*Bell, C. J. Harrell, Battaglia, Greene, McDonald, Eldridge, John C. (Retired, Specially Assigned) Raker, Irma S.(Retired, Specially Assigned) JJ.

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

Opinion by ELDRIDGE, J.

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

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

I.

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

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

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

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

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

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

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

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

II.

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

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

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

`One person being in fault will not dispense with another's using ordinary care for himself. Two things must concur to support this action, an obstruction in the road by the fault of the defendant, and no want of ordinary care to avoid it on the part of the plaintiff.' [11 East] at 61, 103 Eng. Rep. at 927."

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

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

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

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

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

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

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

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

The Harrison opinion further held that, when this Court is

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

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

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

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

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

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

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

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

III.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Battaglia, Greene, McDonald and Raker, JJ. Concur.

Dissenting Opinion by HARRELL, J., which Bell, C.J., joins

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

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

I. The History of Contributory Negligence in Maryland

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

The doctrine is of judicial "Big Bang" origin, credited generally to the 1809 English case of Butterfield v. Forrester (1809) 103 Eng. Rep. 926 (K.B.). In Butterfield, the court considered whether a plaintiff, injured while "violently" riding his horse on a roadway, by a pole negligently placed in the roadway, could recover damages. Denying recovery, Lord Ellenborough penned the first recognized incantation of contributory negligence, declaring, "One person being in fault will not dispense with another's using ordinary care for himself. Two things must concur to support this action, an obstruction in the road by the fault of the defendant, and no want of ordinary care to avoid it on the part of the plaintiff." Id. at 927.

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

Whatever the initial justifications attributed to its birth, contributory negligence has been a mainstay of Maryland law since its adoption in Irwin v. Sprigg, 6 Gill 200 (1847).^[7] Since that time, Maryland courts applied the doctrine of contributory negligence to bar recovery in negligence actions by at-fault plaintiffs. Exceptions evolved, however, to allow recovery in specific instances. For example, the defense of contributory negligence is not available against claimants under five years of age, Taylor v. Armiger, 277 Md. 638, 649, 358 A.2d 883, 889 (1976), in strict liability actions, Ellsworth v. Sherne Lingerie, Inc., 303 Md. 581, 597, 495 A.2d 348, 356 (1985), and in actions based on intentional conduct, Tucker v. State, Use of Johnson, 89 Md. 471, 486, 43 A. 778, 783 (1899); State Farm Mut. Auto. Ins. Co. v. Hill, 139 Md. App. 308, 316-18, 775 A.2d 476, 481-82 (2001). Additionally, the doctrine of last clear chance developed, Northern Cent. Ry. Co. v. State, Use of Price, 29 Md. 420, 436 (1868), to allow a plaintiff to recover, despite his or her contributory negligence, if he or she establishes "something new or sequential, which affords the defendant a fresh opportunity (of which he fails to avail himself) to avert the consequences of his original negligence."^[8]Sanner v. Guard, 236 Md. 271, 276, 203 A.2d 885, 888 (1964).

The all-or-nothing consequences of the application of contributory negligence have long been criticized nationally by scholars and commentators. See, e.g., Hilen v. Hays, 673 S.W.2d 713, 717 (Ky. 1984) ("A list of the critics of contributory negligence as a complete bar to a plaintiff's recovery reads like a tort hall of fame. The list includes, among others, Campbell, Fleming, Green, Harper and James, Dreton, Leflar, Malone, Pound and Prosser."); Prosser, Comparative Negligence, supra, at 469 ("Criticism of the denial of recovery was not slow in coming, and it has been with us for more than a century."); 2 Dan B. Dobbs, Paul T. Hayden & Ellen M. Bublick, The Law of Torts, § 218 at 763 (2d ed. 2011) (hereinafter "Dobbs") ("The traditional contributory negligence rule was extreme not merely in results but in principle. No satisfactory reasoning has ever explained the rule."). Many have argued instead for, and most states have adopted,^[9] a system of comparative negligence which apportions damages between a negligent plaintiff and a negligent defendant according to each party's relative degree of fault. Thus, under a comparative negligence system, a plaintiff's contributory negligence does not bar recovery, but rather reduces proportionately his or her damages in relation to his or her degree of fault.^[10] 2 Dobbs, supra, § 220 at 771.

This Court considered previously whether to replace the common law doctrine of contributory negligence with a system of comparative fault. See Harrison, 295 Md. 442, 456 A.2d 894; Pittsburg & Connellsville R.R. Co. v. Andrews, 39 Md. 329, 351 (1874) (noting that a doctrine requiring the relative fault of a plaintiff and defendant to be compared "has never been sanctioned in this State, but the exact contrary is the settled rule here"). We confronted this question most recently nearly thirty years ago. In Harrison, we considered whether to abrogate judicially contributory negligence in the midst of a nation-wide movement to transition to a system of comparative fault.^[11] We engaged first in a comparison of the historical and doctrinal principles of both contributory and comparative negligence. Harrison, 295 Md. at 449-53, 456 A.2d at 897-99. Although recognizing the growing trend toward adopting principles of comparative fault, id. at 456-58, 456 A.2d at 901-02, we noted, on the other hand, Maryland's long history of applying the doctrine of contributory negligence. Id. at 458, 456 A.2d at 902. See Irwin, 6 Gill at 205 (adopting the doctrine of contributory negligence); Pittsburg & Connellsville R.R. Co., 39 Md. at 351 (affirming Maryland's adherence to contributory, rather than comparative, negligence).

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

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

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

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

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

Unquestionably (as the Majority opinion agrees — see Maj. slip op. at 11-12), this Court has the power to change the doctrine of contributory negligence. Although the common law may be changed also by legislative act, Md. Const. Decl. of Rts. art. 5, we have stated frequently that it is "our duty to determine the common law as it exists in this State." Pope v. State, 284 Md. 309, 341-42, 396 A.2d 1054, 1073 (1979) (quoting Ass'n of Taxi Oprs. v. Yellow Cab Co., 198 Md. 181, 204, 82 A.2d 106, 117 (1951)). See also Tracey v. Solesky, 427 Md. 627, 639-40, 50 A.3d 1075, 1081-82 (2012) (quoting Ireland v. State, 310 Md. 328, 331-32, 529 A.2d 365, 366 (1987)); McGarvey v. McGarvey, 286 Md. 19, 27, 405 A.2d 250, 254 (1979). Contributory negligence is, and has always been, a common law doctrine of judicial origin in this State. See Irwin, 6 Gill 200. In the absence of codification by the Legislature, the defense of contributory negligence remains a dependent of the common law, and as such, is within the province of its parent, this Court, to abrogate or modify that to which it gave birth and nurtured. See, e.g., Price v. State, 405 Md. 10, 23, 949 A.2d 619, 627 (2008) (noting that because "the Maryland principles governing inconsistent verdicts are neither reflected in statutes nor in the Rules promulgated by this Court[,] . . . those principles . . . [are] part of Maryland common law" and subject to judicial modification); Jones v. State, 303 Md. 323, 337 n.10, 493 A.2d 1062, 1069 n.10 (1985) ("The common law rule may, within constitutional constraints, be changed or modified by. . . judicial decision. . . ."); Ireland, 310 Md. at 331, 529 A.2d at 366 ("[T]he determination of what part of th[e] common law is consistent with the spirit of Maryland's Constitution and her political institutions[] are to be made by this Court.").

In accordance with our authority to alter the common law, Petitioner James Coleman ("Coleman") urges this Court to abolish the doctrine of contributory negligence, arguing that it is a vestige of the past. In response, Respondent Soccer Association of Columbia ("SAC") and its Amici^[12] claim principally that this Court is bound by its decision in Harrison to retain the doctrine of contributory negligence; but, assuming that we are not bound by Harrison, Respondent contends that the abrogation of contributory negligence is more appropriate for legislative, rather than judicial, action, due to the complex policy considerations involved in adopting comparative negligence. I disagree. Principles of stare decisis do not require continued adherence to our decision in Harrison, nor does this Court owe continued deference to the General Assembly simply because of the difficult choices inherent in formulating a comparative negligence rule. Thus, I would abolish the doctrine of contributory negligence and replace it with comparative fault — "not because [it is] easy, but because [it is] hard." President John F. Kennedy, Address at Rice University on the Nation's Space Effort (12 Sept. 1962).^[13]

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

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

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

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

Shortly after our decision in Harrison, however, we abrogated the common law doctrine of interspousal immunity in negligence actions.^[14]Boblitz v. Boblitz, 296 Md. 242, 462 A.2d 506 (1983). In so doing, we distanced ourselves from our prior cases and characterized the decision as one appropriate for judicial action.^[15] We considered persuasive the evolution of society's conceptions regarding women and the trend toward abrogation in other states, concluding that the foundation of the doctrine no longer coincided with modern values. Thus, we determined that we could depart fairly from principles of stare decisis and overrule the doctrine's application in negligence actions as a "vestige of the past." Id. at 273-75, 462 A.2d at 521-22. We distinguished Harrison, however, as both possessing a history of legislative inaction on proposed bills (lacking in the context of interspousal immunity) and involving necessarily more complex issues, stating that Harrison represented an attempt to grant judicially that which "the Legislature repeatedly had rejected efforts to achieve legislatively." Id. at 274, 462 A.2d at 521. Yet, we emphasized that, despite our decision in Harrison, it remains well within the authority of this Court to abrogate an outmoded rule of the common law. Id. at 274, 462 A.2d at 522.

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

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

As noted above, the widespread acceptance of contributory negligence as a complete defense is attributed principally to (1) the desire to protect the nations' newly-developing industry from liability and plaintiff-minded juries, E.A. Turk, Comparative Negligence on the March, 28 Chi.-Kent L. Rev. 189, 201 (1950); 4 Harper, James & Gray, supra, § 22.1 at 328-30; and (2) "the concept prevalent at the time that a plaintiff's irresponsibility in failing to use due care for his own safety erased whatever fault could be laid at defendant's feet for contributing to the injury." Scott v. Rizzo, 634 P.2d 1234, 1237 (N.M. 1981) (citing F. Harper and F. James, Law of Torts, § 22.1 at 1198 (1956)). Neither of these justifications, however, carry weight in present-day Maryland. In today's society,^[16] there has been no need demonstrated to protect any "newly-developing" industry at the expense of injured litigants. Industry generally in this nation is no longer fledgling or so prone to withering at the prospect of liability. See, e.g., Alvis v. Ribar, 421 N.E.2d 886, 893 (Ill. 1981) ("There is no longer any justification for providing the protective barrier of the contributory negligence rule for industries of the nation at the expense of deserving litigants."); Frummer v. Hilton Hotels Int'l, Inc., 304 N.Y.S.2d 335, 341-42 (N.Y. Sup. 1969) ("Courts now do not feel any need to act as a protector of our nation's infant industries, for their infancy has long since passed. . . . In an age where a defendant may through various means, such as insurance, readily protect himself from a ruinous judgment, the solicitude of nineteenth century courts for defendants is certainly out of place. . . ."). Moreover, tilting the scales to favor industry is inconsistent with modern conceptions of justice, which focus instead on proportional responsibility and fundamental fairness. See Hilen v. Hays, 673 S.W.2d 713, 718 (Ky. 1984) ("It may well be that the 19th century judicial mind perceived of the need for courts to tilt the scales of justice in favor of defendants to keep the liabilities of growing industry within some bounds. But assuming such a rule was ever viable, certainly it no longer comports to present day morality and concepts of fundamental fairness." (internal citation and quotation marks omitted)); Robert H. Lande & James MacAlister, Comparative Negligence with Joint & Several Liability: The Best of Both Worlds, U. Balt. L. Rev. Online 1, 2 (2012) (noting that Maryland's system of contributory negligence "frustrate[s] the interests of justice as to the litigants"). Rather, the array of Amici lined up in support of the continuation of contributory negligence is populated by the entrenched and established business interests who seek to maintain an economic advantage.

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

Respondent and its Amici count as a strength of the doctrine of contributory negligence its inflexibility in refusing to compensate any, even marginally, at-fault plaintiff. They argue that, in so doing, contributory negligence encourages personal responsibility by foreclosing the possibility of recovery for potential, negligent plaintiffs, and thus cannot possibly be outmoded.^[17] To the contrary, that the doctrine of contributory negligence grants one party a windfall at the expense of the other is, as courts and commentators alike have noted, unfair manifestly as a matter of policy. See, e.g., Kaatz v. State, 540 P.2d 1037, 1048 (Alaska 1975) ("The central reason for adopting a comparative negligence system lies in the inherent injustice of the contributory negligence rule."); Hoffman v. Jones, 280 So.2d 431, 436 (Fla. 1973) ("Whatever may have been the historical justification for [the rule of contributory negligence], today it is almost universally regarded as unjust and inequitable to vest an entire accidental loss on one of the parties whose negligent conduct combined with the negligence of the other party to produce the loss."); Lande & MacAlister, supra, at 4 ("The `all or nothing' system [of contributory negligence], disconnected from a party's degree of fault, is unfair and counterintuitive."); Prosser, Comparative Negligence, supra, at 469 (characterizing contributory negligence as "outrageous" and an "obvious injustice" that "[n]o one has ever succeeded in justifying . . ., and no one ever will"). Moreover, if contributory negligence encourages would-be plaintiffs to exercise caution with respect to themselves, then so too does the doctrine of comparative fault by reducing the plaintiff's recoverable damages. Unlike contributory negligence, however, comparative fault deters also negligence on the part of the defendant by holding him or her responsible for the damages that he or she inflicted on the plaintiff. See Lande & MacAlister, supra, at 5-6 (noting that, although contributory negligence systems "burden[] only plaintiffs with the obligation to take precautions," comparative negligence provides a "mixture of responsibility" that is "the best way to prevent most accidents"); Prosser, Comparative Negligence, supra, at 468 ("[T]he assumption that the speeding motorist is, or should be meditating on the possible failure of a lawsuit for his possible injuries lacks all reality, and it is quite as reasonable to say that the rule promotes accidents by encouraging the negligent defendant."). Thus, Respondent's contention that contributory negligence encourages personal responsibility, and is therefore preferable to comparative negligence, is unpersuasive.

Respondent contends also that the foundation of contributory negligence remains strong because, as we said in Harrison, "Maryland cases do not reflect any general dissatisfaction with the contributory negligence doctrine." 295 Md. at 458, 456 A.2d at 898. That the courts of this State have applied uniformly the doctrine, however, does not mean that we did not recognize along the way its flaws.^[18]See Bozman, 376 Md. at 472, 830 A.2d at 457. For example, as Judge Eldridge noted recently, our retention of contributory negligence garnered extensive criticism — "few if any other legal principles have been criticized as much as this Court's continued adherence in negligence actions to the doctrine of contributory negligence and the Court's refusal to adopt comparative negligence." State v. Adams, 406 Md. 240, 332, 958 A.2d 295, 351 (2008) (Eldridge, J., dissenting), overruled by Unger v. State, 427 Md. 383, 48 A.3d 242 (2012). The Court of Special Appeals also noted similar criticism, calling the doctrine "harsh and pitiless," and noted that we are among the severe minority of states adhering still to it. See Preston Carter v. Senate Masonry, Inc., 156 Md. App. 162, 175, 846 A.2d 50, 58 (2004); see also Stewart v. Hechinger Stores Co., 118 Md. App. 354, 359, 702 A.2d 946, 949 (1997) ("Although we are aware of the often harsh consequences of Maryland's common law doctrine of contributory negligence, and that it has been abandoned by a vast majority of states in favor of some form of comparative negligence, we are in no position summarily to do so.").

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

Respondent argues, in effect, that there has not been a significant change in the state of law or society since Harrison, and therefore there is no reason to depart from stare decisis and reconsider whether the doctrine of contributory negligence should be retained in the State of Maryland. I could not disagree more. At the time Harrison was decided, the country was in the midst of a broad reform effort sweeping the nation. The doctrine of comparative fault was of fairly recent vintage at the time Harrison was filed, adopted in most states in the ten years prior to our decision. See Robert D. Cooter & Thomas S. Ulen, An Economic Case for Comparative Negligence, 61 N.Y.U. L. Rev. 1067, 1075 (1986) (noting that most states adopted comparative negligence in the 1970s and early 1980s). Essentially, Respondent contends that, because our decision in Harrison was made when the movement toward reform of negligence principles was well underway, this Court is constrained to retain the doctrine forever, having missed the single opportunity to get on board the train. Respondent's argument seems to suggest that, so long as there is some delay in abandoning an unjust law, the unjust law remains irretrievably an albatross tied around the neck of our common law, unless and until the Legislature decides to save us.^[19] As our decision in Bozman demonstrates, however, our authority to modify the common law and overrule prior decisions is not so limited.

Although only seven additional states have implemented comparative fault since Harrison, forty-six states now employ comparative fault.^[20] Comparative fault is no longer a trend or a doctrine of recent vintage, but rather is an established and integral doctrine to the negligence systems of nearly every state in the country. Other jurisdictions, most notably those that abrogated contributory negligence judicially, have decades of experience applying comparative fault — experience that, in large part, was lacking at the time we decided Harrison. The twelve states to abrogate contributory negligence by judicial decision provide examples of how comparative negligence is applied, how it impacts collateral doctrines and fault systems, and how it is applied in reality.^[21] In essence, this Court may foresee more clearly today potential impacts and complications, as well as the value of a comparative fault system, than was possible in 1983. Maryland is no longer at the crest of a wave of reform — instead, it has been left behind, one of the last bastions of contributory negligence in a world which has discarded it as unjust and outmoded. In my estimation, this qualifies certainly as a significant change warranting reconsideration of Harrison.

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

B. This Court Need Not Defer to Continued Legislative Inaction

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

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

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

Although the Harrison court opted to defer to the Legislature, the opinion in that case gives no indication that such deference was unlimited. No acknowledgment was advanced that we lack the authority to alter a long-standing common law rule where the Legislature declines to enact proposed legislation. Rather, we expressed that we are "particularly reluctant" to do so, and that we give "initial deference" to the Legislature when considering a change to long-standing common law principles. Harrison, 495 Md. at 460-61, 456 A.2d at 903-04 (emphasis added). Further, we did not characterize the inaction of the General Assembly as a conclusive, definitive declaration of public policy — to the contrary, we specifically stated that legislative inaction is "not conclusive" and merely "indicative of an intention to retain the doctrine of contributory negligence." Id. at 461, 456 A.2d at 904.

I acknowledge, of course, that legislative consideration of comparative negligence did not cease with our decision in Harrison. The General Assembly considered numerous comparative negligence bills since Harrison, but has not to this date reached an agreement that comparative negligence should become the law of this State by legislative act.^[22] The pace of consideration of comparative negligence bills slowed dramatically in recent years, however. Since 2003, the General Assembly considered the adoption of comparative negligence only once, see H.B. 110, 2007 Leg., 423d Sess. (Md. 2007), crossfiled with S.B. 267, 2007 Leg., 423d Sess. (Md. 2007), whereas in the ten years preceding Harrison (1974-83), the Legislature considered ten independent bills. See H.B. 1007, 1982 Leg., 388th Sess. (Md. 1982); H.B. 633, 1981 Leg., 387th Sess. (Md. 1981); H.B. 98, 1980 Leg., 386th Sess. (Md. 1980); H.B. 1484, 1980 Leg., 386th Sess. (Md. 1980); H.B. 1381, 1979 Leg., 385th Sess. (Md. 1979); H.B. 1386, 1979 Leg., 385th Sess. (Md. 1979); H.B. 2004, 1977 Leg., 383d Sess. (Md. 1977); H.B. 377, 1976 Leg., 382d Sess. (Md. 1976); S.B. 106, 1976 Leg., 382d Sess. (Md. 1976); H.B. 405, 1975 Leg., 380th Sess. (Md. 1975). No favorable committee action has been taken on a comparative negligence bill since 1988. See Department of Legislative Services, Negligence Systems: Contributory Negligence, Comparative Fault, and Joint and Several Liability 31 (2004) (hereinafter "Negligence Systems").

Declining to perpetuate unmindful deference to the Legislature on such a topic would not be without precedent. For example, as noted above, this Court stated repeatedly its intention to defer to legislative action on the topic of interspousal immunity before acting. See Stokes, 284 Md. at 692, 237 A.2d at 763; Ennis, 222 Md. at 543, 161 A.2d at 702; Fernandez, 214 Md. at 524, 135 A.2d at 889. Decades later, after noting the Legislature's continued stasis on the subject, we rescinded our deference and modernized an outdated common law rule. See Bozman, 376 Md. 461, 830 A.2d 450; Boblitz, 296 Md. 242, 462 A.2d 506.

Other states, too, abrogated judicially the doctrine of contributory negligence in spite of legislative inaction on proposed bills of like objective.^[23] For example, during the approximately fifteen years prior to the Kentucky Supreme Court's abrogation of contributory negligence in 1984, the Kentucky Legislature considered a comparative negligence bill "in most, if not all" legislative sessions. Hilen, 673 S.W.2d at 717. Yet, despite legislative consideration of (and inaction on) the issue, the Kentucky Supreme Court abrogated the doctrine, noting its systematic rejection, "first legislatively, and then judicially where the legislature has refused to act." Id. at 716-17. Similarly, the Missouri Supreme Court deferred repeatedly to legislative consideration and an opportunity to act for over five years, noting that ordinarily the policy considerations implicit in making such a doctrinal change were more appropriate for the legislature, particularly in light of increased legislative interest in the topic. See Steinman v. Strobel, 589 S.W.2d 293, 294 (Mo. 1979); Epple v. Western Auto Supply Co., 557 S.W.2d 253, 254 (Mo. 1977). Indeed, even after applying a nudge to the legislature by abandoning "active-passive negligence" in favor of comparative fault principles in cases involving multiple defendants, see Missouri Pac. R.R. Co. v. Whitehead & Kales Co., 566 S.W.2d 466 (Mo. 1978), the Missouri Supreme Court continued to express its preference for legislative action. Steinman, 589 S.W.2d at 294. By 1983, however, shortly after our decision in Harrison, the Missouri Supreme Court decided it had waited long enough and abrogated contributory negligence generally by judicial decision, stating, "We have remained quiescent more than five years while waiting for the legislature to act." Gustafson v. Benda, 661 S.W.2d 11, 15 (Mo. 1983).

