctrine unjustly allowed the entire loss to be borne by a negligent plaintiff, notwithstanding that the plaintiffs fault was minor in comparison to defendant’s. 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. 7

Further, because a particular defendant will henceforth be liable only for the percentage of a plaintiff’s damages occasioned by that defendant’s negligence, situations where a defendant has paid more than his “share” of a judgment will no longer arise, and therefore the Uniform Contribution Among Tort-feasors Act, T.C.A. §§ 29-11-101 to 106 (1980), will no longer determine the apportionment of liability between codefendants.

Fourth, fairness and efficiency require that defendants called upon to answer allegations in negligence be permitted to allege, as an affirmative defense, that a nonparty caused or contributed to the injury or damage for which recovery is sought. In cases where such a defense is raised, the trial court shall instruct the jury to assign this nonparty the percentage of the total negligence for which he is responsible. However, in order for a plaintiff to recover a judgment against such additional person, the plaintiff must have made a timely amendment to his complaint and caused process to be served on such additional person. Thereafter, the additional party will be required to answer the amended complaint. The procedures shall be in accordance with the Tennessee Rules of Civil Procedure.

Fifth, until such time as the Tennessee Judicial Conference Committee on Civil Pattern Jury Instructions promulgates new standard jury instructions, we direct trial courts’ attention to the suggested instructions and special verdict form set forth in the appendix to this opinion.

VI.

The principles set forth today apply to (1) all cases tried or retried after the date of this opinion, and (2) all cases on appeal in which the comparative fault issue has been raised at an appropriate stage in the litigation.

VII.

The remaining issue involves Plaintiff’s assertion that the trial court imper-missibly instructed the jury as to the presumption of intoxication established by T.C.A. § 55-10-408(b) (1988). We find no error.

Section 55-10-408(b) provides that:

Evidence that there was, at the time alleged, ten-hundredths of one percent (.10%), or more, by weight of alcohol in the defendant’s blood, shall create a presumption that the defendant was under the influence of such intoxicant, and that his or her ability to drive was impaired thereby, sufficiently to constitute a violation of § 55-10-401 [the criminal statute prohibiting driving under the influence of an intoxicant].

The results of a properly conducted blood test indicating ten-hundredths of one percent or more in a person’s blood thus creates a presumption which assists a lay jury in determining whether a person was under the -influence of an intoxicant. If the evidence is not rebutted, a jury may then permissibly find that the person was under *59 the influence sufficiently to violate the criminal provisions regarding driving while intoxicated.

In Tennessee, violation of a penal statute is negligence per se, and is admissible evidence in a civil action. See Brookins v. The Round Table, Inc., 624 S.W.2d 547, 550 (Tenn.1981). However, a jury may not base its verdict on this per se negligence unless it affirmatively appears that the statutory violation was a proximate cause of the injury for which recovery is sought. See id.; Barr v. Charley, 215 Tenn. 445, 387 S.W.2d 614, 617 (1964). A trial court does not err when, as here, it instructs the jury accordingly.

For the foregoing reasons, the judgment of the Court of Appeals is reversed in part and affirmed in part, and the case is remanded to the trial court for a new trial in accordance with the dictates of this opinion. The costs of this appeal are taxed equally to the parties.

APPENDIX

The following instructions may be used in cases where the negligence of the plaintiff is at issue. These instructions are intended for two-party litigation. Appropriate modifications would be necessary for more complex litigation.

Suggested Jury Instructions

[The following instructions should be preceded by instructions on negligence, proximate cause, damages, etc.]

1. If you find that defendant was not negligent or that defendant’s negligence was not a proximate cause of plaintiff’s injury, you will find for defendant.

2. If you find that defendant was negligent and that defendant’s negligence was a proximate cause of plaintiff’s injury, you must then determine whether plaintiff was also negligent and whether plaintiff’s negligence was a proximate cause of his/her injury.

3. In this state, negligence on the part of a plaintiff has an impact on a plaintiff’s right to recover damages. Accordingly, if you find that each party was negligent and that the negligence of each party was a proximate cause of plaintiff’s damages, then you must determine the degree of such negligence, expressed as a percentage, attributable to each party.

4. If you find from all the evidence that the percentage of negligence attributable to plaintiff was equal to, or greater than, the percentage of negligence attributable to defendant, then you are instructed that plaintiff will not be entitled to recover any damages for his/her injuries. If, on the other hand, you determine from the evidence that the percentage of negligence attributable to plaintiff was less than the percentage of negligence attributable to defendant, then plaintiff will be entitled to recover that portion of his/her damages not caused by plaintiff’s own negligence.

5. The court will provide you with a special verdict form that will assist you in your duties. This is the form on which you will record, if appropriate, the percentage of negligence assigned to each party and plaintiff’s total damages. The court will then take your findings and either (1) enter judgment for defendant if you have found that defendant was not negligent or that plaintiff’s own negligence accounted for 50 percent or more of the total negligence proximately causing his/her injuries or (2) enter judgment against defendant in accordance with defendant’s percentage of negligence.

SPECIAL VERDICT FORM

We, the jury, make the following answers to the questions submitted by the court:

1. Was the defendant negligent?

Answer: _(Yes or No)

(If your answer is “No,” do not answer any further questions. Sign this form and return it to the court.)

2. Was the defendant’s negligence a proximate cause of injury or damage to the plaintiff?

Answer: _(Yes or No)

*60 (If your answer is “No,” do not answer any further questions. Sign this form and return it to the court.)

3. Did the plaintiffs own negligence account for 50 percent or more of the total negligence that proximately caused his/her injuries or damages?

Answer: _(Yes or No)

(If your answer is “Yes,” do not answer any any further questions. Sign this form and return it to the court.)

4. What is the total amount of plaintiff's damages, determined without reference to the amount of plaintiff’s negligence?

Amount in dollars: $_

5. Using 100 percent as the total combined negligence which proximately caused the injuries or damages to the plaintiff, what are the percentages of such negligence to be allocated to the plaintiff and defendant?

Plaintiff_%

Defendant_%

(Total must equal 100%)

Signature of Foreman

OPINION ON PETITION TO REHEAR

Plaintiff has filed a respectful and thoughtful Petition for Rehearing requesting argument on (1) the advisability of retaining joint and several liability in certain limited circumstances, and (2) the Opinion’s treatment of nonparty tort-feasors. Because such further guidance should await an appropriate controversy, the petition is accordingly denied.

Miller, Justice:

In these two cases, which have been consolidated on appeal, we are asked to re-examine and ameliorate the common law doctrine of contributory negligence.

In each case the plaintiff sought by way of an instruction to utilize the doctrine of comparative negligence to avoid the defense of contributory negligence. The ten *334 dered instruction was rejected and the usual contributory negligence instruction was given, with the jury returning a verdict for the defendant in each case.

I

The doctrine of contributory negligence is generally thought to have originated in the English common law in Butterfield v. Forrester, 11 East 60, 103 Eng. Rep. 926 (K.B. 1809), where the plaintiff, a horseman, was barred from recovery for his injuries when his horse ran into a pole. The pole had been left projecting onto the public road by the defendant, an adjoining landowner who was repairing his house. 1

There can be no doubt that the doctrine of contributory negligence was judicially created. W. Prosser, The Law of Torts (4th ed. 1971), p. 416, et seq.; Annot., 78 A.L.R.3d 339 (1977). The first occasion this Court had to discuss the doctrine of contributory negligence was in Snyder v. Pittsburgh, Cincinnati & St. Louis Ry. Co., 11 W. Va. 14 (1877). There, the Court did not apply the doctrine because it found it insufficiently supported by the facts.

In Morningstar v. Black and Decker Mfg. Co., _ W. Va. _, 253 S.E.2d 666 (1979), we analyzed certain constitutional and statutory language, and stated in Syllabus Point 2 this Court’s role in the development of common law principles:

*335 “Article VIII, Section 13 of the West Virginia Constitution and W. Va. Code, 2-1-1, were not intended to operate as a bar to this Court’s evolution of common law principles, including its historic power to alter or amend the common law.”