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

Respondent also contends that, the abstract principle of deference to legislative inaction notwithstanding, replacing the doctrine of contributory negligence is a task more appropriate for legislative action because that potential deliberative and comprehensive decision-making process is suited better to resolution of the complex policy considerations involved in adopting comparative fault and its collateral impacts. The Harrison court expressed a particular reluctance to abrogate contributory negligence due to the nature of comparative negligence as not being "a unitary doctrine[,] but one which has been adopted by other states in either a pure or modified form." 295 Md. at 462, 456 A.2d at 904. Characterizing the choice between pure and modified comparative fault as "a policy issue of major dimension," this Court opted in 1983 to leave the choice to the General Assembly. Id. at 463, 456 A.2d at 905. Respondent contends that, because this decision implicates policy considerations and this Court is limited in its consideration of the impact on collateral doctrines and principles by the facts of this case,^[24] we should continue to refrain from adopting comparative negligence and disrupting long-settled law to avoid confusion and disarray in our courts. Moreover, Respondent and its Amici argue that abolishing the doctrine of contributory negligence is bad public policy. They contend that in so doing, we would inject chaos and uncertainty into an area of settled law, and increase litigation, insurance rates, and taxes.^[25]

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

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

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

III. This Court Should Adopt Pure Comparative Fault

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

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

Modified comparative fault, by contrast, considers relevant the proportion of the plaintiff's relative fault in varying degrees, depending on the standard adopted. Under such systems, a plaintiff "escapes the contributory negligence bar only if his share of the responsibility falls within a specified limitation." 4 Harper, James & Gray, supra, § 22.15 at 458. States that adopt a modified system generally choose one of two forms, allowing recovery of damages by a plaintiff reduced by the percentage of his or her own fault if either (1) the plaintiff's relative fault is less than the combined fault of all of the defendants;^[26] or (2) the plaintiff's relative fault is not greater than the combined fault of all of the defendants.^[27],^[28]

This Court should adopt for Maryland pure comparative negligence. Pure comparative negligence is favored almost universally by legal scholars and academics. It is "the fairest, most logical and simplest to administer of all available systems." Goetzman, 327 N.W.2d at 754. Because pure comparative negligence emphasizes the relationship of an individual's fault to the ultimate damages, "[n]either party is unjustly enriched[, and] [n]either party escapes liability resulting from his negligent acts or omissions." Alvis, 421 N.E.2d at 897. The shades of gray in jury determinations^[29] assigning proportions of fault is not, in a pure system, the difference between substantial recovery and no recovery at all. See Prosser, Comparative Negligence, supra, at 493-94 ("It is obvious that a slight difference in the proportionate fault [under a modified system] may permit a recovery; and there has been much quite justified criticism of a rule under which a plaintiff who is charged with 49 per cent of the total negligence recovers 51 percent of his damages, while one who is charged with 50 per cent recovers nothing at all."). Critics of pure comparative negligence call it a "radical break" from the principles of contributory negligence, and view a modified version instead as a logical evolution away from contributory negligence. See Bradley v. Appalachian Power Co., 256 S.E.2d 879, 885 (W.Va. 1979) (noting an unwillingness "to abandon the concept that where a party substantially contributes to his own damages, he should not be permitted to recover for any part of them"). Pure comparative negligence, however, more closely hews to the principle on which comparative fault systems are based — that liability should be commensurate with fault, and that individuals are responsible to the extent that their fault results in injury. See Goetzman, 327 N.W.2d at 753-54; Lande & MacAlister, supra, at 9 ("[O]nly a `pure' system protects all the deserving injured, is fair to defendants, optimally deters negligent behavior, and fosters the greatest sense of justice, fairness, and respect for the law on the part of juries.").

Moreover, although pure comparative negligence is the numerically minority choice nationally,^[30] it is the preferred version among states adopting comparative negligence by judicial decision. Nine of the twelve states adopting comparative negligence judicially have chosen a pure system,^[31] while three chose a modified version.^[32] Modified systems "reintroduce in large measure the very same all-or-nothing feature of contributory negligence that the remedy of comparative negligence is designed to overcome," by establishing a new set point at which recovery for a contributorily negligent plaintiff is barred. 4 Harper, James & Gray, supra, § 22.15 at 463; see also Li, 532 P.2d at 1242 (criticizing a modified system as simply shifting the "lottery aspect" of contributory negligence to a different set point); Alvis 421 N.E.2d at 898 ("There is no better justification for allowing a defendant who is 49% at fault to completely escape liability than there is to allow a defendant who is 99% at fault under the old rule to escape liability."). Maryland courts should apply a system of pure comparative fault in negligence actions.

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

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

Even after the abrogation of contributory negligence, the spirit of that doctrine will remain in some statutory provisions. For example, as Respondent and its Amici point out, the principles of contributory negligence are codified in various limited contexts in the Maryland Code. That remnants of a discarded common law doctrine may remain after its abolition does not provide, however, a reason to retain it in its entirety for all purposes. Cf. Bozman, 376 Md. at 488, 830 A.2d at 466 (acknowledging that despite the Court's abolition of the doctrine of interspousal immunity, remnants of the common law concept upon which the doctrine was based remain in Maryland law). We do not have the authority to overrule any principles of contributory negligence embedded currently in the statutory law of this State. See Md. Const. Decl. of Rts. art. 8. Thus, where the Legislature codified these principles as a complete bar to recovery in those limited contexts, it will continue to serve as a defense in those actions governed by the relevant statute, unless and until the General Assembly decides otherwise. See Md. Code (1977, 2009 Repl. Vol.), Transportation Article § 19-101(b) ("This State or a political subdivision of this State may use the defense of contributory negligence and assert the doctrine of last clear chance in an action brought or defense raised under this section."); Md. Code (1977, 2009 Repl. Vol.), Transportation Article § 19-102(c) ("This State or a political subdivision of this State may use the defense of contributory negligence and assert the doctrine of last clear chance in an action brought or defense raised under subsection (b) of this section."). Where the principles of contributory negligence have not been codified, however, the doctrine of pure comparative negligence, as the common law of this state, should apply henceforth.^[33]

Interestingly, concepts of contributory negligence will continue to be embedded in Maryland common law under a comparative fault system. The adoption of comparative fault abolishes the doctrine of contributory negligence as a complete bar to a plaintiff's recovery, but an individual's "contributory negligence" remains relevant as a consideration in determining his or her degree of fault in contributing to his or her injury. Thus, statutes that disallow presently certain conduct from consideration as evidence of contributory negligence may have continued applicability in a comparative fault system,^[34] while others may merit consideration for revision by the General Assembly to make their continued applicability in a comparative fault system, if any, more clear. See, e.g., Md. Code (1973, 2006 Repl. Vol.), Courts & Judicial Proceedings Article, § 3-1607 ("A defendant in an action under this subtitle may not raise a defense of assumption of risk or contributory negligence based on the use of a controlled dangerous substance by the deceased individual."); Md. Code (2007, 2012 Supp.), Human Services Article, § 7-704(b)(2) ("The failure of a blind or visually impaired pedestrian to carry a cane . . . does not constitute contributory negligence per se.").

Respondent and its Amici contend further that the adoption of comparative fault will have serious effects on the fiscal health of our State and local government. Because the unavailability of contributory negligence as an absolute bar to recovery will increase the number of "meritless claims presented," they argue, governments will face increased liability. The possibility that state and local governmental liability may increase following the adoption of comparative fault is by no means certain. There is no evidence, and indeed Amici provide none, that other states have experienced skyrocketing governmental liability and fiscal disaster following the adoption of comparative negligence. Moreover, the adoption of comparative fault by no means limits the reactive power of the General Assembly. To the contrary, the Legislature remains in the position to observe the actual impacts of a comparative fault system in Maryland and adopt or amend statutes accordingly, if it deems change necessary.^[35] Moreover, if, as Amici contend, the General Assembly intended the defense of contributory negligence to apply to actions brought under the Local Government Tort Claims Act ("LGTCA"), despite failing to codify expressly that defense, see Md. Code (1973, 2006 Repl. Vol.), Courts & Judicial Proceedings Article, § 5-303, the Legislature has the authority to amend explicitly the LGTCA to so provide.

Respondent and its Amici express particular concern over the continued vitality of the principles of joint and several liability, and the attendant issue of contribution among joint tortfeasors, in a comparative fault system. I recognize that, following the adoption of a comparative fault system, the continued vitality and fairness of the doctrine of joint and several liability merits specific attention. Indeed, most states adopting comparative negligence have revisited this issue, see, e.g., McIntyre, 833 S.W.2d at 58 ("Having thus adopted a rule more closely linking liability and fault, it would be inconsistent to simultaneously retain a rule, joint and several liability, which may fortuitously impose a degree of liability that is out of all proportion to fault."), although little consensus among states resulted.^[36] Because joint and several liability is not implicated by the facts of the present case, however, we reserve the evaluation and determination of whether a departure from common law joint and several liability is warranted, and, if so, in what circumstances.

We also recognize that, regardless of the impact of a reconsideration of the applicability of joint and several liability, there may exist at least a theoretical inconsistency between the Uniform Contribution Among Tortfeasors Act ("UCATA") as codified at Md. Code (1973, 2012 Supp.), Courts & Judicial Proceedings Article, §§ 3-1401-09, and a system of comparative negligence. While the touchstone of a system of comparative negligence is the imposition of liability in direct proportion to one's fault, the current provisions of the UCATA permit one joint tortfeasor to obtain contribution from another joint tortfeasor if he, she, or it has paid more than his, her, or its "pro rata share." Id. at § 3-1402. A pro rata share is understood generally, however, as an equal share of the common liability, rather than a share based on an individual's proportion of fault, and thus may be inconsistent with the foundations of comparative negligence.^[37]See Hashmi v. Bennet, 416 Md. 707, 719 n.13, 7 A.3d 1059, 1066 n.13 (2010) (quoting Lahocki v. Contee Sand & Gravel Co., 41 Md. App. 579, 616, 398 A.2d 490, 511 (1979), rev'd on other grounds sub nom, General Motors Corp. v. Lahocki, 286 Md. 714, 410 A.2d 1039 (1980)). Abiding future legislative action and/or appellate opinions, however, contribution among joint tortfeasors should continue to apply in pro rata shares.

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

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

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

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

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

V. Implementation of Pure Comparative Fault Should Apply Prospectively

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

Selective prospectivity applies generally in cases where we announce a change in the substantive common law, Polakoff, 385 Md. at 488 n.14, 869 A.2d at 850 n.14, rather than in cases changing procedural requirements in the trial courts, Owens-Illinois, Inc. v. Zenobia, 325 Md. 420, 470, 601 A.2d 633, 657-58 (1992), or overruling prior cases based on their erroneous interpretation of the law. See Polakoff, 385 Md. at 488, 869 A.2d at 850 (noting that a new interpretation of a statute will apply to "the case before the court and to all cases pending where the issue has been preserved for appellate review"); Houghton v. Cnty. Comm'rs of Kent Cnty., 307 Md. 216, 220, 513 A.2d 291, 293 (1986) ("[T]he question of whether a particular judicial decision should be applied prospectively or retroactively, depends in the first instance on whether or not the decision overrules prior law and declares a new principle of law."). In adopting comparative fault, this Court would "exercise[] [its] constitutional authority to change the common law." See Zenobia, 325 Md. at 469, 601 A.2d at 657. See, e.g., Tracey, 427 Md. at 639-42, 50 A.3d at 1081-83; Julian, 320 Md. at 9-11, 575 A.2d at 739; Kelley v. R.G. Industries, Inc., 304 Md. 124, 140, 497 A.2d 1143, 1150-51 (1985); Boblitz, 296 Md. at 273-75, 462 A.2d at 521-22. Unlike in Zenobia, where we adopted a standard of clear and convincing evidence to justify punitive damages in tort cases, 325 Md. at 469, 601 A.2d at 675, the doctrine of comparative fault is not a procedural rule. See Erie Ins. Exchange v. Heffernan, 399 Md. 598, 635, 925 A.2d 636, 658 (2007) (noting that the doctrine of contributory negligence relates to substantive tort law). Thus, because "[o]rdinarily decisions which change the common law apply prospectively, as well as to the litigants before the court,"^[38]Julian, 320 Md. at 10, 575 A.2d at 739 (citing Williams v. State, 292 Md. 201, 217, 438 A.2d 1301, 1309 (1981)), I would apply the doctrine of comparative negligence to all causes of action accruing subsequent to the filing of this opinion, and to the parties in the present case on remand. See Boblitz, 296 Md. at 275, 462 A.2d at 522.

Finally, I would dismiss the writ of certiorari issued in response to the cross-petition filed by the Soccer Association of Columbia, for the same reasons stated for a similar result in the Majority opinion. See Maj. slip op. at 4, n.3.

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

Concurring Opinion by GREENE, J., which Battaglia, McDonald and Raker, JJ., join.

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

We pointed out in Harrison v. Montgomery Cnty. Bd. of Educ., 295 Md. 442, 463, 456 A.2d 894, 905 (1983), that "the contributory negligence principle [is] the valid standard in Maryland negligence cases and that `any change in the established doctrine [was for] the Legislature.'" Majority Opinion, Slip Op. at 5. In support of this conclusion, we acknowledged that the determination of public policy is generally a legislative prerogative. See Harrison, 295 Md. at 460, 456 A.2d at 903 ("[The] declaration of the public policy of Maryland is normally the function of the General Assembly[.]"). This Court has stated that "[we are] reluctant to alter a common law rule in the face of indications that to do so would be contrary to the public policy of this State." Harrison, 295 Md. at 460, 456 A.2d at 903 (citing Condore v. Prince George's Cnty., 289 Md. 516, 532, 425 A.2d 1011, 1019 (1981)). In my view, this is sound public policy, especially in light of the long-standing adherence in this State to the rule of contributory negligence. Therefore, we should defer to the General Assembly under the circumstances of this case. To do otherwise, we cast ourselves as a Court attempting to impose our will upon the General Assembly.

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

Because I would prefer a system of comparative negligence is neither the test nor the justification for abandoning contributory negligence and adopting comparative negligence in its place. In this case our duty is to construe or interpret the law. It is not our task to invade the province of the General Assembly and enact into law a sweeping revision of an established rule of law. Here the dissenting opinion advocates for a system of pure comparative negligence. Some might, however, prefer a system of modified comparative negligence because of a belief that a plaintiff who was more than 50% at fault should not be entitled to any recovery. Whether Maryland becomes a pure comparative negligence state or a modified comparative negligence state should not be decided by this Court on the basis of the record before us. The General Assembly, in my view, is best suited to make that determination given the current status of our laws and its ability to conduct a comprehensive study of how the changes in the law will affect tort liability and insurance law in Maryland. In addition, as the dissenting opinion concedes, any change of the common law would not affect those statutes in Maryland that have enacted the concept of contributory negligence as a matter of law in some situations. See Dissenting Opinion, Slip. Op. at 41-42.

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

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

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

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

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

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

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

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

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

[2]The proffered jury instruction read as follows:

"A. Comparative Negligence — Liability

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

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

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

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

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

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

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

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

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

[7] The Court in Irwinstated, in Maryland's seminal invocation of contributory negligence, that it is

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

6 Gill at 205.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Page 371

        REVERSED AND REMANDED FOR NEW TRIAL.

        Townley Price, James E. Frasier, Steven R. Hickman, Frasier, Frasier & Hickman, Tulsa, for Appellant.

        Marthanda J. Beckworth, Walter D. Haskins, Atkinson, Haskins, Nellis, Boudreaux, Holeman, Phipps & Brittingham, Tulsa, for Appellee.

        STUBBLEFIELD, Judge.

        Plaintiff appeals from judgment on jury verdict entered in favor of defendant in a medical negligence action. Defendant doctor has appealed from the order assessing costs. Based on our review of the record on appeal and applicable law, we reverse.

        David Fritts was seriously injured in a one-vehicle accident, which occurred during the early morning hours of February 20, 1990. David Fritts and his friend, David Manus, had been drinking prior to the accident. There was some dispute about which one of the two men was driving the Fritts pickup truck at the time of the accident. In any event, the vehicle hit a tree at approximately seventy miles per hour and overturned.

        David Fritts sustained serious injuries as a result of the accident. He was diagnosed with a Lefort II fracture--literally all of his major facial bones were broken. He was placed in intensive care due to concern over the impact injury to his chest but later moved into a regular room.

        On February 25, 1990, Fritts was scheduled to undergo surgery for repair of his facial fractures. ¹ Although an oral surgeon was to perform the facial repairs, Defendant, Dr. Richard McKinne, an otorhinolaryngologist, was called on to assist the oral surgeon by performing a tracheostomy to allow Fritts to breathe during surgery. He was also to repair damage, if it existed, to Fritts' sinuses.

        As Dr. McKinne started the tracheostomy, Fritts began bleeding profusely from a cut or rupture of the innominate artery. The tracheostomy was not completed, and the rest of the surgery was delayed. Fritts lost a major amount of blood, failed to regain consciousness

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        Plaintiff Beth Ann Fritts, surviving spouse of David Fritts, deceased, filed this wrongful death action. She originally named other parties, but we are concerned here only with the claim against Dr. McKinne, which proceeded to jury trial.

        Plaintiff claimed that Dr. McKinne violated the standard of care in performing the tracheostomy in that he failed to properly identify and isolate the innominate artery. As a result, he cut the artery and then failed to promptly and properly arrest the loss of blood while waiting for a vascular or thoracic surgeon to arrive. She claimed that her husband died from complications associated with the massive blood loss.

        Dr. McKinne denied negligence. He further asserted that the problems encountered during the tracheostomy resulted from the fact that Fritts had an anomalous innominate artery--it was found up in his neck area, when normally it should have been in the chest. Dr. McKinne maintained that the artery was injured during the accident and that the injury was subclinical--not evident from physical examination or x-ray studies. He claimed that, when he started the tracheostomy and removed tissue from the trachea, the weakness and injury in the innominate artery resulted in a rupture of the blood vessel, which caused a "horrendous gush of blood."

        The Doctor also asserted a comparative negligence defense based on the contention that Fritts was injured while driving drunk or was drunk while riding in a vehicle with Manus, who also was drunk. ² In apparent response, Plaintiff filed a motion in limine, requesting the trial court to exclude any mention of Fritts' use of drugs or alcohol. Plaintiff admitted that Dr. McKinne should be allowed to introduce evidence about injury to her husband's artery during the accident. However, she asserted that evidence of her husband's intoxication, at the time of the accident, was not admissible to prove his negligence and was inflammatory.

        Dr. McKinne objected to the motion in limine claiming that such evidence was (1) relevant to the issue of Fritts' comparative negligence--"[his] injury arose in the automobile accident that he caused, because he was either driving drunk or elected to ride with somebody that [sic ] was driving drunk," and because "[his] negligence was the sole cause of his death;" and, (2) relevant to the issue of damages--he would present expert testimony that Fritts had a substantially diminished life expectancy due to his drug and alcohol use. The trial court denied the motion.

        At trial, over Plaintiff's objection, counsel for Dr. McKinne introduced, through various witnesses and exhibits, evidence regarding Fritts' past history of and treatment for substance abuse ³ and his consumption of alcohol on the night of his automobile accident. Indeed, the use of alcohol on the night of the accident and the history of substance abuse became the principal focus of the doctor's defense. Also over Plaintiff's objection, the trial court instructed the jury on the issue of Fritts' comparative negligence. These instructions included an instruction on "General Duty of Drivers," which stated that "[i]t is the duty of the driver of a motor vehicle to use ordinary care to prevent injury to himself or to other persons."

        The jury returned a verdict in favor of Dr. McKinne. The trial court entered judgment on this verdict and also awarded Dr. McKinne costs in the amount of $3,579.18. Plaintiff appeals from the judgment entered on jury verdict, and Dr. McKinne counter-appeals, claiming that the trial court erred in failing to award him the entire amount of requested costs--$11,092.29.

        Plaintiff raises two interrelated propositions of error on appeal. She claims that the trial court erred in admitting evidence regarding her deceased husband's history of substance abuse and in allowing the jury to

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        We first address the proposition regarding comparative negligence--whether it was proper for the trial court to allow the jury to consider the matter of the decedent's possible negligence in the accident which led to his hospitalization and medical treatment. To establish a case of medical negligence, Plaintiff was required to show that Dr. McKinne's actions were below the requisite standard of care and that such acts resulted in her husband's death. See Boxberger v. Martin, 552 P.2d 370 (Okla.1976); Robertson v. LaCroix, 534 P.2d 17 (Okla.Ct.App.1975). Dr. McKinne denied that his treatment of Fritts deviated in any manner from the appropriate standard of care. He defended against the allegations of negligence by contending that, due to Fritts' unusual anatomy and the resultant injury to his artery from the high speed impact, the rupture of the artery was inevitable. This was a proper and appropriate defense. However, we conclude that the interjection of the issue of Fritts' possible negligence in the automobile accident, a matter unrelated to the medical procedures, was a substantial error that removed the jury's consideration from the relevant issues and led to an erroneous excursion into irrelevant and highly prejudicial matters.

        There are limited circumstances under which reasonableness of patient conduct can be an appropriate consideration in medical negligence cases. For example, evidence of a patient's failure to reveal medical history that would have been helpful to his physician raises the issue of contributory negligence, particularly where the evidence also shows that the patient may have been advised of the importance of this information. Graham v. Keuchel, 847 P.2d 342, 358 n. 78 (Okla.1993). A patient's furnishing of false information about his condition, failure to follow a physician's advice and instructions, or delay or failure to seek further recommended medical attention also are appropriate considerations in determining contributory negligence. ⁴ Under certain circumstances, a patient's actions prior to seeking medical attention properly may be considered as evidence of contributory negligence. Sales v. Bacigalupi, 47 Cal.App.2d 82, 117 P.2d 399 (1 Dist.1941) (in action against physician for malpractice in treating infection to plaintiff's foot after she stepped on a nail, whether patient was contributorily negligent in her attempts to first treat foot herself was for jury). There is nothing akin to any of these factual situations in this case.

        Under the guise of a claim of contributory negligence, a physician simply may not avoid liability for negligent treatment by asserting that the patient's injuries were originally caused by the patient's own negligence. "Those patients who may have negligently injured themselves are nevertheless entitled to subsequent non-negligent medical treatment and to an undiminished recovery if such subsequent non-negligent treatment is not afforded." Martin v. Reed, 200 Ga.App. 775, 409 S.E.2d 874, 877 (1991).

        Thus, aside from limited situations, negligence of a party which necessitates medical treatment is simply irrelevant to the issue of possible subsequent medical negligence. Herein, Dr. McKinne testified that, at the time of the surgery, which was five days after the accident, "alcohol was not a problem." Yet, from the time of his opening statement, the principal focus of the doctor's counsel was on the behavior of the decedent before and leading up to the automobile accident:

[T]he evidence in this case, Ladies and Gentlemen, is going to be about a tragedy.

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        ....

[T]he evidence will be that Mr. Fritts made a choice to drink and drive, and that resulted in his death.

        ... And he'd had a problem with alcohol, and he'd had a problem with some substance abuse that had gone on for a number of years. And this problem kept coming back. But on February 20th of 1990 this problem came back with a vengeance.

        Counsel wound up his closing statement by asking the jury to consider:

        Where did the tragedy begin? Where did the negligence exist that took David Fritts' life? On February 20, 1990, David Fritts ... made a very bad decision. He made a decision to start drinking again, after he had been counseled at the Bill Willis Community Mental Health Center.... [H]e did something that each and every one of us ... all know is negligent. He made a decision to drink and drive. And that's a problem that our society is well confronted with, and that we have not been able to control....

        Thus, the trial shifted from one of medical malpractice to the assignment of negligence in the automobile accident.