There is an almost universal dissatisfaction among leading scholars of tort law with the harshness of the doctrine of contributory negligence. 2 Neither intensive scholarship nor complex legal arguments need be advanced to demonstrate its strictness. A plaintiff can, if the jury is faithful to the contributory negligence instruction it receives, be barred from recovery if his negligence “contributed in the slightest degree” to the accident. Syllabus Point 7, Crum v. Ward, 146 W. Va. 421, 122 S.E.2d 18 (1961); Syllabus Point 3, Morton v. Baber, 118 W. Va. 457, 190 S.E. 767 (1937). Thus, our system of jurisprudence, while based on concepts of justice and fair play, contains an anomaly in which the slightest negligence of a plaintiff precludes any recovery and thereby excuses the defendant from the consequences of all of his negligence, however great it may be.

There have been several judicial modifications of the severity of contributory negligence. Under the doctrine of last clear chance, the plaintiff’s contributory negligence is excused if it can be shown that the defendant had the last opportunity to avoid the accident. Davies v. *336 Mann, 10 M.&W. 546, 152 Eng. Rep. 588 (1842); Barr v. Curry, 137 W. Va. 364, 71 S.E.2d 313 (1952). 3

The defense of contributory negligence is also not available where the defendant is found to be guilty of wanton and wilful misconduct. Stone v. Rudolph, 127 W. Va. 335, 32 S.E.2d 742 (1944); 57 Am. Jur. 2d Negligence § 305 (1971). This result is justified on what is roughly a comparative negligence theory, whereby the intentional tort of the defendant makes trivial the simple negligence of the plaintiff. Perhaps this same explanation may also be the basis for barring contributory negligence where the defendant is subject to strict liability under the doctrine of Rylands v. Fletcher, L.R. 3 H.L. 330 (1868), aff'g L.R. 1 Ex. 265 (1866); 57 Am. Jur. 2d Negligence § 310 (1971).

In some instances the doctrine of contributory negligence is not available where the defendant violates a statute clearly designed for the protection of the plaintiff. Pitzer v. M. D. Tomkies & Sons, 136 W. Va. 268, 67 S.E.2d 437 (1951); 57 Am. Jur. 2d Negligence § 310 (1971).

Legislatures in a number of states have enacted comparative negligence statutes of one variety or another. 4 The basic framework of these statutes is to permit a negligent plaintiff to recover so long as his negligence does not exceed some established percentage, usually 50 percent. 5 Such statutes require that his recovery be reduced by the percentage of contributory negligence found to exist.

*337 Four states — Alaska, 6 California, 7 Florida, 8 and Michigan 9 — have by judicial decision abolished the doctrine of contributory negligence and substituted in its place a “pure” comparative negligence concept. Under this principle, a plaintiff may recover regardless of the degree of his contributory negligence, but the jury is required to reduce his award in proportion to his contributory negligence.

Most commentators 10 and the four courts which have adopted the pure comparative negligence position are critical of the 50 percent approach, primarily on the basis that it involves the drawing of an arbitrary line beyond which contributory negligence can still be asserted as a bar to the plaintiffs action. The basis of this criticism is expressed in Li v. Yellow Cab Co., 13 Cal. 3d *338 804, 827-28, 119 Cal. Rptr. 858, 874-75, 532 P.2d 1226, 1242-43 (1975):

“We have concluded that the ‘pure’ form of comparative negligence is that which should be adopted in this state. In our view the ‘50 percent’ system simply shifts the lottery aspect of the contributory negligence rule to a different ground. As Dean Prosser has noted, under such a system ‘[i]t is obvious that a slight difference in the proportionate fault may permit a recovery; and there has been much justified criticism of a rule under which a plaintiff who is charged with 49 percent of a total negligence recovers 51 percent of his damages, while one who is charged with 50 percent recovers nothing at all.’ ” [Footnotes omitted]

The difficulty with the pure comparative negligence rule, however, is that it focuses solely on the hypothetical “plaintiff” without recognizing that once pure comparative negligence is embraced, all parties whose negligence or fault combined to contribute to the accident are automatically potential plaintiffs unless a particular party is found to be 100 percent at fault.