        Counsel for Dr. McKinne continually focused on the cause of the automobile accident, involving highly inflammatory matters of intoxication and chronic alcohol abuse, instead of focusing on whether Fritts' injuries in the automobile accident resulted in his death. It is totally illogical to argue that, if Fritts had not been driving while intoxicated, he would not have required a physician. ⁵ In effect, that is just how Dr. McKinne's defense proceeded.

        Thus, we conclude that the submission of the issue of comparative negligence--decedent's conduct unrelated to his medical treatment--was error. We also find a strong probability that the erroneously given instructions misled the jurors and caused them to reach a result different from what they would have reached but for the flawed instructions.

        Next, we examine the purported error in admitting evidence of the decedent's drinking at the time of the automobile accident as well as evidence of his prior chronic substance abuse. Our prior discussion has pointed out the irrelevant and inflammatory nature of such evidence. However, Dr. McKinne asserts that Plaintiff waived any such error because she failed to object when such evidence was first addressed with a witness. Although we have found that the submission of the issue of comparative negligence was reversible error, we address this matter to provide guidance on new trial.

        Plaintiff filed a motion in limine to prohibit opposing counsel from referring to or offering evidence on these highly prejudicial matters, but the trial court overruled the motion. Thereafter, the evidence was the focus of Dr. McKinne's counsel in his opening statement, and Plaintiff's counsel did not object when the matter was first the subject of testimony. It is the rule that a motion in limine is advisory, and that to preserve an objection for appeal, an objection must be made when the evidence is submitted. Corbell v. State ex rel. Dept. of Transp., 856 P.2d 575 (Okla.Ct.App.1993).

        However, from our review of the record, we conclude that although counsel did not interpose contemporaneous objections to every inquiry regarding the irrelevant evidence, see Bauman v. International Harvester Co., 191 Okla. 392, 130 P.2d 287 (1942), there were numerous objections. Indeed, Plaintiff was granted a continuing objection, which negated the need of continued objections that would serve little additional purpose but to focus the jury's attention on the potentially prejudicial matters. We conclude that there was no waiver and that the issue

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        Here, much of the evidence and statements of counsel were, indeed, irrelevant and highly inflammatory. The fact of the automobile collision was certainly relevant--but the cause of that collision was not. Where alcohol was not a factor in the medical treatment, the fact that Fritts' injury may have been caused by his consumption of alcohol simply has no material bearing whatsoever on whether his eventual death was the result of negligent treatment by Dr. McKinne.

        Fritts' history of substance abuse is relevant to the issue of damages where there is evidence of its effect on probable life expectancy, and Plaintiff seeks damages based on loss of future earnings. However, like evidence of Fritts' drinking on the night of the accident, it was not proper for the jury to consider such evidence in regard to the claim of negligence against Dr. McKinne. Where evidence is admissible on a certain point only, the trial court should at least advise the jury to consider it on that point alone in order to assure that the evidence will not be applied improperly. St. Louis & San Francisco Ry. Co. v. Murray, 50 Okla. 64, 150 P. 884 (1915) (syllabus 3); see also American Biomedical Group, Inc. v. Norman Regional Hosp. Auth., 855 P.2d 1074, 1080 (Okla.Ct.App.1993). Here, where the evidence is extremely inflammatory, bifurcation of trial of the liability and damages issues would have avoided completely the possibility of prejudice from the evidence.

        We find that evidence of Fritts' intoxication and history of substance of abuse, along with repeated references to it by defense counsel, was sufficiently prejudicial to Plaintiff's case as to have prevented a full and fair trial of the issues. Furthermore, the admission of relevant but inflammatory evidence, admissible for only one issue, was reversible error in the absence of limiting instructions or bifurcated trial.

        As for Dr. McKinne's counter-appeal, the reversal of the judgment necessarily entails reversal of his award of costs based on prevailing party status. Therefore, we need not address his claim of inadequacy of the cost award.

        The judgment in favor of Dr. McKinne is REVERSED. The cause is remanded to the trial court with directions to grant a new trial.

        GOODMAN, P.J., and BOUDREAU, J., concur.

---------------

1 The surgery was performed five days after admission to allow swelling in his face to go down.

2 A blood sample taken from Fritts approximately three to four hours following the accident revealed an alcohol content of .20.

3 The trial court allowed Plaintiff a continuing objection to evidence of Fritts' substance abuse history. Evidence admitted included Fritts' treatment at a mental health center.

4 See Rochester v. Katalan, 320 A.2d 704 (Del.1974); LeBlanc v. Northern Colfax County Hosp., 100 N.M. 494, 672 P.2d 667 (Ct.App.1983); Musachia v. Rosman, 190 So.2d 47 (Fla.App. 3 Dist.1966).

5 In Eiss v. Lillis, 233 Va. 545, 357 S.E.2d 539, 543 (1987), the court rejected such an argument as "obviously wrong," noting that if it were accepted, in any case where the patient was responsible for events that led to his hospitalization, the treating physician could avoid liability for malpractice.

[479 N.Y.S.2d 202] Richard T. Farrell, Brooklyn, and Marvin Suss, New York City, for appellant.

Jeffrey S. Rovins and Salvatore A. Mazzoni, New York City, for respondents.

Rosario D'Apice, New York City, for Abdullah Kallash and another, defendants.

OPINION OF THE COURT

WACHTLER, Judge.

The question on this appeal is whether the 15-year-old plaintiff, who was injured while constructing a "pipe bomb", can maintain a tort action against the 9-year-old defendant who allegedly sold the firecrackers from which the plaintiff's companions extracted the gunpowder used to construct the bomb. The trial court granted summary judgment dismissing the cause of action against the defendant and his parents for alleged negligent supervision. The Appellate Division affirmed. The plaintiff has appealed by leave of this court.

The facts are in dispute; however, for the purposes of this appeal, dealing with a motion for summary judgment, we must accept the plaintiff's version of the events, as the lower courts have done.

On June 25, 1976 the plaintiff, George Barker, and two companions, Ayman and Anas Kallash, made a "pipe bomb" in the backyard of the Barker home in Brooklyn. At the time the plaintiff was nearly 15 years old and the Kallash brothers were 14 and 15, respectively. The bomb was made by filling a metal pipe, three or four inches long and one inch wide, with gunpowder.

The plaintiff concededly obtained the pipe from his father's home workshop where he also found the caps to seal it and a power drill he used to make a hole for the fuse. Although his father also used gunpowder to reload shotgun shells at home, the plaintiff contends that the gunpowder used in the bomb was supplied by the Kallash brothers who extracted it from firecrackers. He testified, at an examination before trial, that they had told him that the day before the incident they had purchased firecrackers from the defendant Daniel Melucci, Jr., who was not quite nine years old at the time. Indeed, the plaintiff testified that he had told the Kallash brothers where the firecrackers could be purchased. The injury occurred after the pipe had been capped at one end and the plaintiff, and one of the Kallash brothers, had poured the gunpowder into it. As the plaintiff was screwing the second cap on to the pipe it exploded, severely injuring his hands.

Plaintiff, through his father, brought an action against the Kallash brothers for their part in constructing the bomb, against Daniel Melucci, Jr., for allegedly selling the firecrackers to the Kallashes, and against Robert Judge, another infant, who allegedly sold the firecrackers to Melucci. In each instance the plaintiff also sued the infants' parents for negligent supervision.

After examination before trial, the Meluccis moved for summary judgment, principally on the ground that the plaintiff is barred from recovering for injuries sustained while engaged in wrongful or illegal conduct. The trial court granted the motion holding that the plaintiff "by participating in the making of a pipe bomb was [479 N.Y.S.2d 203] engaged in wrongful if not illegal conduct" and noted that the courts of this State have consistently refused "to allow a party to establish a claim based on his own wrongful conduct". The court also observed that the "fact that New York now has a comparative negligence or fault statute (CPLR 1411) would have no bearing upon this established public policy". After this motion was granted, the Kallashes moved to dismiss the cause of action against them on the same ground. Determination of that motion was stayed pending this appeal.

The Appellate Division affirmed noting that the "kind of activity in which plaintiff was engaged when injured cannot be passed off lightly as mere prankish or foolish conduct * * * Certainly, this case constitutes a striking illustration of the potential for grave harm to life and limb that such a dangerous instrumentality possesses, and is the most powerful of evidence in support of the conclusion that pipe bomb making, which has been condemned by the Penal Law, is beyond any doubt injurious to the public interest". The court also found no merit to the plaintiff's reliance on CPLR 1411 (91 A.D.2d 372, 377, 459 N.Y.S.2d 296).

At the outset a distinction must be drawn between lawful activities regulated by statute and activities which are entirely prohibited by law. In the first instance, it is familiar law that a violation of a statute governing the manner in which activities should be conducted, would merely constitute negligence or contributory negligence (see, e.g., Platz v. City of Cohoes, 89 N.Y. 219; Martin v. Herzog, 228 N.Y. 164, 126 N.E. 814; Corbett v. Scott, 243 N.Y. 66, 152 N.E. 467; Humphrey v. State of New York, 60 N.Y.2d 742, 469 N.Y.S.2d 661, 457 N.E.2d 767). Such cases would today be resolved under the rule of comparative negligence (CPLR 1411). However, when the plaintiff has engaged in activities prohibited, as opposed to merely regulated, by law, the courts will not entertain the suit if the plaintiff's conduct constituted a serious violation of the law and the injuries for which he seeks recovery were the direct result of that violation. In this latter instance recovery is denied, not because the plaintiff contributed to his injury, but because the public policy of this State generally denies judicial relief to those injured in the course of committing a serious criminal act (Reno v. D'Javid, 42 N.Y.2d 1040, 399 N.Y.S.2d 210, 369 N.E.2d 766). In the Reno case a woman who submitted to an illegal abortion could not recover for alleged negligence on the part of the physician performing the operation (Reno v. D'Javid, supra ). The rule is based on "the paramount public policy imperative that the law, whatever its content at a given time or for however limited a period, be obeyed" (Reno v. D'Javid, supra ). It extends the basic principle that one may not profit from his own wrong (Riggs v. Palmer, 115 N.Y. 506, 22 N.E. 188; Carr v. Hoy, 2 N.Y.2d 185, 158 N.Y.S.2d 572, 139 N.E.2d 531) to tort actions seeking compensation for injuries resulting from the plaintiff's own criminal activities of a serious nature.

The rule denying compensation to the serious offender would not apply in every instance where the plaintiff's injury occurs while he is engaged in illegal activity (see Restatement, Torts 2d, § 889, Comment b). Thus if the plaintiff in the example cited above had been injured in an automobile accident as a result of another's negligence, she would not be denied access to the courts merely because she was on the way to have the illegal operation performed (see, e.g., Restatement, Torts 2d, § 889, Comment b, Illustration 3). A complaint should not be dismissed merely because the plaintiff's injuries were occasioned by a criminal act (cf. Humphrey v. State of New York, 60 N.Y.2d 742, 744, 469 N.Y.S.2d 661, 457 N.E.2d 767, supra; Scurti v. City of New York, 40 N.Y.2d 433, 387 N.Y.S.2d 55, 354 N.E.2d 794). However, when the plaintiff's injury is a direct result of his knowing and intentional participation in a criminal act he cannot seek compensation for the loss, if the criminal act is judged to be so serious an offense as to warrant denial of recovery (Reno v. [479 N.Y.S.2d 204] D'Javid, supra ).^[1] Thus a burglar who breaks his leg while descending the cellar stairs, due to the failure of the owner to replace a missing step cannot recover compensation from his victims. As indicated the rule is grounded in public policy and holds that a claimant whose injuries are the direct result of his commission of what is judged to be serious criminal or illegal conduct is not entitled to recover. It involves preclusion of recovery at the very threshold of the plaintiff's application for judicial relief.

The plaintiff urges that this rule should not apply to his case for a number of reasons. Many of the arguments have theoretical appeal, as the dissent has demonstrated. None, however, are sufficient on the facts of this particular record to warrant sending the case to a jury.

First, he contends that his acts were not so egregious and that the case in essence involves nothing more than "a claim arising out of injuries suffered by one of several youngsters playing with fireworks shortly before the Fourth of July". It is true that not every violation of the law, no matter how petty or slight, will serve to completely resolve a question of tort liability (Corbett v. Scott, 243 N.Y. 66, 152 N.E. 467, supra ). A plaintiff will be precluded from seeking compensation where his injuries were a direct result of a serious violation of the law involving hazardous activities which were not justified under the circumstances. In the case before us the plaintiff's conduct may not fairly be characterized as a minor dereliction. By his own admission his injuries did not result from the mere use of firecrackers, but from his efforts to incorporate the gunpowder extracted from the firecrackers into a pipe bomb. Constructing a bomb is a far more dangerous activity not only to the maker, but to the public at large, and is treated as a far more serious offense under the law (compare Penal Law, § 265.02, subd. with Penal Law, § 270.00, subd. 2). Certainly if the plaintiff had decided to use the gunpowder in a gun, it could not be said that he was merely playing with firecrackers because the powder had originally been obtained from firecrackers. In addition, as the Appellate Division noted, the extent of the plaintiff's injuries, which were a foreseeable consequence of a mishap, testify to the serious nature of his conduct.^[2][479 N.Y.S.2d 205] Secondly, the plaintiff claims dispensation from the general rule because of his age, not quite 15 at the time of the incident. He notes that at that age he could not be convicted of a criminal offense (Penal Law, § 30.00, subd. 1) and urges that he should be granted a similar exemption from the rule precluding tort recovery for injuries resulting from an otherwise serious criminal act. Although the plaintiff may not be held criminally responsible for his conduct, the fact remains that constructing a bomb is prohibited by law (Penal Law, § 265.02, subd. ). Notably even the criminal law does not grant a youth complete immunity from responsibility for illegal acts (Family Ct. Act, art. 7). There is nothing in this record which would justify such an exemption in this civil action.

The plaintiff was not a toddler. And building a bomb is not such an inherently innocuous activity that it can reasonably be presumed to be a legally permissible act by an average 15 year old. In fact, despite extensive pretrial proceedings below the plaintiff never claimed that he was ignorant of the fact that his conduct was wrongful or that he was unaware of the potential danger it posed to himself and other members of the public. Thus in this case there is no reason why the plaintiff's status as a minor should exempt him from the policy which bars a person from seeking legal compensation for injuries directly sustained in the course of willing participation in an illegal act of a serious nature.^[3]

Finally the plaintiff urges that the rule precluding such recovery was abrogated when the Legislature adopted CPLR 1411 which provides that the "culpable conduct" of a plaintiff "shall not bar recovery, but the amount of damages otherwise recoverable shall be diminished in the proportion which the culpable conduct attributable to the claimant or decedent bears to the culpable conduct which caused the damages". The plaintiff contends that the term "culpable conduct" includes illegal conduct, thus permitting a plaintiff who was injured while violating the law to recover from those who may have contributed to his injury. Since this statute went into effect on September 1, 1975 (L.1975, ch. 69), prior to the injury sustained by the plaintiff in this case, he urges that it permits him to recover a proportionate share of his loss.

CPLR 1411 abolished the contributory negligence rule which had previously denied a plaintiff any recovery for a cognizable tort if it was shown that the plaintiff had in any way contributed to his own injury. It is a companion to CPLR 1401 which abolished the common-law rules of contribution which often precluded defendants from redistributing liability among themselves based upon the degree to which each of them had contributed to the plaintiff's injury (see, also, CPLR 1402). This latter statute essentially codified decisions of this court which had rejected the common-law rules on the ground that they depended upon outmoded notions which currently served as arbitrary or artificial obstacles to fair distribution of liability (Dole v. Dow Chem. Co., 30 N.Y.2d 143, 331 N.Y.S.2d 382, 282 N.E.2d 288; see, also, Schauer v. Joyce, 54 N.Y.2d 1, 5, 444 N.Y.S.2d 564, 429 N.E.2d 83). The history of these statutes shows that by referring to "culpable" conduct, rather than negligence, the Legislature intended to include tortious conduct generally, breaches of warranty and the like which had previously served to defeat otherwise cognizable causes of action for damages, or bar contribution among defendants (McKinney's Session Laws of N.Y., 1974, p. 1806; McKinney's Session Laws of N.Y., 1975, p. 1484).

The lower courts properly held that CPLR 1411 has no application to the rule precluding a plaintiff from recovering for injuries sustained as a direct result of his [479 N.Y.S.2d 206] own illegal conduct of a serious nature involving risk of physical harm. That rule is not based on the theory that a plaintiff, with an otherwise cognizable cause of action, cannot recover for an injury to which he has contributed (McKay v. Syracuse R.T. Ry. Co., 208 N.Y. 359, 101 N.E. 885). It rests, instead, upon the public policy consideration that the courts should not lend assistance to one who seeks compensation under the law for injuries resulting from his own acts when they involve a substantial violation of the law (see, e.g., Riggs v. Palmer, supra; Carr v. Hoy, supra). It simply means that proof of such an injury would not demonstrate any cause of action cognizable at law. The policy which applies to this case, has always existed independently from the rule of contributory negligence and its successor, comparative negligence. "The difficulties in drawing the line between those breaches of statutory duty which create or defeat a cause of action and those which may be merely a contributing cause of injury must be met as they present themselves" (Corbett v. Scott, 243 N.Y. 66, 71, 152 N.E. 467, supra).

The policy on which this rule rests has not diminished with time. Nor is there any indication in the history of the statute that the Legislature intended, by eliminating outmoded impediments to otherwise lawful recoveries, to create a new cause of action for those who suffer injuries as a direct result of voluntary participation in acts which the Legislature itself has defined as a serious offense involving risk of physical harm to the public. Thus we find no support for the pendulum theory suggested by the plaintiff and the dissenters, to the effect that the Legislature intended to redress the extreme restrictions of the past by going to opposite extremes in the future.

Accordingly, the order of the Appellate Division should be affirmed.

JASEN, Judge (concurring).

While I agree with the result reached by the majority, I write to express my view of the basis and the boundaries of the rule to be applied in this case.

To permit an action for injuries sustained as a consequence of the plaintiff's own grievous criminal conduct--the construction of a "pipe bomb"--would contravene fundamental public policy of this State. It is a basic principle recognized by the courts throughout this country that no person shall be permitted to take advantage of his own wrongdoing by predicating a legal or equitable claim upon his fraudulent, immoral or illegal conduct. (1 Am.Jur.2d, Actions, §§ 51, 52; 1 C.J.S., Actions, § 13.) This principle, most frequently asserted as a defense against enforcement of illegal contracts (see, e.g., Spivak v. Sachs, 16 N.Y.2d 163, 263 N.Y.S.2d 953, 211 N.E.2d 329; Stone v. Freeman, 298 N.Y. 268, 82 N.E.2d 571) or against recovery of insurance proceeds made payable by the criminal act of a beneficiary (see Riggs v. Palmer, 115 N.Y. 506, 22 N.E. 188; cf. Jacob v. Prudential Ins. Co., 256 App.Div. 884, 9 N.Y.S.2d 27, affd. 281 N.Y. 623, 22 N.E.2d 177) is applicable as well to actions arising in tort (74 Am.Jur.2d, Torts, § 45; 86 C.J.S., Torts, § 50; 59 N.Y.Jur., Torts, § 31) under the theory that no one should be rewarded for voluntary participation in a wrong or disobedience of the law. (See Prosser, Torts § 18; Restatement, Torts 2d, § 60.)

The mere commission of any offense, however, ought not to bar a plaintiff from seeking redress in the courts for any injury suffered while engaging therein. (Restatement, Torts 2d, § 889; cf. § 469.) This so-called "outlaw" doctrine of tort law--i.e., depriving a violator of the law of any rights against a tort-feasor--has long since been discarded by most, if not all, American jurisdictions (Prosser, Torts § 36; 2 Harper and James, Torts, § 17.6) and, indeed, was early rejected by this court (Carroll v. Staten Is. R.R. Co., 58 N.Y. 126; Platz v. City of Cohoes, 89 N.Y. 219; Rapee v. Beacon Hotel Corp., 293 N.Y. 196, 56 N.E.2d 548; see, generally, Davis, Plaintiff's Illegal Act as a Defense in Actions of Tort, 18 Harv.L.Rev. 505; [479 N.Y.S.2d 207] Thayer, Public Wrong and Private Action, 27 Harv.L.Rev. 317, 338-342; Note, 39 Harv.L.Rev. 1088). Rather, an individual's violation of a penal statute should preclude an action for injuries caused by a tort-feasor, only when his own criminal conduct was a contributing proximate cause (74 Am.Jur.2d, Torts, § 46; 86 C.J.S., Torts, § 28; 59 N.Y.Jur., Torts, § 31) and where that conduct can fairly be considered so egregious an offense that permitting recovery would be inimical to the public interest.

The requirement for a causal nexus between plaintiff's injury and his own misconduct is well settled. (See Corbett v. Scott, 243 N.Y. 66, 152 N.E. 467; Martin v. Herzog, 228 N.Y. 164, 126 N.E. 814; Platz v. City of Cohoes, supra; see, also, 74 Am.Jur.2d, Torts, § 46; 86 C.J.S., Torts, § 28; Beggerly v. Walker, 194 Kan. 61, 397 P.2d 395; Gaines v. Wolcott, 119 Ga.App. 313, 167 S.E.2d 366; Baskett v. Banks, 186 Va. 1022, 45 S.E.2d 173.) On the other hand, the requirement that the criminal conduct be particularly egregious has not so frequently or unambiguously been applied and indeed, until today, the requirement has not been unequivocally stated. Nevertheless, it is well supported in the past decisions of this court in which it has oft been repeated in both tort and contract cases. (See, e.g., Corbett v. Scott, supra, 243 N.Y. at pp. 69-70, 152 N.E. 467; Platz v. City of Cohoes, supra, at pp. 222-223; Carroll v. Staten Is. R.R. Co., supra, at p. 137; see, also, McConnell v. Commonwealth Pictures Corp., 7 N.Y.2d 465, 199 N.Y.S.2d 483, 166 N.E.2d 494; Flegenheimer v. Brogan, 284 N.Y. 268, 30 N.E.2d 591; Tracy v. Talmage, 14 N.Y. 162; Fellner v. Marino, 4 Misc.2d 16, 158 N.Y.S.2d 24.)

This court early distinguished itself from other jurisdictions which held that the right to recovery in tort was defeated whenever the injury was sustained while the plaintiff was engaged in unlawful conduct, regardless of its nature. This court took the contrary view that plaintiff's misconduct must have been sufficiently grievous to justify such a result and, consequently, plaintiffs in our courts have been entitled to a cause of action despite their misconduct when it was not of the kind that "usually results in injury" (Platz v. City of Cohoes, supra, at p. 223) or "not per se * * * dangerous" (Corbett v. Scott, supra, 243 N.Y. at p. 70, 152 N.E. 467) or not "a grave offence against the State" (Carroll v. Staten Is. R.R. Co., supra, at p. 137; see, also, Scurti v. City of New York, 40 N.Y.2d 433, 387 N.Y.S.2d 55, 354 N.E.2d 794; Connolly v. Knickerbocker Ice Co., 114 N.Y. 104, 21 N.E. 101).