The fundamental justification for the pure comparative negligence rule is its fairness in permitting everyone to recover to the extent he is not at fault. Thus, the eye of the needle is “no fault,” and we are asked not to think about the larger aspect — the camel representing “fault.” It is difficult, on theoretical grounds alone, to rationalize a system which permits a party who is 95 percent at fault to have his day in court as a plaintiff because he is 5 percent fault-free.

The practical result of such a system is that it favors the party who has incurred the most damages regardless of his amount of fault or negligence. To illustrate, a plaintiff who has sustained a moderate injury with a potential jury verdict of $20,000, and who is 90 percent fault-free, may be reluctant to file suit against a defendant who is 90 percent at fault, but who has received severe injuries and whose case carries a potential of *339 $800,000 in damages from a jury verdict. In this situation, even though the defendant’s verdict is reduced by his 90 percent fault to $80,000, it is still far in excess of the plaintiff's potential recovery of $18,000. 11

While it can be conceded that there is an obvious injustice in the current contributory negligence rule which bars recovery no matter how slight the plaintiffs negligence, nevertheless the pure comparative negligence rule seems equally extreme at the other end of the spectrum. None of the courts which have adopted the pure comparative negligence rule have discussed the problems addressed above, and are content to rest their holdings on the following syllogism: (1) the contributory negligence rule is draconian in its operation; (2) the legislative solution of apportioning the plaintiffs fault up to 50 percent is an arbitrary line-drawing lottery; 12 (3) *340 therefore, the pure comparative negligence rule is fairer.

The Michigan court in Kirby v. Larson, 400 Mich. 585, 637-41, 256 N.W.2d 400, 425-27 (1977), besides relying heavily on Li v. Yellow Cab Co., supra, quotes at length from United States v. Reliable Transfer Co., 421 U.S. 397, 95 S.Ct. 1708, 44 L.Ed.2d 251 (1975), where the United States Supreme Court abandoned its divided damages rule in admiralty in favor of apportioned damages based on the respective fault of the involved vessels. It may be seriously questioned whether an admiralty rule involving damage to vessels has much relevance to the common law doctrine of contributory negligence. 13

The history of the common law is one of gradual judicial development and adjustment of the case law to fit the changing conditions of society. 14 We see no practical *341 benefit to be gained by the radical break from the common law’s tort-fault methodology that the pure comparative negligence rule requires. There are basic inequities inherent in the pure comparative negligence rule and its resulting singular emphasis on the amount of damages and insurance coverage as the ultimate touchstone of the viability of instituting a suit. 15

We do not accept the major premise of pure comparative negligence that a party should recover his damages regardless of his fault, so long as his fault is not 100 percent. Without embarking on an extended philosophical discussion of the nature and purpose of our legal system, we do state that in the field of tort law we are not willing 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. We do recognize that the present rule that prohibits recovery to the plaintiff if he is at fault in the slightest degree is manifestly unfair, and in effect rewards the substantial *342 ly negligent defendant by permitting him to escape any responsibility for his negligence.

Our present judicial rule of contributory negligence is therefore modified to provide that a party is not barred from recovering damages in a tort action so long as his negligence or fault does not equal or exceed the combined negligence or fault of the other parties involved in the accident. To the extent that our prior contributory negligence cases are inconsistent with this rule, they are overruled. 16

II

Some explanation is warranted as to how this new rule operates. We do not intend to consider exhaustively all the particular ramifications of the new rule, since they are best resolved within the particular factual framework of the individual case.

We do state what may be the obvious, that the sum of the negligence of all the parties to a given accident cannot exceed 100 percent. Furthermore, it will be the jury’s obligation to assign the proportion or degree of this total negligence among the various parties, beginning with the plaintiff.

The requirements of proximate cause have not been altered by the new rule. Consequently, before any party is entitled to recover, it must be shown that the negligence of the defendant was the proximate cause of the accident and subsequent injuries. The same is true of *343 contributory fault or negligence. Before it can be counted against a plaintiff, it must be found to be the proximate cause of his injuries.

The jury should be required by general verdict to state the total or gross amount of damages of each party whom they find entitled to a recovery, and by special interrogatory the percentage of fault or contributory negligence, if any, attributable to each party. After the verdicts have been accepted, the trial court will calculate the net amount by deducting the party’s percentage of fault from his gross award. To this extent, we follow the mechanics of the jury verdict award employed by the courts which have adopted pure comparative negligence, which is compatible with most of the statutory approaches. 17 V. Schwartz, Comparative Negligence (1974), § 17.4, at 282, et seq.