In deciding such cases, this court has consistently examined the plaintiff's wrongdoing to determine "whether * * * recovery * * * should be denied for the sake of public interests" (Flegenheimer v. Brogan, supra, 284 N.Y. at p. 272, 30 N.E.2d 591) and has held that the aid of the courts should be barred only when plaintiff's actions were "so far against the public good"--e.g., clearly inimical to the " 'health, welfare and safety of the people of the state' " (id., at p. 273, 30 N.E.2d 591) or "gravely immoral and illegal" (McConnell v. Commonwealth Pictures Corp., 7 N.Y.2d, at p. 471, 199 N.Y.S.2d 483, 166 N.E.2d 494). This requirement is dictated by fundamental public policy that the courts of this State shall not honor claims founded on wrongdoing that is morally reprehensible, heinous, or gravely injurious to the public interests (see id., at pp. 469-471, 199 N.Y.S.2d 483, 166 N.E.2d 494; Flegenheimer v. Brogan, supra, 284 N.Y. at p. 272, 30 N.E.2d 591; Tracy v. Talmage, supra, at p. 181; Jacob v. Prudential Ins. Co., supra; Fellner v. Marino, supra, 4 Misc.2d at p. 26, 158 N.Y.S.2d 24). Clearly, considerations of public policy should bar an arsonist, rapist or one engaged in similarly reprehensible misconduct from bringing an action for injuries resulting from the victim's or accomplice's carelessness.

Indeed, these same principles of public policy were once elegantly expressed in another context by Justice Brandeis: "The door of a court is not barred because the plaintiff has committed a crime. The confirmed criminal is as much entitled to redress as his most virtuous fellow citizen; no record of crime, however long, makes [479 N.Y.S.2d 208] one an outlaw. The court's aid is denied only when he who seeks it has violated the law in connection with the very transaction as to which he seeks legal redress. Then aid is denied despite the defendant's wrong. It is denied in order to maintain respect for law; in order to promote confidence in the administration of justice; in order to preserve the judicial process from contamination." (Olmstead v. United States, 277 U.S. 438, 484, 48 S.Ct. 564, 574-75, 72 L.Ed. 944 see, also, Bowlan v. Lunsford, 176 Okl. 115, 117-118, 54 P.2d 666.) To these lines I would only add for emphasis that the plaintiff's violation must be either gravely immoral or grievously injurious to the public interests.

Accordingly, because the plaintiff's grievous criminal conduct--the construction of a "pipe bomb"--was a proximate cause of the injuries suffered and was so plainly violative of paramount public safety interests, the public policy of this State dictates that recovery be denied.

SIMONS, Judge (dissenting).

The majority holds that one injured by another's fault while engaging in allegedly criminal conduct may not be permitted access to the civil courts to recover damages for his injuries. There are several objections to such a rule. First, it is based upon a decision which is distinguishable (Reno v. D'Javid, 42 N.Y.2d 1040, 399 N.Y.S.2d 210, 369 N.E.2d 766), second, as the majority concedes, it does not always apply (see Corbett v. Scott, 243 N.Y. 66, 152 N.E. 467; Connolly v. Knickerbocker Ice Co., 114 N.Y. 104, 108-109, 21 N.E. 101; Platz v. City of Cohoes, 89 N.Y. 219; and see Townsend v. Commercial Travelers Mut. Acc. Assn., 231 N.Y. 148, 131 N.E. 871), and third, the majority has not told us when it does. Nor has it told us why all the issues in such a claim should be decided by the court as a question of law, rather than by the trier of facts as the Legislature provided in the comparative fault statute (CPLR 1411). In short, this decision permits the court to make a subjective ad hoc judgment on the severity of the plaintiff's putative criminal conduct and then to apply a general principle to it, as if the principle was a rule of tort liability, to bar plaintiff's claim.

The majority predicates its decision on Reno v. D'Javid, 42 N.Y.2d 1040, 399 N.Y.S.2d 210, 369 N.E.2d 766, supra. In Reno, the plaintiff suffered a perforated uterus when defendant performed an illegal abortion on her. The Appellate Division affirmed so much of the trial court's ruling as dismissed the cause of action for medical malpractice, breach of warranty and assault, ruling that plaintiff's participation in a criminal act barred judicial relief for injuries arising from that act (see Penal Law, §§ 125.50, 125.40). The decision was based on the principle that one should not profit from her own wrong (citing Riggs v. Palmer, 115 N.Y. 506, 511-512, 22 N.E. 188). This court, adopting the memorandum at the Appellate Division as its decision, affirmed, adding only that plaintiff had violated the "paramount public policy imperative" that the laws must be obeyed.

This case is factually and legally distinguishable from the Reno case. Reno dealt with an adult plaintiff and undisputed criminal liability for participating in an abortion. This plaintiff was 14 at the time of the accident, an age at which the majority concedes he cannot be held criminally responsible (Penal Law, § 30.00, subds. 1, 2, as amd. L. 1978, ch. 481, § 28; L. 1979, ch. 411, § 21; L.1981, ch. 335, § 5). Notwithstanding this, the majority insists that because of the seriousness of his conduct, his claim is barred. A plaintiff should not be foreclosed from seeking civil relief, however, because of the illegal character of his act as distinguished from an actual finding of criminal liability. Particularly is this so when the plaintiff is an infant plaintiff or one lacking capacity for other reasons, those whom the criminal law treats differently from competent adults. The civil rules of tort liability require consideration of plaintiffs' capacity. The violation of a statute by an adult plaintiff constitutes culpable fault, while the same violation by an infant raises a question of fact as to [479 N.Y.S.2d 209] whether the infant had the age, experience, intelligence and development to understand the meaning of the statute and to comply with it (PJI 2d, 2:49, p. 191). That is the rule applied to 14-year-old bicycle riders injured while allegedly violating a statute (Gargano v. Hanington, 40 A.D.2d 675, 336 N.Y.S.2d 114; see, also, Poczkalski v. Cartwright, 65 A.D.2d 945, 410 N.Y.S.2d 488; Locklin v. Fisher, 264 App.Div. 452, 36 N.Y.S.2d 162) and if they are entitled to have a jury evaluate their understanding of the laws relating to the use of something as commonplace and familiar as a bicycle, then a 14-year-old boy ought to have the benefit of a similar factual determination when handling firecrackers or explosives.

Moreover, the Reno decision was based upon Riggs v. Palmer, 115 N.Y. 506, 22 N.E. 188, supra and that decision is inconsistent with the policies underlying present tort law. In Riggs, a legatee who murdered a testator was not allowed to inherit under the testator's will even though he was the named beneficiary. In denying the inheritance, this court relied upon the fundamental principle of public policy that one may not profit from his own wrong (115 N.Y., at pp. 511-512, 22 N.E. 188). As our later decisions demonstrate, however, the application of the principle has been restricted to preventing unjust enrichment in cases of competing claims to real or personal property (see Spivak v. Sachs, 16 N.Y.2d 163, 263 N.Y.S.2d 953, 211 N.E.2d 329 McConnell v. Commonwealth Pictures Corp., 7 N.Y.2d 465, 199 N.Y.S.2d 483, 166 N.E.2d 494 Carr v. Hoy, 2 N.Y.2d 185, 158 N.Y.S.2d 572, 139 N.E.2d 531 Stone v. Freeman, 298 N.Y. 268, 82 N.E.2d 571 Flegenheimer v. Brogan, 284 N.Y. 268, 30 N.E.2d 591). No New York tort case other than Reno has been brought to our attention in which Riggs was relied upon or even cited. A few other States have applied the Riggs principle in torts but those decisions have been described as contrary to the compensatory theory of torts and as "a barbarous relic of the worst there was in puritanism" (2 Harper and James, Torts, § 17.6, pp. 995-997; see, also, Prosser, Torts pp. 421, 422).

A plaintiff's unlawful conduct has never been applied consistently in New York to foreclose plaintiff's recovery. Thus, in Corbett v. Scott, 243 N.Y. 66, 152 N.E. 467, supra, a 16-year-old infant plaintiff was not denied recovery for his injuries when he had an accident while driving a motorcycle in violation of two statutes. In Connolly v. Knickerbocker Ice Co., 114 N.Y. 104, 21 N.E. 101, supra, an infant plaintiff riding unlawfully on the platform of a trolley was not denied recovery for the injuries he sustained when the trolley was involved in an accident. In Platz v. City of Cohoes, 89 N.Y. 219, supra, a plaintiff injured while violating the laws prohibiting driving a carriage on Sunday was permitted to recover (see, also, Carroll v. Staten Is. R.R. Co., 58 N.Y. 126). Similarly, plaintiff's criminal conduct has not been used to foreclose access to the courts for reckless or drunken drivers (see Humphrey v. State of New York, 60 N.Y.2d 742, 744, 469 N.Y.S.2d 661, 457 N.E.2d 767) or those guilty of criminal trespass when injured by a landowner's fault (see Scurti v. City of New York, 40 N.Y.2d 433, 387 N.Y.S.2d 55, 354 N.E.2d 794). The majority maintains liability will be foreclosed if the conduct is "serious"--the concurring opinion would apply the rule only if the conduct was "egregious"--and the injury the direct result of plaintiff's unlawful conduct. The plaintiffs have been permitted to recover in the cited cases, however, not because the conduct was not serious, but because of the lack of [479 N.Y.S.2d 210] causal connection between it and the damage sustained (see, generally, Davis, Plaintiff's Illegal Act as a Defense in Actions of Tort, 18 Harv.L.Rev. 505; 2 Harper and James, Torts, § 17.6; Prosser, Torts p. 421). A plaintiff's right to maintain an action, however, should not rest on a Judge's subjective view of whether the conduct is serious or egregious: Judges will differ in making such an evaluation. Indeed the Judges of this court disagreed on the "seriousness" of the plaintiff's conduct in Reno, as they do here. As for causation, that is a fact question in almost all cases (see Wartels v. County Asphalt, 29 N.Y.2d 372, 379-380, 328 N.Y.S.2d 410, 278 N.E.2d 627). Particularly is it so in this case in which the pleadings and the evidence demonstrate that the wrongful conduct of the parties acted simultaneously in causing plaintiff's injuries. Neither of these issues should be decided on a motion for summary judgment.

There is another problem in applying the Riggs principle to questions of tort liability. It runs counter to the rule of comparative fault and the policy interests underlying that rule because Riggs produces an "all or nothing" result which precludes the wrongdoer from seeking judicial relief. When this "all or nothing" approach is applied to tort liability, it is, as one court has said, only another form of contributory negligence (see Galena & Chicago Union R.R. Co. v. Jacobs, 20 Ill. 478, 491). The analogy is apt because under the rule of contributory negligence, when a plaintiff's act or omission contributes in any way to his injuries, he is barred from pursuing a claim against a defendant notwithstanding defendant's partial responsibility for the injuries. The majority's application of the Riggs maxim has a similar result--it forecloses the plaintiff from judicial relief when the court determines that he has been guilty of criminal conduct contributing to his injuries.

This is a return to the old "admonitory" theory of tort liability, the idea that a defendant was liable to the plaintiff because of his blameworthiness or fault. The rationale of that theory, in its pristine form, was that because the conduct of the defendant may have fallen short of criminal activity the injured party should be given satisfaction, and the wrongdoer "punished", by a civil remedy of damages in tort. Because this admonitory or punitive function was paramount, a plaintiff who was also guilty of blameworthy conduct was similarly punished by being denied relief. Both parties being at fault, the courts refused to measure their wrong and let the losses lay where they fell. The rigors of such a rule soon became apparent and the law moved towards a compensatory theory of tort law which led to the principle of comparative liability set forth as early as the turn of the century in statutes such as the first Federal Employees Liability Act, followed by the Jones Act, the Merchant Marine Act and eventually the comparative negligence statutes enacted in several States (see, generally, White, Tort Law in America, pp. 164-165). Contemporaneously, the courts have moved to develop the common law along similar lines (see, e.g., Scurti v. City of New York, 40 N.Y.2d 433, 387 N.Y.S.2d 55, 354 N.E.2d 794, supra; Codling v. Paglia, 32 N.Y.2d 330, 345 N.Y.S.2d 461, 298 N.E.2d 622; Dole v. Dow Chem. Co., 30 N.Y.2d 143, 331 N.Y.S.2d 382, 282 N.E.2d 288). The ultimate proof of the ascendancy of the compensatory view of tort liability is expressed in our no-fault automobile liability laws (Insurance Law, art 18).

New York adopted comparative fault by a statute passed in 1975 (L.1975, ch. 69). It provides that the culpable conduct attributable to the claimant shall not bar his recovery, only diminish it in the proportion which it bears to the culpable conduct of the defendant. The statute makes no exceptions for intentional acts or even criminal ones but applies alike to all culpable conduct, not just negligence (CPLR 1411; see Thirteenth Ann. Report of N.Y. Judicial Conference to Legislature on CPLR, Part I-Comparative Negligence, § 10-101 comment ). [479 N.Y.S.2d 211] Thus, the statute provides the vehicle for evaluating plaintiff's conduct, whether it caused his damages and if so in what degree. It prevents a plaintiff from profiting from his own wrong because he can recover only the amount of his damages attributable to defendant's culpable conduct. In doing so, it provides a workable rule of law which reconciles the Riggs principle with the competing principle that a party injured by the fault of another is entitled to compensation.

The decision of the majority ignores this history and effectively nullifies the statute in cases in which the plaintiff is arguably guilty of violating a penal statutory provision. It asserts that the principle applies because the wrong transcends contributory negligence or the comparative fault statute. The Riggs principle, however, is not a rule of law necessitating a particular result, although the majority has applied it as if it were. It states a reason that argues in only one direction and, as such, it must compete with other inconsistent principles (see Dworkin, Model of Rules, 35 U. of Chi.L.Rev. 14, 26). In the past when we have foreclosed relief on public policy grounds, we have done so under circumstances in which objectively determinable facts made application of the rule certain and consistent (see De Angelis v. Lutheran Med. Center, 58 N.Y.2d 1053, 462 N.Y.S.2d 626, 449 N.E.2d 406 Smith v. Sapienza, 52 N.Y.2d 82, 436 N.Y.S.2d 236, 417 N.E.2d 530 Becker v. Schwartz, 46 N.Y.2d 401, 413 N.Y.S.2d 895, 386 N.E.2d 807 Howard v. Lecher, 42 N.Y.2d 109, 397 N.Y.S.2d 363, 366 N.E.2d 64 Holodook v. Spencer, 36 N.Y.2d 35, 364 N.Y.S.2d 859, 324 N.E.2d 338 ). The present decision cannot be similarly contained. It is subject not only to varying personal evaluations of the plaintiff's conduct by different Judges but also to changing social perceptions of what constitutes serious or hazardous criminal activity. The irony of Reno was that the plaintiff was denied recovery solely because her injuries were sustained during an abortion which was illegal when performed but which would not have been illegal if performed four weeks later. If the majority chooses to decide this case on grounds of public policy by applying a general principle, then the obligation rests upon it to define the rule and set forth the limitations on it (see Hopkins, Public Policy and the Formulation of a Rule of Law, 37 Brooklyn L.Rev. 323, 336). It has failed to do so, however, stating only that "rule * * * would not apply in every instance where the plaintiff's injury occurs while he is engaged in illegal activity", only when it "is a direct result of his knowing and intentional participation in a criminal act" (majority opn., at p. 25, 479 N.Y.S.2d, at p. 203, 468 N.E.2d, at p. 41), which involves risk of harm to the public (majority opn., at p. 29, 479 N.Y.S.2d, at p. 206, 468 N.E.2d, at p. 44; concurring opn., at p. 32, 479 N.Y.S.2d, at p. 207, 468 N.E.2d, at p. 45). Curiously, the rule as stated would not have prevented recovery in the only case the majority relies upon (see Reno v. D'Javid, 42 N.Y.2d 1040, 399 N.Y.S.2d 210, 369 N.E.2d 766,supra ). Nor does the regulated-prohibited test withstand analysis. For example, drunken driving is prohibited criminal conduct but it does not foreclose an action by the drunken driver for damages sustained in an accident with another.

To support this new formulation, the majority rely upon Comment b of section 889 of the Restatement of Torts, Second. Section 889 makes no distinction, however, between serious crimes and others. It provides that "is not barred from recovery for an interference with his legally protected interests merely because at the time of the interference he was committing a tort or a crime." It is interesting to note that this section of the Restatement was [479 N.Y.S.2d 212] also relied upon by the Oregon Court of Appeals in a case remarkably similar on the facts to this one in which the court refused to dismiss the complaint of an infant plaintiff who was injured while making a pipe bomb and permitted the question to be decided by the jury as the question of causation should be (see Ashmore v. Cleanweld Prods., 66 Or.App. 62, 672 P.2d 1230; see, also, Siess v. Layton, 417 S.W.2d 6).

In sum, the Riggs maxim and this court's statement in Reno that parties must obey the law are proper considerations of social policy which work satisfactorily in equitable actions, but they hardly provide a workable rule of law in the field of tort liability and should not be so applied.

This decision will have a substantial impact upon New York's personal injury litigation. In any case in which the plaintiff is allegedly guilty of any of the thousands of penal provisions contained in the various statutes of this State he will be denied access to the civil courts if, after examining the motion papers, a Judge decides the factual questions involved on the issues of whether (1) plaintiff's conduct was criminal, and if so, whether it was "serious" and presented a risk of physical harm to the public, (2) plaintiff possessed the mental capacity to be held to the same standards of conduct as a competent adult and (3) plaintiff's conduct was the proximate cause of the injury. Having resolved these issues against the plaintiff and in effect tried the lawsuit on affidavits, he may dismiss the complaint. Perhaps, as a matter of social policy, this is an appropriate type of additional punishment to be imposed on putative wrongdoers, but if so, the Legislature should say so, not the courts. Instead the majority, by refusing to distinguish between legal cause and cause in fact and after a highly selective review of the facts, has made a moral judgment that this particular plaintiff is not entitled to such relief because he is something of an "outlaw". (See 2 Harper and James, Torts, § 17.6, p. 995.)

Accordingly, I dissent and would vote to reverse the order granting summary judgment.

COOKE, C.J., and JONES and KAYE, JJ., concur with WACHTLER, J.

JASEN, J., concurs in a separate opinion.

SIMONS, J., dissents and votes to reverse in another opinion in which MEYER, J., concurs.

Order affirmed, with costs.

[1] Although the dissenters criticize Riggs v. Palmer, 115 N.Y. 506, 22 N.E. 188 as representing an excessively "puritanical" approach to the law, we assume that they would not go so far as to hold that a criminal can profit from his criminal act. It appears that their primary objection is to our recent decision in Reno v. D'Javid, 42 N.Y.2d 1040, 399 N.Y.S.2d 210, 369 N.E.2d 766 which extended the basic rule so as to preclude a person from obtaining legal compensation for injuries directly resulting from knowing participation in a criminal act. Their criticism of this rule seems to be based on the fact that it does not apply "consistently" to all types of illegal conduct thus permitting a "subjective" judicial evaluation of the degree of the criminality involved. The dissenters do not indicate, however, how this objection, if valid, would be eliminated by adopting the contrary rule they propose. Even the plaintiff recognized that a rapist should not be permitted to obtain legal compensation for injuries negligently sustained as a direct result of the rape, and that in this and similar circumstances the courts would be obliged to place reasonable restrictions on the rule the plaintiff and the dissenters propose that we adopt in this case.

[2] The fact that the plaintiff engaged in illegal conduct of a serious nature must be emphasized in view of the dissent's erroneous contention that this decision establishes a novel concept permitting complaints of persons "allegedly guilty of any of the thousands of penal provisions contained in the various statutes of this State" to be dismissed on motion if the court finds that the plaintiff's conduct contributed to his damages. Neither is there any merit to the dissent's contention that our decision "will have a substantial impact upon New York's personal injury litigation" because in "any case in which the plaintiff is allegedly guilty of any of the thousands of penal provisions contained in the various statutes of this State he will be denied access to the civil courts if, after examining the motion papers, a Judge decides the factual questions involved". As noted above the plaintiff's own testimony establishes that he was making a bomb and that the injuries for which he now seeks recovery were entirely caused by his attempt to screw the cap on the bomb. Thus the dissent overlooks the unique circumstances of this case by ignoring the fact that the plaintiff's own admissions prove that he engaged in illegal conduct of a serious nature and that his injuries were directly, indeed solely, caused by his illegal acts.

[3] This does not mean as the dissent suggests that infancy and other factors which may excuse or ameliorate otherwise criminal conduct can never relieve a plaintiff of the consequences of an apparently criminal act. We simply hold that in this case there has been no showing that the plaintiff's age entitled him to such relief.

[650 So.2d 713] Wanda T. Anderson-Tate, Metairie, for applicant.

Jacob J. Amato, Jr., Lisa A. Dunn, Amato & Creely, Gretna, for respondent.

Lawrence S. Kullman, New Orleans, J.J. McKernan, Baton Rouge, for amicus curiae La. Trial Lawyers Ass'n.

FACTS AND PROCEDURAL HISTORY

[93-2818 La. 1] KIMBALL, Justice.^[*]

In June, 1988, Christi Veazey leased an apartment in the Elmwood Plantation Apartments complex in Metairie, Louisiana, from Tonti Management Corporation ("Tonti"). About two weeks later, the complex was sold and Southmark Management Corporation ("Southmark") assumed management of the complex. At approximately 1:45 a.m., on October 3, 1988, an intruder entered plaintiff's second-story apartment through her bedroom window and raped her. Plaintiff was unable to identify the rapist, and the rapist's identity remains unknown.

In November, 1988, Christi Veazey commenced the instant action in negligence against Southmark. Plaintiff's allegations regarding Southmark's negligence can be grouped into two categories: (1) misrepresenting the amount of security at the complex and the number of past criminal acts occurring on the complex premises, and (2) furnishing inadequate security. As to the misrepresentations, plaintiff alleged that management represented to her and to her mother that Jefferson Parish Sheriff's Office deputies lived on the premises and provided security and that, with the exception of a burglary that occurred a few years earlier, no criminal offenses had been reported to management as having been committed on the complex premises. The truth, [93-2818 La. 2] plaintiff alleged, was the security officers were only convenience officers who had no responsibility for protecting the residents, and management was aware that other rapes or attempted rapes had been committed on the complex premises over the past year. As to the inadequacy of security, plaintiff alleged that Southmark failed to provide adequate locks on the windows, failed to maintain the premises so as to discourage potential intruders, and failed to provide adequate lighting. With regard to the latter, plaintiff further alleged that she had complained to management about the lighting in general, and about the non-functioning pool lights, in particular.

Southmark answered plaintiff's complaint generally denying all of plaintiff's allegations. Southmark also filed a third-party demand against Tonti, who had leased the apartment to plaintiff. Tonti responded by filing a motion for summary judgment. While the trial court denied Tonti's motion, the court of appeal granted writs, finding that Tonti was entitled to summary judgment. Tonti was thus dismissed from the suit, and the case proceeded to trial solely against Southmark. At the close of the four-day jury trial, Southmark requested, pursuant to La.Code Civ.Pro. art. 1812(C)(2),^[1] that the trial court submit [650 So.2d 714] a special interrogatory so as to permit the allocation of fault to the nonparty rapist. The trial court denied Southmark's request as well as its motion for a continuance to seek emergency writs on the issue.

The jury returned a verdict itemizing plaintiff's damages as follows: $150,000 in general damages and $30,000 in special damages, for a total damage award of $180,000. The jury, however, returned an inconsistent verdict on liability. Specifically, the jury responded to interrogatory # 1 that defendant Southmark was at fault, to interrogatory # 2 that plaintiff Christi Veazey was free from fault, and to interrogatory # 3 that Southmark was 60% at fault and [93-2818 La. 3] plaintiff was 40% at fault.^[2] The trial court, nonetheless, entered judgment adopting the verdict of the jury as the judgment of the court, assessing 40% fault to plaintiff and 60% fault to defendant. Plaintiff filed a motion for clarification and, in the alternative, motions for a judgment notwithstanding the verdict ("JNOV") and new trial. The trial court granted both the motions for clarification and JNOV, reallocating all of the fault to Southmark and finding it liable for the entire $180,000 damage award.

Affirming, the court of appeal found that while the trial court's granting of the motion for clarification was improper, its granting of the JNOV was proper. Veazey v. Elmwood Plantation Associates, Ltd. and Southmark Management Corp., 625 So.2d 675 (La.App. 5th Cir.1993). No error exists, the court of appeal reasoned, simply because the judgment was styled a clarification and a JNOV, as in substance "the judgment [took] on the legal posture of a JNOV and nothing more." Id. at 681. The court of appeal further reasoned that because "the record [was] devoid of any facts that would support finding Christi Veazey at fault for her own rape," the granting of the JNOV, which reallocated all of the fault to Southmark, was not manifestly erroneous. Id. at 680-81.

[93-2818 La. 4] The court of appeal also found no reversible error in the trial court's refusal to submit a special interrogatory to the jury for allocation of fault to the nonparty rapist. In support of its finding, the court of appeal cited the following two rationales: (1) the wide discretion La.Code Civ.Pro. art. 1812 affords the trial court in determining whether to submit such an interrogatory; and (2) the jurisprudential "mandates" that denying a requested jury charge is reversible error only if it results in the jury being misled to such an extent as to prevent it from doing justice. Applying both rationales, the court of appeal concluded that "after careful review, we can only say the trial court did not commit reversible error because of the wide discretion granted by our statutory scheme, and, more importantly, we conclude the trial court's action did not cause the jury to be misled to such an extent as to prevent it from doing justice." Id. at 679. In reaching that result, however, the court of appeal also concluded, based on its "exhaustive search of suggested guidelines," that "it is permissible to assess fault between intentional and negligent tortfeasors." Id.

On Southmark's application, we granted certiorari to consider the correctness of the court of appeal's decision. Christi Veazey v. Elmwood Plantation Associates, Ltd. and [650 So.2d 715] Southmark Management Corporation, 93-2818 (La. 2/4/94), 633 So.2d 158.

ISSUE

While Southmark contends that the lower courts erred in finding it at fault and in holding it liable for plaintiff's damages which resulted from the rapist's intentional criminal acts, we have reviewed the record and find substantial evidence supporting the finding that the management of the apartment complex misrepresented to plaintiff the security afforded at the complex, that window locks were inadequate, that lighting was poor and that security provided by the complex was substandard. Therefore, the finding of fault on the part of Southmark, which was a contributing cause of plaintiff's damages, is not manifestly erroneous.

As such, the only issues we consider herein are whether the fault of an intentional tortfeasor and a negligent tortfeasor: (1) can; and (2) should, be compared by the finder of fact.

[93-2818 La. 5] LAW

The issues of whether Louisiana comparative fault principles can and, if so, should apply when the fault of both an intentional tortfeasor and a negligent tortfeasor contributes to the same damages are significant issues of first impression in this Court. The Louisiana comparative fault law was enacted by Act 431 of 1979 (effective August 1, 1980), and thus governs the instant case. Act 431 ushered into Louisiana a comparative fault system by amending and re-enacting La.C.C. articles 2103,^[3] 2323 and 2324. To adjust procedurally for those substantive changes in the Civil Code provisions, Act 431 also amended and re-enacted La.Code Civ.Pro. arts. 1811^[4] and 1917. These provisions of the comparative fault law all share a common characteristic; "[they all] use the term 'fault' when referring to tortfeasor conduct and 'negligence' when referring to victim conduct." D. Robertson, Ruminations on Comparative Fault, Duty-Risk Analysis, Affirmative Defenses, and Defensive Doctrines in Negligence and Strict Liability Litigation in Louisiana, 44 La.L.Rev. 1341, 1344 n. 18 (1984) (hereinafter "Ruminations "); Turner v. New Orleans Public Service, Inc., 476 So.2d 800 (La.1985); M. Plant, Comparative Negligence and Strict Tort Liability, 40 La.L.Rev. 403, 413 (1980) (hereinafter "Plant ").

The significant effects of the comparative fault law on Louisiana tort law were two-fold. First, the comparative fault law eliminated the harsh all-or-nothing doctrine of contributory negligence, which Louisiana had borrowed from the common law. "Consequently, a plaintiff's claim for damages no longer can be barred totally because of his negligence. At most his claim may be reduced in proportion to his fault." Bell v. Jet Wheel Blast, Div. of Ervin Ind., 462 So.2d 166, 170 (La.1985); La.C.C. art. 2323. Second, the comparative fault law altered the rules regarding the relationship between joint tortfeasors, changing the basis for contribution [93-2818 La. 6] among them from virile share defined as per head to virile share defined in terms of proportionate fault, La.C.C. arts. 1804,^[5] and, by later amendment, limiting solidary liability between them. La.C.C. art. 2324, as amended in 1987. In short, the comparative fault law " 'provide[d] the framework for a comprehensive scheme of loss apportionment [650 So.2d 716] in multiple party litigation.' Chamallas, Comparative Fault and the Multiple Party Litigation in Louisiana: A Sampling of the Problems, 40 La.L.Rev. 373 (1981)." Cole v. Celotex Corp., 599 So.2d 1058, 1062 n. 13 (La.1992).

The comprehensive framework provided by the comparative fault law, however, left several major questions unanswered. See Murray v. Ramada Inns, Inc., 521 So.2d 1123, 1133 (La.1988) (citing Turner, supra ). One of the questions left unanswered is the basic question presented here, i.e., whether comparative fault principles should apply when one tortfeasor acts negligently and another tortfeasor acts intentionally to produce the same damages. D. Robertson, 1 Louisiana Practice Series: The Louisiana Law of Comparative Fault: A Decade of Progress 5 (1991) (hereinafter "Decade of Progress ") (noting that this is one of the " 'tough details [the legislature has] left for the courts to decide'; the comparative fault statutes are opaque on this question"). Forecasting this as a "multiparty difficulty" sure to arise for the courts to decide, the same commentator framed the question before us as follows: whether (and, if so, how) "comparative fault assessment [should] work in a case against defendant A in intentional tort and defendant B in negligence." Ruminations, supra at 1343-44 n. 14.

Construing La.C.C. art. 2323,^[6] we have held that it adopted the substantive principle of comparative fault and that it left the particulars of its application for the courts to decide. Bell, supra; Turner, supra; Howard, supra. One such particular is the scope of the [93-2818 La. 7] comparative fault law's application. Speaking to this issue, La.C.C. art. 2323 simply states that comparative fault applies "[w]hen contributory negligence is applicable to a claim for damages." While that limiting language could conceivably be construed as confining comparative fault to negligence cases, we have declined to read it so narrowly. Bell, supra; Turner, supra. Rejecting such a narrow reading, we reasoned in Turner, supra, that if the legislature had intended to confine the comparative fault law, it could have easily done so; "[o]ne word would have done the job, i.e., 'only when contributory negligence is applicable.' " Turner, 476 So.2d at 804 (emphasis added). Likewise, we reasoned in Bell, supra, that La.C.C. art. 2323 neither "state[s] when the courts shall permit a defense of contributory or comparative negligence to affect a plaintiff's recovery, nor does it prohibit the courts from applying comparative negligence to a claim previously insusceptible to the bar of contributory negligence." Bell, 462 So.2d at 170. In sum, rather than reading La.C.C. art. 2323 as restricting judicial expansion of comparative fault to other contexts, we have read that article as leaving it to the court's discretion to determine in what contexts the judicially crafted doctrine of contributory negligence should be invoked and, in turn, mandating that in such contexts the court apply, in its place, comparative fault. Turner, 476 So.2d at 806 (Dennis, J., assigning additional reasons); Bell, supra; Howard v. Allstate Ins. Co., 520 So.2d 715, 718 (La.1988). Consequently, it is settled that La.C.C. art. 2323 neither prohibits nor mandates the contexts in which the comparative fault law applies.

That the comparative fault doctrine extends beyond the negligence arena into other areas of tort law is likewise settled. Bell, supra (applying comparative fault to some strict products liability cases); Landry v. State, 495 So.2d 1284 (La.1986) (applying comparative fault to case arising under La.C.C. art. 2317); Howard v. Allstate Insurance Co., 520 So.2d 715 (La.1988) (applying comparative fault to cases arising under La.C.C. art. 2321); Turner v. New Orleans Public Service, Inc., 471 So.2d 709 (La.1985) (applying comparative fault to motorist-pedestrian case); see also Pelt v. City of DeRidder, 553 So.2d 1097 (La.App. 3d Cir.1989) [650 So.2d 717] (applying comparative fault to case under La.C.C. art. 667 and collecting cases); Decade of Progress, supra (collecting cases). Indeed, a long line of jurisprudence, which we sampled in Landry, supra, establishes that the comparative fault concept applies to a wide array of strict [93-2818 La. 8] liability cases, despite the conceptual and semantical difficulties in applying the doctrine to such non-negligence based liability. Landry, 495 So.2d at 1290.

The issue before us, here, of course, is whether the comparative fault law extends to wrongful conduct at the opposite end of the spectrum--intentional torts. See 3 Comparative Negligence § 19.10[iii] (noting that "[a]t the opposite extreme from strict liability lies cases in which defendant has injured plaintiff intentionally"). Recently, several Louisiana appellate courts have concluded that comparative fault principles under La.C.C. art. 2323 apply to intentional torts, some with, and some without, offering reasons or comments for doing so. In so holding, these cases, explicitly or implicitly, have construed the term "fault" contained in the various provisions of the comparative fault law as encompassing both unintentional and intentional conduct that causes injury. Thompson v. Hodge, 577 So.2d 1172, 1177 (La.App. 2d Cir.1991); Peacock's, Inc. v. Shreveport Alarm Co., 510 So.2d 387, 405 (La.App.2d Cir.), writ denied, 513 So.2d 826 (La.1987) (citing F. Stone, Tort Doctrine, 12 La.Civil Law Treatise § 61 (1977)); see also Morris v. Yogi Bear's Jellystone Park Camp Resort, 539 So.2d 70 (La.App. 5th Cir.), writ denied, 542 So.2d 1378 (La.1989) (applying comparative fault to quantify intentional fault of rapist without reasons or comments); McCullom v. Regional Transit Authority, 616 So.2d 239 (La.App. 4th Cir.), writ denied, 620 So.2d 852 (La.1993). Likewise, commentators have suggested that comparative fault law is broad enough to encompass intentional torts. J. Dear and S. Zipperstein, Comparative Fault and Intentional Torts: Doctrinal Barriers and Policy Considerations, 24 Santa Clara L.Rev. 1, 37 (1984) (hereinafter "Dear & Zipperstein "); Decade of Progress, supra.

A contrary view, however, has been voiced by some Louisiana appellate courts and a commentator. See Broussard v. Lovelace, 610 So.2d 159 (La.App. 3d Cir.1992), writ denied, 615 So.2d 343 (La.1993) (declining to apply comparative fault to conversion case); Bradford v. Pias, 525 So.2d 134 (La.App. 3d Cir.1988) (declining to apply comparative fault to battery case); Hebert v. First Guaranty Bank, 493 So.2d 150 (La.App. 1st Cir.1986) (declining to apply comparative fault to conversion case); F. Stone, Tort Doctrine, 12 La.Civil Law Treatise § 61 (1994 Supp.) (hereinafter "Tort Doctrine ") (citing holding in Yogi Bear's Jelly Stone Park, supra, and noting caveat that it is "[c]learly an erroneous holding since contributory negligence is inapplicable to intentional torts").

[93-2818 La. 9] Also significant is the legislature's selection of the dynamic, all-encompassing civilian concept of "fault" as the standard for the tortfeasor's conduct. As noted, the provisions of the comparative fault law all share a common characteristic; they all speak in terms of plaintiff's "negligence" and defendant's or tortfeasor's "fault." Fault, historically, has been the basis for tort liability in Louisiana, being the key word used in La.C.C. art. 2315,^[7] the "fountainhead" of tort responsibility in Louisiana. Langlois v. Allied Chemical Corp., 258 La. 1067, 249 So.2d 133, 136-37 (1971). The Civil Code, however, does not define "fault," and this Court has described attempts at defining fault as a "logomachy,"^[8] noting in Langlois that "[b]ecause of the difficulty in defining fault for all times and purposes and instead of defining fault by listing numerous activities which constitute fault (much as we enumerate the activities which constitute criminal conduct in our Criminal Code), our law has left this determination to our courts." Langlois, 249 So.2d at 137; Tort Doctrine, supra, at § 60 (noting that "fault is the mirror of our times: [650 So.2d 718] ... fault is a fluid term definable only with respect to its surroundings").

However, certain definitions of the word have been judicially articulated and are instructive in our analysis. One such articulation is that "fault is a broad concept embracing all conduct falling below a proper standard." Weiland v. King, 281 So.2d 688, 690 (La.1973) (citing Langlois, supra, and Tort Doctrine, supra ). As this definition reflects, "fault" under civilian theory clearly includes more than just negligence; it extends the gamut from strict liability to intentional torts. Tort Doctrine, supra at § 61 (describing fault as including "intentional harm caused to another without consent or privilege"); see Plant, supra at 413-15.

Given the existing statutory scheme and this Court's prior case law, we find that comparative fault law as it exists in Louisiana is broad enough in an appropriate factual setting to encompass the comparison of negligent and intentional torts. However, our conclusion that such a comparison can be made does not end the inquiry; instead, it simply raises the more [93-2818 La. 10] difficult question of whether such a comparison should be made in general and, more specifically, whether such a comparison should be made in this particular case.^[9]

As we have previously explained herein, this Court has heretofore read La.C.C. art. 2323 as leaving it to the Court's discretion to determine in what contexts the doctrine of comparative negligence should be applied. See Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106, 1113 (La.1990); Murray v. Ramada Inns, Inc., 521 So.2d 1123, 1133 (La.1988); Howard v. Allstate Ins. Co., 520 So.2d 715, 718 (La.1988); Landry v. State, 495 So.2d 1284 (La.1986); Turner v. New Orleans Public Service, Inc., 471 So.2d 709 (La.1985); Bell v. Jet Wheel Blast, Div. of Ervin Ind., 462 So.2d 166 (La.1985). As this Court stated in Bell, supra:

For example, the question of whether other classes of cases fall within the category to which comparative fault may apply must be decided on a case-by-case basis.

Bell, 462 So.2d at 172.

Though the accident at issue in Bell occurred before the effective date of comparative fault, we have adhered to the line of reasoning expressed in that case, i.e., that application of comparative fault principles in certain types of cases requires a case-by-case analysis. For instance, in the area of strict liability, though we have repeatedly held that comparative fault principles generally apply in strict liability cases involving victim fault, we have also consistently maintained that application of comparative fault principles to allocate fault between an injured plaintiff and the party with garde or custody of the property or object producing the harm in a particular case depends in part upon the court's determination of whether reducing the injured party's recovery through a comparative fault allocation will serve as an incentive for a similarly situated person to exercise care or, in contrast, operate to reduce the incentive of the owner of the thing at issue to remove the risk of harm. See Sistler, supra; Landry, supra ("The courts [93-2818 La. 11] are applying the comparative fault principles to strict liability cases on a case by case basis and as the facts and circumstances lead the courts to do so."). This case-by-case approach is also reflected in our appellate courts' decisions to alternatively either apply, or decline to apply, comparative fault principles in intentional tort cases involving battery and conversion, depending upon the facts and circumstances presented in the particular cases at issue. See supra.

Given the fact that we have held herein that the concept of comparative fault as it exists in Louisiana is broad enough to encompass the comparison of intentional acts [650 So.2d 719] and negligence in appropriate factual circumstances, we see no reason why the same sort of case-by-case analysis as that employed by the courts in a strict liability setting should not be employed by the courts in determining whether to apply comparative fault principles in cases where it is alleged that comparative fault exists among intentional tortfeasors and negligent tortfeasors. That being said, public policy considerations inherent in the question of whether such a comparison should be made compel us to find, as did the trial court, that such a comparison should not be made in this particular case.

First, and foremost, the scope of Southmark's duty to the plaintiff in this case clearly encompassed the exact risk of the occurrence which caused damage to plaintiff. As a general rule, we find that negligent tortfeasors should not be allowed to reduce their fault by the intentional fault of another that they had a duty to prevent. See Kansas State Bank & Trust Co. v. Specialized Transportation Services, Inc., 249 Kan. 348, 819 P.2d 587, 606 (1991).

Second, Southmark, who by definition acted unreasonably under the circumstances in breaching their duty to plaintiff, should not be allowed to benefit at the innocent^[10] plaintiff's expense by an allocation of fault to the intentional tortfeasor under comparative fault principles. Given the fact that any rational juror will apportion the lion's share of the fault to the intentional tortfeasor when instructed to compare the fault of a negligent tortfeasor and an intentional tortfeasor,^[11] application of comparative fault principles in the circumstances presented in this [93-2818 La. 12] particular case would operate to reduce the incentive of the lessor to protect against the same type of situation occurring again in the future. Such a result is clearly contrary to public policy.

Third, as Dean Prosser has explained it, intentional wrongdoing "differs from negligence not only in degree but in kind, and in the social condemnation attached to it." Prosser and Keeton on the Law of Torts § 65, at p. 462 (5th Ed.1984). In our view, this is a correct assessment of the character and nature of the conduct which defendant herein seeks to have the courts compare. Because we believe that intentional torts are of a fundamentally different nature than negligent torts, we find that a true comparison of fault based on an intentional act and fault [650 So.2d 720] based on negligence is, in many circumstances, not possible.^[12]

[93-2818 La. 13] In sum, we hold that while Louisiana law is broad enough to allow comparison of fault between intentional tortfeasors and negligent tortfeasors, determination of whether such a comparison should be made must be determined by the trial court on a case by case basis, bearing in mind the public policy concerns discussed herein.^[13] We further hold, for the reasons stated herein, that comparison of Southmark's negligence and the rapist's fault in this particular case is not appropriate. As such, it was not error for the trial judge in this case to refuse to [93-2818 La. 14] submit a special interrogatory to the jury for comparison of Southmark's and the rapist's respective fault.

DECREE

AFFIRMED.

WATSON, J., joins the opinion and adds additional reasons.

LEMMON and HALL, JJ., dissent and assign reasons.

MARVIN, J., dissents for the reasons assigned by HALL, J.

[650 So.2d 721] [93-2818 La. 1] WATSON, Justice, adding concurring reasons.

The dissenters urge that we adopt their new (for Louisiana) theory of comparing intentional fault with negligence or strict liability, saying that difficulty of comparison is no reason to eschew this idea. It is not the difficulty of comparison: it is the impossibility.

The rapist or murderer is 100% at fault. His intentional fault cannot be compared logically with the negligence of a party who facilitates the crime. Likewise, there can be no comparison with the injured victim's fault, as appealing as the theoretical concept may be.

I join the opinion and respectfully add these brief comments.

HALL, Justice, dissenting.

I respectfully dissent.

After a scholarly and accurate analysis of fault and comparative fault principles, the majority opinion correctly concludes that comparative fault law as it exists in Louisiana is broad enough in an appropriate factual setting to encompass the comparison of negligent and intentional acts. This conclusion does not, as the majority opinion states, end the inquiry. We must determine whether such a comparison should be made in general or, more specifically, should be made in this case. Stated otherwise, we must determine whether there are any policy considerations that would preclude an application of comparative fault principles to intentional tort cases in general, and to the facts of this case in particular. It is in this further determination that I part company with the majority. I conclude that there are no public policy considerations which militate against applying the comparative fault and limited solidary liability principals of LSA-C.C. arts. 2323, 2324 and 1804, and LSA-C.C.P. art. 1812, to allocate fault between an intentional tortfeasor and a negligent tortfeasor consistent with the development of comparative fault law in this state.

Focusing first on the facts of this particular case, the question presented here is whether to compare the fault of an intentional co-tortfeasor--the non-party rapist--against that of a negligent co-tortfeasor--Southmark. This particular question takes this case outside of the traditional "two party model"--the contributorily negligent plaintiff and the intentional negligent tortfeasor--and places it into the multiple tortfeasor context. J. Leibman, Comparative Contribution and Intentional Torts: A Remaining Roadblock to Damages Apportionment, 30 [93-2818 La. 2] Am.Bus.L.J. 677 (1993) (hereinafter "Leibman "). In the multiple tortfeasor setting, additional issues of contribution and solidary liability between joint tortfeasors are interjected. Id.; Blazovic v. Andrich, 124 N.J. 90, 590 A.2d 222, 229, 18 A.L.R.5th 1031 (1991) (noting that "[a] court's determination whether certain conduct is amenable to apportionment under the [New Jersey Comparative Negligence] Act affects not only the plaintiff's potential recovery, but also the liability among joint tortfeasors"). For guidance on the issue before us, we should turn to our recent jurisprudence addressing two multiparty issues that arise under the comparative fault law.

The first multiparty issue we recently resolved is that the comparative fault law applies to all "phantom" tortfeasors. Gauthier v. O'Brien, 618 So.2d 825 (La.1993).^[1] Employing expressly the phantom tortfeasor term, we wrote:

Louisiana juries are not unfamiliar with the allocation of fault to non-parties. Phantom tortfeasors' fault has been assessed pursuant to former La.Code of Civ.Proc. art. 1811(B)(2), now article 1812. Allocation of fault pursuant to [La.C.C.] article 2324 is not likely to result in jury confusion in light of the prior experience in this area. Failure to submit a special jury interrogatory to the jury to determine the fault, if any, of a third party constitutes error.

Gauthier, 618 So.2d at 831 (citations omitted). In reaching that conclusion, we noted that "[t]he rationale for allocating fault to all [650 So.2d 722] who may be culpable is that '[t]rue apportionment cannot be achieved unless that apportionment includes all tortfeasors guilty of causal negligence either causing or contributing to the occurrence in question, whether or not they are parties to the case.' " 618 So.2d at 830 (quoting Pocatello Indus. Park Co. v. Steel West, Inc., 101 Idaho 783, 621 P.2d 399, 403 (1980)); see also Chamallas, Comparative Fault and the Multiple Party Litigation in Louisiana: A Sampling of the Problems, 40 La.L.Rev. 373, 389 (1981) (hereinafter "Chamallas ") (noting that the comparative fault law "contemplates that the conduct of all persons responsible for plaintiff's injury should be evaluated by the fact finder").