Our comparative negligence rule has no effect on the plaintiff’s right to sue only one of several joint tortfea-sors. However, as we pointed out in Haynes v. City of Nitro,_W. Va. _, 240 S.E.2d 544 (1977), the joint tortfeasor so sued may implead the other joint tortfea- *344 sors as third-party defendants. Haynes established that there is an inchoate right of contribution between joint tortfeasors in advance of judgment except where the act is malum in se. Thus, while the original defendant may have to respond only to the plaintiff for the latter’s damages, the defendant in the third-party action can have these damages apportioned among the third-party defendants.

Haynes enables a joint tortfeasor to institute a third-party action before judgment in order to bring in the other joint tortfeasors to have them share in any liability that he may be found to have with regard to the plaintiff. 18 Am. Jur. 2d Contribution § 35, et seq.; 18 C.J.S. Contribution § 11. 18 Haynes is designed to moderate the inequity which existed in our law that enabled the plaintiff to cast the entire responsibility for an accident on one of several joint tortfeasors by deciding to sue only him.

Neither our comparative negligence rule nor Haynes is designed to alter our basic law which provides for joint and several liability among joint tortfeasors after judgment. Hardin v. New York Central Railroad, 145 W. Va. 676, 116 S.E.2d 697 (1960); Muldoon v. Kepner, 141 W. Va. 577, 91 S.E.2d 727 (1956). Most courts which have considered the question after either a statutory or judicial adoption of some form of comparative negligence have held that the plaintiff can sue one or more joint tortfeasors, and if more than one is sued and a joint judgment is obtained, he may collect the entire amount from any one of the defendants. See, e.g., American Motorcycle Association v. Superior Court, 20 Cal.3d 578, 588-90, 146 Cal. Rptr. 182, 188-90, 578 P.2d 899, 905-906 (1978); Gazaway v. Nicholson, 190 Ga. 345, 348, 9 S.E.2d 154, 156 *345 (1940); Kelly v. Long Island Lighting Co., 31 N.Y.2d 25, 30, 334 N.Y.S.2d 851, 855, 286 N.E.2d 241, 243 (1972); Seattle First National Bank v. Shoreline Concrete, 91 Wash.2d 230, 588 P.2d 1308, 1313-1314 (1978); Chille v. Howell, 34 Wis. 2d 491, 498-500, 149 N.W.2d 600, 604-605 (1967); V. Schwartz, Comparative Negligence (1974), § 16.4, at 253. Under W. Va. Code, 55-7-13, joint tortfeasors may still obtain contribution after judgment.

Our comparative negligence rule does not change the right of a joint tortfeasor to obtain a pro tanto credit on the plaintiffs judgment for monies obtained by the plaintiff in a settlement with another joint tortfeasor. Tennant v. Craig, 156 W. Va. 632, 195 S.E.2d 727 (1973); Hardin v. New York Central Railroad, 145 W. Va. 676, 116 S.E.2d 697 (1960).

Since we have not completely abolished the doctrine of contributory negligence, we recognize that in appropriate circumstances the doctrine of last clear chance is still available. In the case of an intentional tort, contributory negligence is not a defense. Stone v. Rudolph, 127 W. Va. 335, 32 S.E.2d 742 (1944). Therefore, comparative negligence would not come into play, and the plaintiff would recover his damages undiminished by any contributory negligence.

By way of summary, we believe that moderating the harshness of our contributory negligence rule achieves a more satisfactory balance in the allocation of fault as it relates to recovery in our tort system. Our comparative negligence rule still bars the substantially negligent plaintiff 19 from obtaining a recovery, but it does permit the plaintiff who is more than slightly at fault to recover his injuries diminished by his percentage of contributory negligence. The rule is an intermediate position between *346 the absolute bar of the present contributory negligence rule and the almost total permissiveness of the pure comparative negligence rule. It represents a considerable improvement over the present rule without undertaking a radical change in our present fault-based tort system, as would be the case with pure comparative negligence.