The procedural mechanism by which phantom tortfeasor fault is considered is set forth in LSA-C.C.P. Art. 1812(C)(2), which provides for submission of a special jury interrogatory regarding whether another person, whether nonparty or not, was at fault.^[2] Construing LSA-[93-2818 La. 3] C.C.P. Art. 1812(C), we held in Lemire v. New Orleans Public Service, Inc., 458 So.2d 1308, 1309 (La.1984), that "[w]hile La.C.C.P. art. 1812C provides that the court may (unless waived by all parties) submit special written questions to the jury, the apparent intent is that the court in such circumstances is required to submit the questions." Lemire, 458 So.2d at 1309 (citing 1983 Revision Comments to LSA-C.C.P. Art. 1812, Section (b)). Hence, Lemire mandates the submission of such special interrogatory, when appropriate. See Veal v. Forrest, 543 So.2d 1121, 1123 n. 3 (La.App. 1st Cir.1989). Submission of such special interrogatory becomes appropriate when evidence supporting a finding of fault on the part of a phantom tortfeasor is presented. Brock v. Winn Dixie Louisiana, Inc., 617 So.2d 1234, 1238 (La.App. 3d Cir.), writ denied, 620 So.2d 848 (La.1993) (citing Devereux v. Allstate Ins. Co., 557 So.2d 1091 (La.App.2d Cir.1990)). When such evidence exists, the trial court's refusal to submit such special interrogatory to the jury to permit the allocation of fault to the phantom tortfeasor is erroneous. Gauthier, 618 So.2d at 831; Perez v. State, Through Dept. of Transportation and Development, 578 So.2d 1199 (La.App. 4th Cir.), writ denied, 581 So.2d 706 (La.1991).

Recapping, a settled substantive issue is "that Gauthier requires the quantification of the fault of all types of phantom tort-feasors." D. Robertson, Solidary Liability in Tort: Understanding Gauthier and Touchard, Who Pays How Much?, Part 2, 41 La.Bar J. 334, 335 (1993) ("Understanding Gauthier "). The rationale for this rule is that " '[t]o limit the jury to viewing the negligence of only one tortfeasor and then ask it to apportion that negligence to the overall wrong is to ask it to judge a forest by observing just one tree. It cannot, and more importantly should not, be done. It simply is not fair to the tortfeasor which plaintiff chooses to name in his lawsuit.' " L. Eilbacher, Comparative Fault and the Nonparty Tortfeasor, 17 Ind.L.Rev. 903, 906 n. 2 (1984); see also Chamallas, supra at 389 (noting that "[i]f a tortfeasor is absent, problems may arise in assessing the correct percentage of fault to the existing parties to the litigation"); Gauthier, 618 So.2d at 833 (Lemmon, J., concurring). Similarly, a settled procedural issue is that when evidence of phantom tortfeasor fault is presented, the trial court [93-2818 La. 4] is required, under LSA-C.C.P. Art. 1812(C)(2), to submit to the jury the special interrogatory so as to permit the allocation of fault to such nonparty tortfeasor.

Another recently settled multiparty issue under the comparative fault law is that a limited form of the civilian concept of solidary liability between joint tortfeasors^[3] is retained in LSA-C.C. Art. 2324.^[4] Touchard [650 So.2d 723] v. Williams, 617 So.2d 885, 891-92 (La.1993). As we observed in Touchard, solidary liability is "founded on the notion that the innocent plaintiff should obtain full compensation from any person whose fault was an indispensable factor in producing the harm." 617 So.2d at 890. Under the solidary obligation provision in effect before Act 431 of 1979 and thereafter until LSA-C.C. Art. 2324 was amended by Act 373 of 1987, any tortfeasor could be compelled to pay the entire judgment; hence, "a solvent defendant was subjected to paying the tab for other defendants who are insolvent, undeterminable, or hidden." Id. Act 431 altered that rule somewhat, and the 1987 amendment to LSA-C.C. Art. 2324 altered that rule even more.

In Touchard, we thoroughly canvassed those changes in LSA-C.C. Art. 2324, including the legislative history behind them, and concluded that:

[T]he final version of [LSA-C.C. Art. 2324] adopted by the Legislature represents a compromise between the competing interests of judgment creditors and judgment debtors. Judgment debtors are no longer exposed to solidary liability for 100% of the judgment creditor's damages except where the joint tortfeasors commit "an intentional or wilful act." Instead, a judgment debtor's exposure is limited, in the absence of a greater than 50% assignment of that debtor's fault, to fifty percent of the plaintiff's "recoverable damages." [93-2818 La. 5] Nevertheless, a judgment debtor's liability, in the absence of the judgment creditor being assigned a greater degree of fault, is not limited to his assigned percentage of fault, as the original bill had proposed.

Similarly, a judgment creditor is precluded from securing 100% recovery from one or another of the joint tortfeasors, except where the tortfeasors commit "an intentional or wilful act," or a given tortfeasor is assigned 100% of the fault. Yet such, a judgment creditor is not limited to recovering from each tortfeasor only his percentage of fault, unless the judgment creditor is assigned a greater degree of fault than the given tortfeasor.

617 So.2d at 891-92. Hence, Touchard resolves the issue of the proper reading of the concededly confusing limited solidarity rule set forth in LSA-C.C. Art. 2324, holding that "the article [as currently written] was intended to provide a cap on solidarity among joint tortfeasors of 50%," as opposed to the previously existing 100%, and, significantly, that "[t]he balance, reached by the legislature, shares the risk of insolvent, incapable of paying, undeterminable, and hidden [phantom] tortfeasors" between judgment debtors (defendants) and creditors (plaintiffs). 617 So.2d at 891-93.^[5]

[650 So.2d 724] Against this backdrop, I return to the specific, unsettled issue before us of whether it is proper, as a policy matter, to compare the negligent conduct of one co-tortfeasor against the intentional conduct of another co-tortfeasor. This issue has two facets: (i) whether the comparison of the concurrent fault of negligent and intentional tortfeasors should be permitted under the comparative fault law; and (ii), if so, how to treat the fault assessed to the non-party, intentional tortfeasor.

Building on our recent jurisprudence, I start with the notion underlying the comparative fault law of equitable apportionment of losses among all responsible tortfeasors--parties and nonparties--which we recognized in Gauthier, and the retention of limited solidary liability and the resulting sharing of the risk of losses attributable to insolvent and phantom tortfeasors between plaintiffs and defendants, which we recognized in Touchard. Under our recent jurisprudence, it is clear that in a multiparty litigation involving two or more negligent co-[93-2818 La. 6] each tortfeasor is apportioned a percentage of fault and each, excepting a tortfeasor assigned more than 50% fault or less fault than that assigned the plaintiff, is generally solidarily responsible for 50% of plaintiff's recoverable damages. Altering the hypothetical to include an intentional tortfeasor and assuming a judicial refusal to permit the allocation of fault to such intentional tortfeasor results, as the lower courts held in this case, in the negligent tortfeasor(s) being held liable for the entirety of plaintiff's damages. This result--holding the negligent tortfeasor(s) responsible for the entirety of the damages because of the mere happenstance that a co-tortfeasor committed an intentional, as opposed to a negligent, wrongdoing--is anomalous.

This anomaly that arises in the context of concurrent fault of negligent and intentional tortfeasors has only recently received judicial attention; the scarcity of judicial attention to the problem is explained by the fact that state legislatures, including the Louisiana legislature, only recently have limited joint and several, or solidary, liability. Medina v. Graham's Cowboys, Inc., 113 N.M. 471, 827 P.2d 859, 864 (Ct.App.1992). The few recent cases to address the issue in the context of comparative fault and less than full joint and several, or solidary, liability, however, have generally agreed that resolution of the anomaly requires allocation of fault between the negligent and intentional tortfeasors. Weidenfeller v. Star and Garter, 1 Cal.App.4th 1, 2 Cal.Rptr.2d 14 (Ct.App. 4 Dist.1991) (holding that when concurrent negligence of one tortfeasor and intentional misconduct of an assailant caused plaintiff's injury, negligent tortfeasor's liability was limited to its percentage of fault); Martin By and Through Martin v. United States, 984 F.2d 1033 (9th Cir.1993) (finding result in Weidenfeller a correct construction of California law); Medina, supra (holding that fault of intentional and negligent tortfeasors should be compared with negligent tortfeasor bearing responsibility only for its percentage of the damages, but holding negligent tortfeasor responsible for entirety of damages under alternative theory of respondeat superior for negligent hiring of intentional tortfeasor); Cf. Kansas State Bank & Trust Co. v. Specialized Transp. Services, Inc., 249 Kan. 348, 819 P.2d 587 (1991) (noting inconsistency in law but refusing to permit apportionment of fault between negligent and intentional tortfeasors).

Agreeing, I would hold that Southmark's negligent fault and the nonparty rapist's intentional fault must be compared and, finding that the rapist's fault was greater than that of Southmark's, as explained more fully hereafter, Southmark's solidary liability must be limited [93-2818 La. 7] to 50% of plaintiff's recoverable damages.

Turning back to the more general issue of whether comparative fault principles should be extended to intentional tort cases, I believe that they should and that such extension is consistent with both the language and the underlying policies of the comparative fault law.^[6] In so finding, I acknowledge that [650 So.2d 725] the position of extending comparative fault principles to the intentional tort context is a minority one. A. Schwartz, Applicability of Comparative Negligence Principles to Intentional Torts, 18 A.L.R.5th 525 (1994). Nonetheless, the historically rooted rationales underlying the majority position are inapposite under the Louisiana comparative fault law. More particularly, those historically rooted rationales are three-fold; namely: (i) the harshness of the contributory negligence bar; (ii) the theory that intentional fault is "different in kind"; and (iii) the policy considerations of deterring and punishing intentional tortfeasors. Dear & Zipperstein, supra at 387-92. I address each of these in turn.

The first rationale regarding the harshness of the contributory negligence bar is based on the pre-comparative fault, black letter law that contributory negligence was never applicable to intentional tort cases. See W. McNichols, Should Comparative Responsibility Ever Apply to Intentional Torts?, 37 Okla.L.Rev. 641, 647 (1984) (noting common law rule that contributory negligence was never applicable to intentional torts); White v. Gill, 309 So.2d 744 (La.App. 4th Cir.1975) (citing rule that contributory negligence is not a defense to intentional torts). This black letter law, the argument goes, was carried over under the comparative fault enactments. Continuing, the rationale is that because comparative fault evolved to compensate tort victims who were barred from recovery by the harsh all-or-nothing rule of contributory negligence, comparative fault should not be applied in contexts in which contributory negligence was not previously a defense, as it would place these plaintiffs in a worse position. A. Schwartz, Applicability of Comparative Negligence Principles to Intentional Torts, 18 A.L.R.5th 525 (1994).

[93-2818 La. 8] This rationale, however, overlooks the fact that comparative fault does not bar, but rather merely reduces, a plaintiff's recovery. "Thus the undue harshness rationale for refusing to compare plaintiff's negligence with defendant's intentional fault disappears." G. Hollister, Using Comparative Fault to Replace the All-or-Nothing Lottery Imposed in Intentional Tort Suits in Which Both Plaintiff and Defendant Are At Fault, 46 Vand.L.Rev. 121, 133 (1993) ("Hollister") (noting that applying comparative fault, in fact, will result in more equitable results). Furthermore, this rationale is clearly inapposite given our clear holdings putting to rest any notion that LSA-C.C. Art. 2323 cabins the comparative fault law to contexts in which contributory negligence was formerly a defense. Turner, supra; Bell, supra; Howard, supra.

The second rationale, oft-cited and relied on by the majority, for refusing to apply comparative fault to intentional torts is that intentional torts are "different in kind" than negligent torts and are thus incomparable. This rationale is based on the position posited by Dean Prosser that intentional wrongdoing " 'differs from negligence not only in degree but in kind, and in the social condemnation attached to it.' " 3 Comparative Negligence § 19.10[iii] (quoting Prosser and Keeton on the Law of Torts § 65, at p. 462 (5th Ed.1984)). This rationale has been rejected, however, by at least one court and by several commentators. Blazovic v. Andrich, 590 A.2d at 231 (finding that intentional torts and negligent torts are not "different in kind," but rather "different in degree"); Dear & Zipperstein, supra at 2 (noting that "negligence, reckless, and intentional conduct--the three traditional classifications of fault--are not different in kind, but merely reflect degrees of violation of a common social norm"); Leibman, supra; Hollister, supra at 135-136. As one commentator notes, this rationale should be rejected for two reasons: "First, although the conclusion that intent and negligence are different in kind sounds appealing, significant doubt exists that they are. Second, even if they are different in [650 So.2d 726] kind, that is not a sufficient reason to require that one of two faulty people bear the entire loss." Hollister, supra at 135-36.

The contrary view that intentional torts are different in kind is based on the fictional notion that " '[t]he law of intentional torts constitutes a separate world of legal culpability.' " Leibman, supra at 693 n. 86 (quoting Mills v. Reynolds, 807 P.2d 383 (Wyo.1991) (Urbrigkit, J., dissenting)). That view of tort law consisting of compartmentalized concepts of legal culpability, however, has never been the law in this state and is inconsistent with the "fault" [93-2818 La. 9] concept embodied in our comparative fault law. Consequently, I would join the New Jersey Supreme Court in concluding that intentional torts and negligent torts are not "different in kind," but rather "different in degree." See Blazovic, supra.

Furthermore, this "apples and oranges" argument can easily be rejected in jurisdictions, like Louisiana, that have extended comparative fault to strict liability torts. Hollister, supra at 142. Indeed, intentional torts, at least on a conceptual level, are more capable of comparison against negligent torts than are strict liability torts. Strict liability torts are premised on a tortfeasor's status or relationship and not on actual fault; whereas, both intentional and negligent torts are premised on the tortfeasor's actual fault. Hence, "[a]lthough courts in extending comparative principles to strict tort liability actions have gone so far as to allow comparison of conduct truly dissimilar (fault compared with no-fault), we do not need to venture so far in order to extend comparative principles to appropriate intentional tort cases." Dear & Zipperstein, supra at 36.

The final rationale voiced against applying comparative fault to intentional torts, also relied on by the majority, is that it will decrease the deterrent or punitive aspects of tort recovery. This rationale is especially weak in jurisdictions, like Louisiana, that generally do not recognize punitive damages. Hollister, supra at 146 n. 100 (observing that "[a]ll these states [that do not recognize punitive damages, including Louisiana] have determined that punishment is not a proper function for tort law, and thus they should not cite punishment as a justification for prohibiting comparative fault"); Mitigation Comment, supra at 118 (noting that "[n]owhere has Louisiana law recognized that an intentional tortfeasor should be punished for his acts. Other states, who deal firmly with intentional tortfeasors and attempt to deter such actions, allow punitive damages to be awarded"). I thus find this rationale inapposite to the Louisiana comparative fault law.

The position that comparative fault principles should be applied to intentional torts is buttressed by the New Jersey Supreme Court's holding in Blazovic v. Andrich, 124 N.J. 90, 590 A.2d 222, 227-231, 18 A.L.R.5th 1031 (1991). There, the New Jersey court, in reaching the same result, premised its holding by noting that it was "unpersuaded by the decisions of other jurisdictions that reject apportionment of fault in actions involving intentional tortfeasors." 590 A.2d at 231. Continuing, the New Jersey court, as I would do, rejected the three historically [93-2818 La. 10] advanced policy rationales cited in support of the prevailing majority position, writing:

Those decisions derive from an earlier era when courts attempted to avoid the harsh effect of the contributory negligence defense and sought to punish and deter intentional tortfeasors. Refusal to compare the negligence of a plaintiff whose percentage of fault is no more than fifty percent with the fault of intentional tortfeasors is difficult to justify under a comparative-fault system in which that plaintiff's recovery can be only diminished, not barred.

Moreover, we reject the concept that intentional conduct is "different in kind" from both negligence and wanton and willful conduct, and consequently cannot be compared with them. Instead, we view intentional wrongdoing as "different in degree" from either negligence or wanton and willful conduct.... Neither that difference nor the divergence between intentional conduct and negligence precludes comparison by a jury. The different levels of culpability inherent in each type of conduct will merely be reflected in the jury's apportionment of fault. By viewing the various types of tortious conduct in that way, we adhere most closely to the guiding principle of comparative fault--to distribute [650 So.2d 727] the loss in proportion to the respective faults of the parties causing that loss. Thus, consistent with the evolution of comparative negligence and joint-tortfeasor liability in this state, we hold that responsibility for a plaintiff's claimed injury is to be apportioned according to each party's relative degree of fault, including fault attributable to an intentional tortfeasor.

Apportionment of fault between intentional and negligent parties will not eliminate the deterrent or punitive aspects of tort recovery. Where tortious conduct merits punitive as well as compensatory damages, a plaintiff's comparative fault will reduce recovery only of compensatory damages.

590 A.2d at 231. Moreover, the court rejected the argument that the business owner whose negligence facilitated the commission of a crime on its property would be any less compelled to protect against such future actions by assessing damages in proportion to fault. Id. at 233.

Recapping, the comparison of an intentional tortfeasor's fault against a negligent tortfeasor's fault is consistent both with the statutory language and the underlying policies of the Louisiana comparative fault law and the concept of limited solidary liability between joint tortfeasors.

Applying the above principles to the facts of the instant case, I would first conclude that the lower courts erred, as a matter of law, in failing to require the allocation of fault between the negligent defendant, Southmark, and the intentional tortfeasor, the phantom rapist. Unquestionably, there was evidence that the rapist's despicable criminal acts were the most significant contributory cause of plaintiff's damages, thus requiring under LSA-C.C.P. Art. 1812(C) and Gauthier, supra, the allocation of fault to the phantom rapist. The lower courts thus erred in allocating all the fault to Southmark, requiring that the JNOV be vacated. While neither lower court considered the rapist's fault, this court should, based on the complete [93-2818 La. 11] record before us, reallocate the fault among the parties and amend the judgment accordingly. Gonzales v. Xerox Corp., 320 So.2d 163 (La.1975); Otto v. State Farm Mut. Auto. Ins. Co., 455 So.2d 1175 (La.1984); Ragas v. Argonaut Southwest Ins. Co., 388 So.2d 707 (La.1980); Rossell v. ESCO, 549 So.2d 840 (La.1989).

As to plaintiff, the lower courts correctly concluded that she was free from fault. In this regard, I agree with the court of appeal that the record is devoid of any evidence to support a finding that plaintiff somehow was responsible for her own rape. Veazey, 625 So.2d at 681. Likewise, I agree with the majority opinion that the lower courts did not manifestly err in concluding that Southmark was at fault, despite Southmark's vigorous contentions to the contrary.

I now address the question of how to allocate fault between Southmark and the phantom rapist. In this regard, I note the reality that a jury ordinarily will apportion the lion share of the fault to the intentional tortfeasor and the remaining fault to the negligent parties according to their level of culpability. Dear & Zipperstein, supra. I further note, as the Louisiana appellate courts have recognized in applying comparative fault principles to assault and battery cases, that the factors we articulated in Watson v. State Farm Fire and Cas. Ins. Co., 469 So.2d 967 (La.1985), are well-suited for assisting in this comparison. Specifically, Watson sets out the following factors for apportioning fault among joint tortfeasors:

In assessing the nature of the conduct of the parties, various factors may influence the degree of fault assigned, including: (1) whether the conduct resulted from inadvertence or involved an awareness of the danger, (2) how great a risk was created by the conduct, (3) the significance of what was sought by the conduct, (4) the capacities of the actor, whether superior or inferior, and (5) any extenuating circumstances which might require the actor to proceed in haste, without proper thought. And, of course, as evidenced by concepts such as last clear chance, the relationship between the fault/negligent conduct and the harm to the plaintiff are considerations in determining the relative fault of the parties.

Id. at 974. Moreover, we noted in Watson that " '[i]n determining the percentages of fault, the trier of fact shall consider both the nature of the conduct of each party at fault [650 So.2d 728] and the extent of the causal relation between the conduct and the damage claimed.' " Id. It follows that the concept of comparative causation we adopted in Howard v. Allstate Ins. Co., 520 So.2d 715 (La.1988), for strict liability cases can also be used in making this comparison.

Applying the Watson factors and comparative causation to the instant facts, I find that although Southmark's negligence contributed to plaintiff's injury, its negligence was not the [93-2818 La. 12] major cause of plaintiff's damages; the major cause of plaintiff's damages was the rapist's conduct. Accordingly, I would find the appropriate allocation of fault to be 90% to the phantom rapist and 10% to Southmark.

As noted, the issue before us has a second facet: how to treat the fault assessed to the nonparty intentional tortfeasor? Stated otherwise, having decided that the nonparty, intentional tortfeasor's fault must be quantified and having quantified that fault, it must now be decided how to treat the intentional tortfeasor's fault which is thus determined. One commentator suggests that the ratio approach adopted in Gauthier v. O'Brien, 618 So.2d 825 (La.1993), for the employer-employee-third party tortfeasor setting, should likewise be adopted for the phantom tortfeasor setting. D. Robertson, Solidary Liability in Tort: Understanding Gauthier and Touchard, Who Pays How Much?, Part 2, 41 La.Bar J. 334, 335 (1993) (suggesting that "[t]here is no good reason not to use the ratio approach so as to treat all phantom tort-feasors the same way"). The commentator concedes, however, that Gauthier can be read as limiting the ratio approach to "parties," given the following language in Gauthier, "the judge, after the jury has returned a verdict, should disregard the proportion of fault assessed to the employer and reallot the proportionate fault of all other blameworthy parties." Gauthier, 618 So.2d at 833 (emphasis supplied).

There is a difference between an immune tortfeasor (specifically an employer immune from tort liability under the worker's compensation law) and a tortfeasor who is subject to liability, solidarily to an extent with the defendant tortfeasor, but is not a party to the suit for one reason or another, perhaps plaintiff's choice or, as in this case, because identity of the tortfeasor is unknown.

Application of the ratio approach of reallocating employer fault on the basis of proportionate fault of other blameworthy parties in Gauthier, supra, was done in the context of the employer-employee-third party tortfeasor setting in order to minimize the adverse impact on the employee by reason of the employer's fault, consistent with the worker's compensation-statutory immunity scheme. It does not necessarily follow that the ratio approach should be applied outside of the worker's compensation-statutory immunity setting to a case in which the nonparty tortfeasor is not statutorily immune from liability, and does not have any special relationship to plaintiff.