Ill

Finally, we address the question of the applicability of the rule here announced to cases now pending. In Adkins v. Leverette,_W. Va._, 239 S.E.2d 496 (1977), we discussed in some detail the doctrine of retroactivity as applied to a constitutional issue in a criminal case. There, we recognized that: “We do not attempt to state a single answer to questions that may arise on the issue of retroactivity.” [_W. Va. at__, 239 S.E.2d at 499]

Adkins cited Falconer v. Simmons, 51 W. Va. 172, 41 S.E. 193 (1902), which followed the traditional common law view:

“An overruled decision is regarded not law, as never having been the law, but the law as given in the later case is regarded as having been the law, even at the date of the erroneous decision.” [Syllabus Point 2 in part]

However, even Falconer recognized an exception to this rule: Where a prior case has construed a statute and a valid contract has been entered into on reliance upon this construction of the statute, “the later decision does not retroact so as to invalidate such contract.” [Syllabus Point 2 in part]

In an unanimous opinion by Justice Cardozo in Great Northern Railway v. Sunburst Oil & Refining Co., 287 U.S. 358, 364, 77 L. Ed. 360, 366, 53 S.Ct. 145, 148 (1932), the United States Supreme Court concluded from a federal constitutional standpoint:

“We think the federal constitution has no voice upon the subject. A state in defining the limits of *347 adherence to precedent may make a choice for itself between the principle of forward operation and that of relation backward. It may say that decisions of its highest court, though later overruled, are law none the less for intermediate transactions.”

We do not find any provision in the West Virginia Constitution which addresses this point.

After Sunburst, the Court indicated in Linkletter v. Walker, 381 U.S. 618, 14 L. Ed. 2d 601, 85 S.Ct. 1731 (1965), that the general principles of retroactive or prospective application of an overruling decision are essentially the same. In Chevron Oil Co. v. Huson, 404 U.S. 97, 106-107, 30 L. Ed. 2d 296, 306, 92 S.Ct. 349, 355 (1971), the Court formulated the following test:

“In our cases dealing with the nonretroactivity question, we have generally considered three separate factors. First, the decision to be applied nonretroactively must establish a new principle of law, either by overruling clear past precedent on which litigants may have relied, see, e.g., Hanover Shoe v United Shoe Machinery Corp., supra, [392 U.S.] at 496, 20 L Ed 2d at 1243, or by deciding an issue of first impression whose resolution was not clearly foreshadowed, see, e.g., Allen v State Board of Elections, supra, [393 U.S.] at 572, 22 L Ed 2d at 20. Second, it has been stressed that ‘we must ... weigh the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation.’ Linkletter v. Walker, supra, [381 U.S.] at 629, 14 L Ed 2d at 608. Finally, we have weighed the inequity imposed by retroactive application, for ‘[w]here a decision of this Court could produce substantial inequitable results if applied retroactively, there is ample basis in our cases for avoiding the “injustice or hardship” by a holding of nopretroac-tivity.’ Cipriano v City of Houma, supra, [395 U.S.] at 706, 23 L Ed 2d at 652.”

*348 Moreover, despite Linkletter’s assertion that the same principles apply to both civil and criminal cases when decisions are overruled, the Supreme Court has at least shifted its emphasis, and in some cases created outright exceptions. See, e.g., Williams v. United States, 401 U.S. 646, 653, 28 L. Ed. 2d 388, 395, 91 S.Ct. 1148, 1152 (1971) (de-emphasizing good faith reliance as a basis for nonre-troactivity “[w]here the major purpose of new constitutional doctrine is to overcome an aspect of the criminal trial that substantially impairs its truth-finding function.”).