[93-2818 La. 13] Absent the special circumstances arising in the employer-employee-third party tortfeasor setting, the application of the ratio approach should not be extended, and the provisions of LSA-C.C. Art. 2324 should be applied in a straightforward manner. The fault of all parties should be quantified. Applying my findings in this case, under LSA-C.C. Art. 2324, defendant Southmark's liability based on 10% fault is solidary with that of the nonparty, intentional tortfeasor to the extent of 50% of plaintiff's recoverable damages and to that extent a portion of the nonparty's fault is, in effect, allocated to defendant. Allocation to defendant of the entire 90% fault of the nonparty intentional tortfeasor on a ratio basis in this case in which plaintiff is free from fault would result in casting the 10% at fault, negligent tortfeasor for 100% of the plaintiff's damages, a result entirely contrary to the provisions of LSA-C.C. Art. 2324, which limit that tortfeasor's solidary liability to 50% of plaintiff's damages. While the plaintiff's recovery is, of course, adversely affected more than if the nonparty tortfeasor's fault were ignored or allocated on a ratio basis, the plaintiff nonetheless is permitted to recover a large part of her damages--substantially more than the negligent defendant's proportionate share of the fault--which is an equitably justifiable result.

[650 So.2d 729] For the reasons set forth in this dissent, I would amend the judgment of the trial court, as affirmed by the court of appeal, to reallocate fault 10% to the defendant, Southmark Management Corporation, and 90% to the nonparty, phantom rapist, and to cast Southmark for 50% of plaintiff's damages, that is, $90,000.

[93-2818 La. 1] LEMMON, Justice, dissenting.

The comparative fault system in Louisiana, which became effective in 1980, has proved to be fair and equitable. Much of this fairness is attributable to the simplicity of the system. Human beings learn from childhood to attribute fault, and while there have been exceptions, jurors have handled their duties well in the comparative fault system.

Another factor in the success of comparative fault is that this court has applied the system uniformly across the board, without exception. Prior attempts in this court to create exceptions have arisen in the context of comparing the tortfeasor's fault with the tort victim's contributory negligence, and this court, cognizant of the myriad of exceptions that had been created in reaction to the harshness of the all-or-nothing contributory negligence system, has declined to approve exceptions that were no longer necessary.^[1]

[93-2818 La. 2] The majority has now created an exception in this case, purportedly because of the difficulty of comparing negligent conduct with intentional conduct. But negligent acts and intentional acts are simply two different degrees of "fault," a term in La.Civ.Code art. 2315 that this court has long recognized includes more than mere negligence. See Langlois v. Allied Chem. Corp., 258 La. 1067, 249 So.2d 133 (1971); Inabnet v. Exxon Corp., 642 So.2d 1243 (La.1994). Negligent torts and intentional torts are not different in kind, but rather are different in degree. Blazovic v. Andrich, 124 N.J. 90, 590 A.2d 222 (1991).

In the present case, the fault of two tortfeasors combined to produce the single injury to the tort victim. In such a case, solidary liability for the damages from the victim's injury arises by operation of law. La.Civ.Code art. 2324. The Civil Code also prescribes the operation of solidarity, both as between the tortfeasors themselves, La.Civ.Code art. 1804, and in relation to the fault of the tort victim, La.Civ.Code art. 2324.

The solidarity prescribed by the Civil Code for joint tortfeasors is the underlying reason why the majority refuses to consider an intentional tortfeasor and a negligent tortfeasor as joint tortfeasors (although the fault of each unquestionably combined to produce a single injury). Because the Legislature in 1987 placed a limitation on solidarity, the result of comparing the fault of an intentional tortfeasor with that of a negligent tortfeasor is to reduce the tort victim's recovery when the negligent tortfeasor is solvent and the intentional tortfeasor is an insolvent or unidentified criminal.^[2] Nevertheless, the fact that the Legislature has seen fit to limit the civilian concept of solidarity should not induce [93-2818 La. 3] this court to vary from our consistent policy of applying comparative fault across the board, at least as between tortfeasors.

The majority's position that comparing negligent conduct with intentional conduct is difficult simply does not ring true. As stated earlier, negligent conduct and intentional conduct are not different in kind, but are only different in degree. The spectrum of degrees of fault runs from simple negligence to gross negligence to willful and wanton conduct to intentional conduct. No one has ever suggested that simple negligence by one [650 So.2d 730] tortfeasor should not be compared to gross negligence by a second tortfeasor when the conduct of the multiple tortfeasors combines to produce a single injury, even though the two are different in degree. Difficulty of comparison is a hollow basis for refusing to apply comparative fault uniformly.^[3]

One could more rationally argue that one tortfeasor's negligence cannot or should not be compared with another's strict liability. Consider, for example, the facts of Dusenbery v. McMoRan Exploration Co., 458 So.2d 102 (La.1984), a pre-comparative fault case. There, the plaintiffs' decedent was killed when McMoRan's well exploded because a welding subcontractor had installed a nipple in the well's pressure system that was lighter than the nipple required by the specifications. McMoRan, who was strictly liable solely because of its status as [93-2818 La. 4] owner of the well, was held solidarily liable to the plaintiffs for their damages, although McMoRan was allowed one hundred percent indemnity against the welding contractor. Had this accident occurred during the comparative fault regime, one would have difficulty in comparing the welding contractor's negligence with any "fault" on the part of the strictly liable defendant.

Nevertheless, since the advent of comparative fault, this court has applied comparative fault in a strict liability situation (although the case did not involve multiple tortfeasors).^[4] In Howard v. Allstate Ins. Co., 520 So.2d 715 (La.1988), this court compared the fault of a strictly liable defendant with that of a contributorily negligent tort victim, when an eleven-year old girl went through two gates and a "Beware of Dog" sign into a yard where she was bitten by defendant's dog. This court affirmed the trial court's finding of fifty percent fault by the child. See also Landry v. State of Louisiana, 495 So.2d 1284 (La.1986) (comparative fault applies to reduce the recovery of a plaintiff under La.Civ.Code art. 2317 against the strictly liable Levee Board when the plaintiff negligently failed to see the hole in the ground next to the sea wall). The comparison of fault in a strict liability situation is much more conceptually difficult than a comparison between negligent and intentional conduct. Nevertheless, uniform application of a comparative fault system dictates application of the less conceptually difficult comparison of the fault of a rapist with the fault of an apartment manager whose negligence made the rapist's entry into the victim's apartment easier to accomplish and contributed to the victim's single injury.

[93-2818 La. 5] Finally, while deterrence of substandard conduct is a major goal of the tort system, I cannot say that the legislative mandate requiring payment of fifty percent of the tort victim's total damages by a tortfeasor who is perhaps ten percent at fault will not serve a deterrent purpose.

[93-2818 La. 1] CALOGERO, Chief Justice, concurring in denial of rehearing.

I concur in the denial of rehearing because I agree that the result reached in the original hearing of this case, i.e. allowing the plaintiff to recover 100% of her damages from the negligent tortfeasor, Southmark, was a correct one and should not be disturbed. I would vote to grant a rehearing revisiting [650 So.2d 731] only the legal issues, but reconfirming the judgment on original hearing, if there were a majority agreeing upon a legal rationale in support of the majority's result on original hearing. See Lone Star Industries, Inc. v. American Chemical, 491 So.2d 1333 (La.1986) (on rehearing ). However, since I perceive the Court to be badly split on this issue, and since I note that at least four justices agree with the result on original hearing, I vote to deny rehearing in this case.

I write separately to voice my disagreement (for the same reasons set forth in the dissenting opinion of Justice Hall) with the rationale of the majority opinion, essentially that a trial court may elect, on an ad hoc basis, to withhold from the jury consideration of the fault of an intentional tortfeasor. See Gauthier v. O'Brien, 618 So.2d 825 (La.1993); Lemire v. NOPSI, 458 So.2d 1308 (La.1984). In my opinion the relevant articles of our Civil Code establish a preferable mode of analysis which obviates the need to allocate fault between the intentional and negligent tortfeasors in this case, preserving the 100% recovery of the plaintiff from the negligent defendant, Southmark.

[93-2818 La. 2] I. The majority opinion misapplies the concept of comparative fault

The majority opinion as well as the dissenting opinions discuss extensively why "comparative fault" principles should apply in this case. "Comparative fault" is defined by LSA-C.C. Art. 2323, and should apply only to a comparison of fault between a plaintiff and a defendant. The practice of allocating fault between defendants does not arise because of "comparative fault" principles, but rather as a process of determining the "virile portion" of a defendant's share of a solidary obligation. See LSA-C.C. Arts. 1797, 1804. The majority's decision to extend a "comparative fault" mode of analysis to the allocation of fault among solidary tortfeasors is an unnecessary extension of the jurisprudence explaining LSA-C.C. Art. 2323 to an area of law which is controlled instead by the codal articles treating solidary obligations, particularly LSA-C.C. Art. 1804.

Much of the confusion in this area is attributable to the 1987 amendment to LSA-C.C. Art. 2324(B),^[1] which limited the liability of a negligent tortfeasor solidarily liable with another tortfeasor to his percentage of fault or 50% of total recoverable damages, whichever was greater. Before 1987, there was no need to quantify a percentage of fault among solidary tortfeasors other than for purposes of contribution among them; the plaintiff could collect 100% of his damages, minus any amount dictated by application of [93-2818 La. 3] the "comparative fault" rule of LSA-C.C. Art. 2323, from any defendant. After the 1987 amendment, however, it was necessary to quantify the fault of multiple tortfeasors not only for purposes of contribution among the defendants, but also to determine how much a plaintiff could recover from a particular defendant. Comparative fault, properly understood, was not part of this equation; it could reduce the plaintiff's total recovery, but it did not authorize or influence the allocation of fault among solidarily liable defendants.

I therefore submit that both the majority and the dissenting opinions in this case err in the scope which they accord the doctrine of "comparative fault" in Louisiana. If this doctrine is to be applied by analogy to the allocation of fault among codefendants, that may be this Court's prerogative, but it should be recognized that these "comparative fault" [650 So.2d 732] principles are being lifted from one context and applied in another. I submit further that this is being done in derogation of the express provisions of the Civil Code which are crafted specifically to deal with the allocation of fault among solidary tortfeasors.

For this reason, I dispute the proposition that this case requires the application of "comparative fault" principles at all. Rather, recourse to our Civil Code provides authority for a more orderly and systematic disposition of this case.

II. Should we "compare" intentional and negligent torts?

As stated above, the answer to the question of whether a negligent plaintiff's recovery should be reduced by damage occasioned by an intentional tortfeasor does not involve any issue of "comparative fault." Rather, in my view, the question is simply whether under LSA-C.C. Art. 1804 we should compare and apportion the "fault" of intentional and negligent tortfeasors.

Whenever the delictual "fault" of a number of persons causes a single injury to a plaintiff, those persons are solidarily bound to repair the damage occasioned by their "fault." LSA-C.C. Arts. 2315 et seq., 1790, 1797. Under LSA-C.C. Art. 1804, "[a]mong solidary obligors, each is liable for his virile portion." "If the [93-2818 La. 4] obligation arises from an offense or quasi-offense, a virile portion is proportionate to the fault of each obligor." LSA-C.C. Art. 1804. Thus, LSA-C.C. Art. 1804 requires that any party at "fault" bears responsibility, in accordance with the proportion of their "fault," for the injured party's damages.

The concept of "fault" in our Civil Code is broad, and as Justice Hall's dissent observes, it clearly includes intentional torts. As Planiol puts it, "[i]n most cases^[2] the intention to harm is not taken into consideration: it is not upon such intention that the licit or illicit character of the act depends." 2 Planiol, Treatise on Civil Law, § 871(B) (11th ed. 1939). When both an intentional and negligent tortfeasor through their "fault" cause injury to a plaintiff, their liability under the general codal scheme is solidary, and therefore a straightforward application of the first paragraph of LSA-C.C. Art. 1804 would seem to indicate that the proportion of fault attributable to each tortfeasor should be determined.

We note that this first paragraph of LSA-C.C. Art. 1804 is limited by the prefix "[a]mong solidary obligors;" in other words, it only operates to regulate contribution among the tortfeasors. Recovery by an injured plaintiff, the delictual obligee, is treated by LSA-C.C. Art. 1790, which gives the injured plaintiff the right to demand the entire performance, i.e. total recoverable damages, from any party at "fault." In the delictual context the general provision of LSA-C.C. Art. 1790 is in turn modified by LSA-C.C. Art. 2324(B), which provides that in the particular setting of solidary tortfeasors other limitations upon a plaintiff's recovery, e.g. the 50% cap on solidarity, apply. However, LSA-C.C. Art. 2324 does not require or even purport to affect the allocation of fault among solidarily liable tortfeasors. Rather, it merely interposes a limitation upon the total recovery of the plaintiff contemplated by the naked application of LSA-C.C. Art. 1790, a limitation that by legislative design mirrors, but does not directly affect, the [93-2818 La. 5] allocation of fault among solidarily liable tortfeasors required by the first paragraph of LSA-C.C. Art. 1804.

A strict application of the first paragraph of LSA-C.C. Art. 1804 would therefore seem to mandate that an intentional and a negligent tortfeasor who are solidarily liable for a plaintiff's damage both be assigned a "virile portion" which is in direct proportion to their amount of "fault." When this allocation of fault is then viewed in the context of the plaintiff's recovery, it also seems that the limitation of LSA-C.C. Art. 2324(B) should then, as Justice Hall suggests, be applied to limit or modify the recovery of the plaintiff. However, I posit that this result only obtains until recourse is made to the express provisions [650 So.2d 733] of the third paragraph of LSA-C.C. Art. 1804.

III. LSA-C.C. Art. 1804 sets out the controlling legal scheme for addressing the difficulties presented by intentional and negligent tortfeasors in the same case

LSA-C.C. Art. 1804, as aforementioned, is the codal basis for the apportionment of fault among solidarily liable tortfeasors. In our current tort scheme, under LSA-C.C. Art. 1804 a determination of the proportion of fault of each tortfeasor is necessary to establish the "virile portion" of that tortfeasor's obligation. Were we still under the rule of complete solidarity, for a case such as the instant one where the plaintiff is not at fault it would be unnecessary to quantify any defendant's fault for purposes of establishing the amount a plaintiff could recover from any particular defendant. Instead, the quantification of a defendant's fault would only be relevant for a contribution action by, in this case, Southmark against the rapist; in the tort suit by the plaintiff, Southmark as a solidary obligor would be liable for the whole. Since 1987, however, LSA-C.C. Art. 2324(B) has forced the trier-of-fact to quantify the defendants' fault in the plaintiff's suit as well, in order to determine the plaintiff's recovery.

I maintain, however, that LSA-C.C. Art. 1804 must be applied in its entirety before the cap on solidarity set forth in LSA-C.C. Art. 2324(B) becomes operative. When the third paragraph of LSA-C.C. Art. 1804 is applied in this case, the need to apply LSA-C.C. [93-2818 La. 6] Art. 2324 is obviated.

The third paragraph of LSA-C.C. Art. 1804 states that "[i]f the circumstances giving rise to the solidary obligation concern only one of the obligors, that obligor is liable for the whole to the other obligors who are then considered only as his sureties." As will be more fully explained infra, applicable civilian precepts suggest that a showing of the commission of an intentional tort as opposed to mere negligence should be read to be such a "circumstance." Therefore, negligent tortfeasors who are solidarily liable with the intentional tortfeasor are, by operation of law, transformed into the sureties of the intentional tortfeasor. The limiting provisions of LSA-C.C. 2324(B) accordingly never become operative because that article only addresses solidary tortfeasors; through the third paragraph of LSA-C.C. Art. 1804, however, the basis of the negligent tortfeasor's liability is no longer as a solidarily bound tortfeasor, but rather as a surety to the intentional tortfeasor's obligation to the plaintiff.

A. The application of the third paragraph of LSA-C.C. Art. 1804 to delictual obligations

Prior to the comprehensive codal revision of 1984, the legal principle currently embodied in the third paragraph of LSA-C.C. Art. 1804 was contained in LSA-C.C. Art. 2106 (1870), which provided that "[i]f the affair for which the debt has been contracted in solido, concern only one of the coobligors in solido, that one is liable for the whole debt towards the other codebtors, who, with regard to him, are considered only as his securities." Prior to the 1984 revision of the Civil Code this article existed "without amendment" from our original Civil Code of 1805. Maryland Cas. Co. v. Liberty Mut. Ins. Co., 254 La. 489, 224 So.2d 465, 468 (1969). As is clear from the text of prior C.C. Art. 2106, the earlier incarnation of this provision was expressly addressed only to conventional obligations, i.e. contracts.

In the 1984 revision, however, a number of related articles from the Civil Code of 1870 were grouped into the current LSA-C.C. Art. 1804, which now reads as follows:

[93-2818 La. 7] Art. 1804. Liability of solidary obligors between themselves

Among solidary obligors, each is liable for his virile portion. If the obligation arises from a contract or quasi-contract, virile portions are equal in the absence of agreement or judgment to the contrary. If the obligation arises from an offense or quasi-offense, a virile portion is proportionate to the fault of each obligor.

A solidary obligor who has rendered the whole performance, though subrogated to the right of the obligee, may claim from the obligors no more than the virile portion of each.

[650 So.2d 734] If the circumstances giving rise to the solidary obligation concern only one of the obligors, that obligor is liable for the whole to the other obligors who are then considered only as his sureties.

Clearly this article as a whole is intended to apply to both conventional and delictual obligations, since the specific rules for each are set out in the first paragraph. In addition, the specific language of the earlier codal provision limiting the effect of what is now the third paragraph of LSA-C.C. 1804 to an obligation "which ... has been contracted in solido " has been deleted; the current article now speaks in terms of a "solidary obligation." In light of the scope of the first paragraph of LSA-C.C. Art. 1804, which expressly embraces both conventional and delictual obligations, it can be presumed that the second and third paragraphs, which address themselves to the broad realm of "obligations," apply to delictual obligations as well.^[3]

In addition, the former LSA-C.C. Art. 2106 was located in Title IV of Book III of the Civil Code, entitled "conventional obligations." Now, after the revision, new article LSA-C.C. Art. 1804 is located in Title III of Book III, entitled "obligations in general." This is even more evidence that the revised article is [93-2818 La. 8] intended to apply to delictual as well as conventional obligations, whereas the former LSA-C.C. Art. 2106 was confined solely to conventional obligations.

Given this, what does the third paragraph of LSA-C.C. Art. 1804 mean in the delictual context? If we assume it means nothing, then the amendments and revisions discussed in the preceding paragraphs are rendered meaningless. If we assume it means something, then this article must contemplate a distinction amongst the degrees of "fault," since under our codal scheme "fault" is the sole basis of delictual liability. I agree with the majority's conclusion that intentional wrongdoing differs from negligence not only in degree but in kind, and note that there is support for this distinction in the commentaries of Planiol.^[4] Furthermore, I think that neither the first paragraph of LSA-C.C. Art. 1804 nor LSA-C.C. Art. 2324(B) lend themselves readily to the comparison of such "apples and oranges." Rather, it is my view that the Civil Code provides different rules in cases which feature tortfeasors with varying levels of blameworthiness, rules that are designed to do substantial justice, in light of the policies which compel the [93-2818 La. 9] imposition of delictual responsibility, to all parties involved.

[650 So.2d 735] There is also some precedent supporting the view that courts should acknowledge, in certain contexts, gradations of "fault" in the tort indemnity concepts discussed in Dusenbery v. McMoran Exploration Co., 458 So.2d 102 (La.1984). Although it is true that Dusenbery applied only to a strictly liable defendant seeking indemnity from a negligent defendant, the analogy is apt since the basis of Dusenbery was that the strictly liable defendant was "less" at fault than the negligent defendant.^[5] The manner of the recovery in Dusenbery, tort indemnity, is practically indistinguishable from the recovery of a surety who has paid the debt of a principal obligor and then may recover from that obligor through subrogation or reimbursement.

I note that I do not read article LSA-C.C. Art. 1804 to mimic or codify Dusenbery; rather, I merely recognize that there is a principle in our jurisprudence for distinguishing degrees of fault and regulating recovery among the tortfeasors. It seems to me sensible to group the vague and rootless doctrine of tort indemnity espoused in Dusenbery (which as an examination of Appalachian Corp., see Note 5, supra, reveals was an importation into our jurisprudence from common law jurisdictions), under the express provisions of LSA-C.C. Art. 1804, i.e. Louisiana codal law. I also observe that the idea of changing the legal relationship of tortfeasors who are guilty of different degrees of fault from that of solidary tortfeasors to some other specie of solidary or vicarious liability (as LSA-C.C. Art. 1804 suggests, suretyship for the negligent tortfeasors who is guilty of a "lesser" degree of fault than the intentional tortfeasor) has been suggested at [93-2818 La. 10] various times by this Court. See, e.g., Hunt v. City Stores, Inc., 387 So.2d 585, 590 (La.1980) ("In the absence of some greater fault being shown on the part of either, the obligation is solidary").

Furthermore, in the case in which there is an intentional tortfeasor this disposition advances the legislative intent expressed by LSA-C.C. Art. 2324. Paragraph A, which provides that there is 100% solidarity between two intentional tortfeasors who "conspire" to cause injury, reveals that the Legislature intended for intentional tortfeasors to be 100% responsible for damages they cause and that they not be subjected to the 50% limitation (related to the "virile portion" or proportion of fault discussed in LSA-C.C. Art. 1804) upon the solidarity of negligent tortfeasors found in Paragraph B. If we compare intentional and negligent tortfeasors without distinction, as several of the dissenting opinions seem to indicate we should, this legislative directive is undermined. The application of the third paragraph of LSA-C.C. Art. 1804, as interpreted herein, eliminates this problem by ensuring that a case presenting a mixture of intentional and negligent tortfeasors never gets to LSA-C.C. Art. 2324. LSA-C.C. Art. 2324 is meant to be a limitation upon solidarity in tort; if negligent tortfeasors are viewed as sureties of the intentional tortfeasors, LSA-C.C. Art. 2324 would not apply to limit their obligation because the amount that they owe would be based not upon their own delictual responsibility but solely upon the obligation of the principal obligor, i.e. the intentional tortfeasor.

B. Application of these principles to this case

In Great S.W. Fire Ins. v. CNA Ins., 557 So.2d 966, 969 (La.1990), this Court discussed how LSA-C.C. Art. 1804, in conjunction with other relevant codal articles, works in a contractual context:

In general, the solidary obligor who extinguishes the debt is entitled to a right of contribution against his codebtors, but must divide his action so that he can demand from each one of them no more than his virile portion. La.C.C. art. 1804. There are exceptions to the rule, however. [650 So.2d 736] If the obligation arises from a contract or quasi-contract, the circumstances or agreement by the parties may cause the court to apportion liability differently. It may also appear that one of the obligors should be liable for the whole debt because he is to be considered as the principal obligor. La.C.C. art. 1796. [93-2818 La. 11] See also Levasseur, supra, at 103-104. In such a case the other obligors will stand as sureties for the principal obligor. La.C.C. arts. 1804, 3035, 3037.

The transposition of this scheme to a delictual setting can be illustrated by the facts of the instant case.