In short, as commentators have noted, while general guidelines can be evolved to determine whether retroactive or prospective application should be given to an overruling decision, it is difficult to etch them with precision so that they will fit all cases. 20

From a practical standpoint, it is perhaps unnecessary to refine the rules relating to retroactive application in great detail. It is an area of the law not frequently encountered, since the outright reversal of a prior case is a rather uncommon occurrence. While the need for accurate guidelines is important in the substantive areas of the law to provide trial courts and the practitioner with the essential element of predictability, it is of diminished importance with regard to the procedural question of whether an overruling case should be made fully retroactive.-

We observe initially that retroactivity considerations in a criminal case presenting constitutional issues involve different policy judgments which may not be present in the ordinary civil case. Certainly an important difference is that full retroactivity in a constitutional criminal case provides an opportunity for collateral at *349 tack by habeas corpus upon all criminal judgments, not merely those judgments for which direct appeal is still available. Furthermore, in the criminal area where federal constitutional rights are involved, as we observed in Adkins, it is likely that “the Supreme Court’s retroactivity rule is binding on the states.” [239 S.E.2d at 499]

In the present case, we are confronted with fashioning a retroactivity rule in regard to a civil case. There are various factors which should be taken into consideration in resolving the question of retroactivity. In any attempt to list factors, it should be stressed that not all factors always carry the same weight, for the weight of any given factor may vary with the facts of a given case.

Retroactivity of an overruling decision is designed to provide equality of application to the overruling decision because its new rule has been consciously designed to correct a flawed area of the law. The more egregious the error, the greater the need to extend the benefits of the overruling decision to others occupying the same status. To some extent, although the policy considerations are different, this initial consideration follows Falconer’s result. 21

Counterbalancing this factor are several considerations. First, the nature of the substantive issue overruled must be determined. If the issue involves a traditionally settled area of law, such as contracts or property as distinguished from torts, and the new rule was not clearly foreshadowed, then retroactivity is less justified. Second, where the overruled decision deals with procedural law rather than substantive, retroactivity ordinarily will be more readily accorded. Third, common law decisions, when overruled, may result in the overruling decision being given retroactive effect, since the substantive issue usually has a narrower impact and is likely to involve fewer parties. Fourth, where, on the other hand, substantial public issues are involved, aris *350 ing from statutory or constitutional interpretations that represent a clear departure from prior precedent, prospective application will ordinarily be favored. Fifth, the more radically the new decision departs from previous substantive law, the greater the need for limiting retro-activity. Finally, we will also look to the precedent of other courts which have determined the retroactive/prospective question in the same area of the law in their overruling decisions.

In the present case, we have altered our judicially created rule that the slightest degree of contributory negligence bars recovery. We have not, however, completely abolished the defense of contributory negligence. The issue falls within the field of tort law, which historically has not been a settled area of the law such as property or contracts, but has been subject to continual change by the courts and legislatures to meet the evolving needs of an increasingly mobile, industrialized and technological society. 22 The issue at hand primarily affects private parties and arises on a case-to-case basis with the cause of action controlled by the limited time period for actions for personal injuries, so that the beneficiaries of the new decision’s retroactivity are a limited class.

In the four states which have adopted pure comparative negligence, a rule which we consider to be a much more radical departure than our new rule, two states have accorded what amounts to full retroactivity to their decision. Kaatz v. State, 540 P.2d 1037, 1050 (Alas. 1975); Hoffman v. Jones, 280 So.2d 431, 439-40 (Fla. 1973). In Kirby v. Larson, 400 Mich. 585, 645, 256 N.W.2d 400, 429 (1977), the Michigan court limited the applicability of its pure comparative negligence rule “to the present case and to those cases filed after the date of this decision.” However, in Placek v. City of Sterling Heights, 275 N.W.2d 511, 521-22 (Mich. 1979), the court acknowledged *351 that the retroactivity rule of Kirby was too restrictive, and decided to extend complete retroactivity to its pure comparative negligence rule. 23

California, in Li v. Yellow Cab Co., 13 Cal.3d 804, 119 Cal. Rptr. 858, 532 P.2d 1226 (1975), accorded retroactivity of its pure comparative negligence rule to cases which had not reached the trial stage prior to the date of the Li opinion, but denied it as to other cases on appeal.

We thus find that the cases have generally extended retroactivity to the pure comparative negligence rule. See generally Annot., 78 A.L.R.3d 421 (1977). Under the foregoing analysis of retroactivity, we hold that the new rule of comparative negligence is fully retroactive.

For the foregoing reasons, the judgment in each case is reversed and the cases are remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.