In this case, there is an intentional tortfeasor, the rapist, and a negligent tortfeasor, Southmark, the liability of both being a proper subject for the consideration of the trier-of-fact. The nature of the obligation owed by each, as previously discussed, is different. Therefore, upon a finding of liability based upon different degrees of delictual "fault," by operation of the third paragraph of LSA-C.C. Art. 1804 the treatment of Southmark's liability should no longer fall under the delictual articles, e.g. the 50% cap on solidarity in LSA-C.C. Art. 2324, but rather under the suretyship articles. In other words, the basis for the plaintiff's recovery against Southmark is no longer founded solely in tort; rather, Southmark is transformed by operation of law into a surety of the rapist's obligation towards the plaintiff, and the suretyship articles provide the mechanism for the plaintiff's recovery from Southmark and Southmark's recourse against the intentional tortfeasor.

Under this approach, the result in this case is the same; Southmark owes 100% of the obligation owed by the intentional tortfeasor as surety to that debt. Southmark, having paid that debt, enjoys all of the rights of reimbursement and subrogation against the intentional tortfeasor, should he ever be located, sued, and cast in judgment, that a surety who has performed the principal obligation has against a principal obligor under the suretyship articles. There is no matter of "comparing" fault or determining whether a party at fault should be allocated blame; comparative fault, properly understood and applied, i.e. a comparison of plaintiff and defendant(s) fault, is a matter reserved for assessing relative blame between the plaintiff and the intentional tortfeasor. Since Southmark through LSA-C.C. Art. 1804 is only liable as surety for the intentional tortfeasor, it may not urge a comparison of its fault to the plaintiff; rather, the [93-2818 La. 12] derivative nature of Southmark's liability under the applicable codal articles instructs that it is the comparison of the fault of the intentional tortfeasor and the plaintiff, if such a comparison is warranted by an application of "comparative fault" principles, that is proper. If the rapist is cast for the 100% of damages,^[6] Southmark as surety (assuming negligence on Southmark's behalf, which is the case here) has to pay, and its recourse against the rapist is under the suretyship articles.^[7]

Thus, under the facts of this case LSA-C.C. Art. 2324 never comes into play because under our analysis only the intentional tortfeasor ever becomes amenable to the application of LSA-C.C. Art. 2324, the negligent tortfeasor having been removed from its operation and relegated to treatment under the suretyship articles by the third paragraph of LSA-C.C. Art. 1804. That is because prior to the application of the provisions of LSA- [650 So.2d 737] C.C. Art. 2324(B), the third paragraph of LSA-C.C. Art. 1804 mandates that Southmark's quasi-delictual liability be treated not under the delictual articles, but rather under the suretyship articles. There is therefore no need to allocate fault among the tortfeasors; Southmark's liability, although quasi-delictual in origin, is derivative of the rapist's delictual liability, see Note 4, supra, and since the rapist is an intentional tortfeasor and the plaintiff is not at fault the rapist is responsible for 100% of the [93-2818 La. 13] plaintiff's damages.^[8]

IV. Conclusion

In this case, the plaintiff was not at fault; therefore, the liability of the tortfeasors should be 100%. Furthermore, the application of LSA-C.C. Art. 1804, particularly its third paragraph, leads me to the conclusion that in this case the basis of Southmark's liability to the plaintiff should be in its role as surety, by operation of law, to the intentional tortfeasor/rapist. Accordingly, the plaintiff should be able to recover 100% of her damages from the negligent tortfeasor as surety to the delictual obligation of the intentional tortfeasor. Once that recovery has occurred, the negligent tortfeasor is able to seek whatever remedies the suretyship articles afford him against the principal obligor/intentional tortfeasor.

As this result indicates, the system that I make recourse to does not impair the recovery of the plaintiff in any way; thus, I concur in the result on original hearing and concur in the denial of rehearing. This approach only has a substantial application to situations where there exist different degrees of fault, e.g. intentional tort v. negligence v. strict liability, situations which have been treated often, albeit less than systematically, in our jurisprudence.

In this particular case although the rapist bears complete blame for his act, a conclusion which is at least as deeply ensconced in common sense as it is in legal principle, nevertheless the injured party is entitled to collect 100% of her damages from the negligent tortfeasor. Furthermore, this system also ties the hazy notion of "tort indemnity" to a solid codal basis, reserving to the negligent tortfeasor who is cast in judgment extensive recovery rights under the suretyship articles against the intentional tortfeasor.

It should be stated that the approach endorsed herein would not impact at all the large majority of cases where fault is similar in kind, albeit possibly in different proportions, e.g. several negligent tortfeasors. Shifting our analysis to the general obligations articles and away from the exhausted language of LSA-C.C. Arts. 2323 and 2324 would, however, allow this Court to stop treating problems such as those presented in this case on an ad hoc basis and allow more ready recourse to the time-honored and considered legal system of our Civil Code.

Thus, for the reasons presented herein, I respectfully concur in the denial of the application for rehearing.

ON REHEARING

WATSON, Justice, concurring in denial of rehearing.

I concur to emphasize my disagreement with the majority's determination that the trial court must decide on a case-by-case basis whether intentional and negligent fault should be compared.

As I stated in my original concurrence, intentional fault cannot be logically compared with negligent fault or the fault of the injured victim.

I respectfully concur in denial of rehearing.

[*] Justice Revius O. Ortique, Jr., retired, participating in the decision by assignment, the case having been argued prior to his retirement.

Justice Marcus not on the panel. Rule IV, Part 2, § 3. Judge Charles A. Marvin, Chief Judge, Court of Appeal, Second Circuit, sitting in place of Dennis, J.

[1] La.Code Civ.Pro. art. 1812(C)(2), provides:

C. In cases to recover damages for injury, death, or loss, the court may submit to the jury special written questions inquiring as to:

(2) If appropriate, whether another person, whether party or not, other than the person suffering injury, death, or loss, was at fault, and, if so:

(a) Whether such fault was a legal cause of the damages, and, if so:

(b) The degree of such fault, expressed in percentage.

[2] The relevant interrogatories and the jury's responses are follows:

INTERROGATORY NO. 1:

With respect to the defendant, Southmark Management Corporation: Was Southmark Management Corporation at fault with respect to the incident and did the fault produce or substantially contribute to the incident?

Yes No

INTERROGATORY NO. 2:

With respect to the plaintiff, Christi Veazey: Was the plaintiff, Christi Veazey, at fault with respect to the incident and did that fault produce or substantially contribute to the incident?

Yes No

INTERROGATORY NO. 3:

What percentage of Ms. Veazey's damages do you find were caused by Southmark Management Corporation, if any? What percentage of Ms. Veazey's damages should be reduced by the fault of Ms. Veazey, if any?

Southmark Management Corporation [60%]

Ms. Christi Veazey [40%]

(Percentage must total 100%)

[3] Act 331 of 1984 (effective January 1, 1985), which rewrote the Civil Code provisions on obligations, moved the rules regarding contribution contained in former La.C.C. art. 2103 to La.C.C. arts. 1804 and 1805. The official revision comments to those articles indicate that the revision did not change the law. Cole v. Celotex, 599 So.2d 1058, 1068 n. 31 (La.1992).

[4] Act 534 of 1983 moved the contents of former La.Code Civ.Pro. art. 1811 to La.Code Civ.Pro. art. 1812(C) and added the phrase "whether party or not" to Article 1812(C)(2) to clarify that nonparties' fault may be considered. See Official Revision Comments to La.Code Civ.Pro. art. 1812. La.Code Civ.Pro. art. 1917, which deals with nonjury cases, cross references La.Code Civ.Pro. art. 1812(C), providing that "the court shall make specific findings that shall include those matters to which reference is made in Paragraph C of Article 1812 of the Code."

[5] La.C.C. art. 1804 provides that "among solidary obligors, each is liable for his virile share" and when that "obligation arises from an offense or quasi-offense, a virile portion is proportionate to the fault of each obligor." The comments note that this approach is consistent with the theory of comparative negligence.

[6] La.C.C. art. 2323 provides:

When contributory negligence is applicable to a claim for damages, its effect shall be as follows: If a person suffers injury, death or loss as the result partly of his own negligence and partly as a result of the fault of another person or persons, the claim for damages shall not thereby be defeated, but the amount of damages recoverable shall be reduced in proportion to the degree or percentage of negligence attributable to the person suffering the injury, death or loss.

[7] La.C.C. art. 2315 provides, in pertinent part, as follows:

Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it. (Emphasis supplied).

[8] A "logomachy" is "a dispute over or about words." Webster's Ninth New Collegiate Dictionary (1990).

[9] As noted in Hebert, supra, the majority view among courts in other jurisdictions that have addressed this issue is that comparative fault is inapplicable to intentional torts. See A. Schwartz, Applicability of Comparative Negligence Principles to Intentional Torts, 18 A.L.R.5th 525, 532 (1994); H. Woods, Comparative Fault § 7.1 (2d Ed.1987); V. Schwartz, Comparative Negligence §§ 5.1 and 5.2 (2d Ed.1986). Speaking on this issue, the Uniform Comparative Fault Act generally follows the majority position, stating in the comments that "[t]he Act does not include intentional torts [because] statutes and decisions have not applied the comparative fault principle to them. But a court determining that the general principle should apply at common law to a case before it of an intentional tort is not precluded from that holding by the Act." Appendix, Uniform Comparative Fault Act (1979), 40 La.L.Rev. 419, 422 (1980).

[10] The lower courts correctly determined that the plaintiff herein was free from fault. We therefore need not, and do not, express any opinion in this case as to whether, or in what situations, if any, victim fault should be compared to the fault of an intentional tortfeasor.

[11] See, e.g., Pamela B. v. Hayden, et al., 25 Cal.App.4th 785, 31 Cal.Rptr.2d 147 (Cal.App.2d Dist.) writ granted, 33 Cal.Rptr.2d 568, 880 P.2d 112 (Cal.1994). In Pamela B., the plaintiff was raped in the garage of her apartment building. Plaintiff sued her landlord and the property management company in charge of her building, contending their inadequate attempts to provide a secure garage caused her rape. California law requires comparison of intentional torts and negligence, and the jury in this case awarded $1.2 million to plaintiff, attributing 95% of the fault to the landlord and management company, 4% to the man who raped her, and 1% to the rapist's accomplice who aided and abetted the rapist!

The appellate court reversed and remanded the case for a new trial on apportionment of damages, noting that "it is reasonable to assume the jury will apportion fault so that the one who acted intentionally should bear 'most if not all the blame'." (Citing Knott v. State of California, (1994) 23 Cal.App.4th 210, 234, 28 Cal.Rptr.2d 514). This proposition prompted one of the appellate court judges to note in his concurrence:

... But what allocation could be upheld on appeal? Is it not per se unreasonable to assess negligence at a higher rate than intentional, wanton criminal activity? Although the result would not be as shocking as what we have here, could we justify holding the owner and manager even 51 percent responsible?

It is ironic that plaintiff suffers reversal because her extremely able counsel was able to get such a result from the jury. Had the jury, for example, assessed the criminals at any higher percentage than the tortfeasors, the verdict would be easier to uphold. What is a trial lawyer to do? The more persuasive one is, the less likely the result will survive appeal. This turns the concept of advocacy on its ear. What kind of credibility does all this lend to the justice system?

Pamela B., 25 Cal.App.4th at 806, 31 Cal.Rptr.2d at 161 (Ortega, J., concurring).

The questions raised by the concurring judge in the Pamela B. case highlight the inherent difficulties advocates of comparing the fault of an intentional tortfeasor and a negligent tortfeasor have in addressing the common sense question: "in such a comparison, how can a rapist (or virtually any intentional tortfeasor) not be 100% liable for his actions?" The common sense answer, i.e., that the intentional tortfeasor is, by definition, always 100% liable for his intentional acts which have caused damages, simply serves to reinforce Dean Prosser's assessment that intentional wrongdoing "differs from negligence not only in degree but in kind...."

[12] While we are aware of the argument which has been advanced by at least one court and several commentators that the application of comparative fault principles in the context of strict liability is conceptually more difficult than application of such principles where fault is based on intentional wrongdoing and negligence, see Blazovic, supra; Dear & Zipperstein, supra at 2, this argument is based on the premise that strict liability torts are premised on a tortfeasor's status or relationship to the property or thing, and not on actual fault. Hence, the argument goes, if it is possible to compare the "fault" of one who has no actual fault (the strictly liable party) and one who does have actual fault (the negligent party), it certainly is possible to compare the "fault" of two parties (the intentional tortfeasor and a negligent tortfeasor) whose liability is based entirely on their actual fault.

This line of reasoning ignores the fact that while strict liability is based on the tortfeasor's status or relationship to the property or thing which caused the harm, determinations as to both liability and comparative fault are made on the basis of the strictly liable defendant's imputed knowledge of the of the risk, which in turn, is based on the party's status or relationship to the property or object which produced the harm. See Kent v. Gulf States Utilities Co., 418 So.2d 493, 497-98 (La.1982) ("Accordingly, in a strict liability case ... the standard for determining liability is to presume the owner's knowledge of the risk presented ... and then to determine the reasonableness (according to traditional notions of blameworthiness) of the owner's conduct, in light of that presumed knowledge." [Emphasis in original] ). As was stated in a concurring opinion in Kent, supra: "In strict liability, however, knowledge of the condition of the product is imputed to the defendant before the balancing test or negligence test is applied." Id. at 501 (Dennis J., concurring) (Emphasis added). See also T. Galligan, Jr., Strict Liability in Action: The Truncated Learned Hand Formula, 52 La.L.Rev. 323, 329 (1991) ("Lemmon's approach [in Kent, supra] reminds us that strict liability is negligence without knowledge." [Emphasis added]).

Therefore, in a case where comparative fault principles are being applied between the defendant whose liability is based on negligence and the defendant whose liability is based on strict liability, after the imputation of the knowledge element to the strictly liable defendant the determination being made as to the defendants' comparative fault is effectively one of negligence versus negligence. Such a comparison, in our view, is conceptually much simpler than a comparison of negligence based fault and fault based on an intentional act.

[13] As occurred in the instant case, the procedural mechanism by which a party may request submission to the jury of a special interrogatory regarding phantom tortfeasor fault is set forth in La.Code Civ.Pro. art. 1812(C)(2). See supra, note 1. Though we are aware of our prior holdings construing La.Code Civ.Pro. art. 1812(C), see, e.g., Gauthier v. O'Brien, 618 So.2d 825, 831 (La.1993) (holding that "[f]ailure to submit a special jury interrogatory to the jury to determine the fault, if any, of a third party constitutes error"); Lemire v. New Orleans Public Service, Inc., 458 So.2d 1308, 1309 (La.1984) (holding that "[w]hile La.C.C.P. art. 1812C provides that the court may (unless waived by all parties) submit special written questions to the jury, the apparent intent is that the court in such circumstances is required to submit the questions"), those cases involved comparisons of negligence. Hence, Gauthier and Lemire mandate the submission of such special interrogatory, when appropriate.

Submission of such a special interrogatory becomes appropriate in a negligence case when evidence supporting a finding of fault on the part of a phantom tortfeasor is presented. Brock v. Winn Dixie Louisiana, Inc., 617 So.2d 1234, 1238 (La.App. 3d Cir.), writ denied, 620 So.2d 848 (La.1993) (citing Devereux v. Allstate Ins. Co., 557 So.2d 1091 (La.App.2d Cir.1990)). When such evidence exists, the trial court's refusal to submit such special interrogatory to the jury to permit the allocation of fault to the phantom tortfeasor is erroneous. Gauthier, 618 So.2d at 831. However, submission of such an interrogatory in a strict liability case or an intentional tort case only becomes appropriate where the trial court has determined that the public policy bases discussed herein are not present.

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[1] By "phantom tortfeasor" is meant "anyone whose fault may have contributed to the plaintiff's injuries but who has neither settled with the plaintiff and been released from liability nor been made a party to the lawsuit." D. Robertson, Solidary Liability in Tort: Understanding Gauthier and Touchard, Who Pays How Much?, Part 2, 41 La.Bar J. 334 (1993).

[2] LSA-C.C.P. Art. 1812(C)(2) provides as follows:

C. In cases to recover damages for injury, death, or loss, the court may submit to the jury special written questions inquiring as to:

(2) If appropriate, whether another person, whether party or not, other than the person suffering injury, death, or loss, was at fault, and, if so:

(a) Whether such fault was a legal cause of the damages, and, if so:

(b) The degree of such fault, expressed in percentage. (Emphasis supplied).

[3] Solidary liability is the civilian equivalent to the common law joint and several liability concept. Touchard v. Williams, 617 So.2d 885, 889 (La.1993).

[4] LSA-C.C. Art. 2324, in its current form, provides in pertinent part as follows:

A. He who conspires with another person to commit an intentional or willful act is answerable, in solido, with that person, for the damage caused by such act.

B. If liability is not solidary pursuant to Paragraph A, or as otherwise provided by law, then liability for damages caused by two or more persons shall be solidary only to the extent necessary for the person suffering injury, death, or loss to recover fifty percent of his recoverable damages; however, when the amount of recovery has been reduced in accordance with the preceding Article, a judgment debtor shall not be liable for more than the degree of his fault to a judgment creditor to whom a greater degree of fault has been attributed. Under the provisions of this Article, all parties shall enjoy their respective rights of indemnity and contribution. Except as described in Paragraph A of this Article, or as otherwise provided by law, and hereinabove, the liability for damages caused by two or more persons shall be a joint, divisible obligation, and a joint tortfeasor shall not be solidarily liable with any other person for damages attributable to the fault of such other person, including the person suffering injury, death, or loss, regardless of such other person's insolvency, ability to pay, degree of fault, or immunity by statute or otherwise.

[5] I note here my agreement with the quoted statements from Touchard that a judgment creditor is not precluded from 100% recovery from tortfeasors who commit "an intentional or wilful act" under paragraph A of LSA-C.C. art. 2324. Although couched in terms of solidary liability of a person who conspires with another to commit an intentional act, the underlying essence and policy of the code article is that a person who commits an intentional act is liable for the full extent of damage caused by the act. Thus, the rapist in this case, if named as a defendant, would be solidarily liable for 100% of plaintiff's damages, although the landlord's solidary liability would be limited to 50%, assuming less than 50% fault on the part of the landlord. See, in addition to Touchard, Johnston v. Fontana, 610 So.2d 1119 (La.App. 2d Cir.1992), writ denied 618 So.2d 407 (La.1993), and Thomas C. Galligan, Jr., Article 2324. The Discombobulating State of Solidarity In Post Tort Reform Louisiana, 54 La.L.Rev. 551, 560-562 (1994).

[6] I realize that there will be limited instances in which the application of comparative fault principles to an intentional tort case will be unwarranted, particularly when comparing plaintiff fault with defendant fault, and note merely as an example conversion cases involving defendants engaging in self-help measures. Broussard v. Lovelace, 610 So.2d 159 (La.App. 3d Cir.1992), writ denied, 615 So.2d 343 (La.1993) (declining to apply comparative fault to conversion case); Hebert v. First Guaranty Bank, 493 So.2d 150 (La.App. 1st Cir.1986) (same). Nonetheless, I view these cases as limited exceptions which can perhaps be resolved on other grounds such as by finding, under duty-risk analysis, a duty lacking. R. Hallack, Comment, Louisiana's Comparative Fault Doctrine and the Mitigation of Damages in the Intentional Tort of Assault and Battery, 15 So.U.L.Rev. 111 (1988).

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[1] The decision Bell v. Jet Wheel Blast, 462 So.2d 166 (La.1985) did not create an exception to the application of comparative fault. Although the date of the accident does not appear in the Bell opinion, the accident in Bell occurred before the effective date of comparative fault, and the plaintiff would have recovered under pre-comparative fault law anyway. Therefore, any pronouncements on comparative fault in Bell were dicta. Moreover, any decision to apply exceptions will more likely come by a refusal to compare victim negligence in a particularly harsh situation (as in Bell), rather than in a comparison of multiple tortfeasor fault (as in the present case).

[2] Prior to the 1987 amendment to La.Civ.Code art. 2324, the fault of each tortfeasor could have been allocated (for contribution purposes), and the blameless tort victim could have collected one hundred percent from either. Under present law, recovery against a solidary obligor who is less than fifty percent at fault is reduced to fifty percent of the tort victim's damages. Touchard v. Williams, 617 So.2d 885 (La.1993).

[3] Comparison of fault between tortfeasors can be difficult in many circumstances, as when the fault of one occurred at a time remote from another's more proximate fault that immediately precipitated the damages. Recognizing that the fault of both tortfeasors (the proximate and the remote) should be considered by the factfinder caused Louisiana to replace proximate cause analysis with duty-risk analysis. Dixie Drive It Yourself System v. American Beverage Co., 242 La. 471, 137 So.2d 298 (1962), Pierre v. Allstate Ins. Co., 257 La. 471, 242 So.2d 821 (1970). Similarly in the present case, the fault of two tortfeasors combined to produce the victim's single injury. Indeed, the apartment manager's fault was more remote and less causative in effect, but must be recognized in order to complete the fault picture. Once this concept of dual causative fault is acknowledged, the legislative pronouncement on solidarity takes over and requires reduction of the victim's recovery.

[4] One cannot overemphasize the fact that this case involves a comparison of fault between tortfeasors and not a comparison of a tortfeasor's fault with a tort victim's contributory negligence. There arguably may be much more justification for making an exception to application of comparative fault by disregarding the victim's contributory negligence under extreme circumstances than by disregarding the fault of one of several tortfeasors.

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[1] Eight years before, in 1979, LSA-C.C. Arts. 2323 and 2324 were amended to provide for "comparative fault" as it has come to be called. From 1979 to 1987, LSA-C.C. Art. 2324 provided that all tortfeasors were solidarily liable, but that the debt which they owed was reducible by the proportion of the plaintiff's comparative negligence under LSA-C.C. Art. 2323. In 1984, LSA-C.C. Art. 1804 was amended to its current form, see Text infra, and Comment (b) notes that the designation that each tortfeasor's virile share be according to the "proportion of his fault" was intended to make the solidarity articles "consistent with the idea of comparative negligence." In other words, it was the amendment to LSA-C.C. Art. 1804 which created the need for the trier-of-fact to assess a proportion of blame to various defendants, and that change was implemented to create a similar scheme to the comparison of fault between plaintiff and defendant mandated by LSA-C.C. Art. 2323. Thus, the practice of assessing proportionate blame to defendants was influenced, but not caused, by the Legislature's adoption of comparative fault. This is significant, because what had formerly been an inter-defendant matter directly affected the recovery of a plaintiff after the 1987 amendment to LSA-C.C. Art. 2324, discussed infra.

[2] One of these cases, which treats divisions within the general aegis of "fault," will be discussed infra.

[3] The first paragraph of LSA-C.C. Art. 1804 contains, as noted supra, the phrase "Among solidary obligors," limiting the effect of that paragraph in the delictual context to solidarily liable tortfeasors. Contrast the second and third paragraphs of LSA-C.C. Art. 1804, which do not contain this limitation. Furthermore, I note that the deletion of the phrase "with regard to him" found in old C.C. Art. 2106 from the revised article LSA-C.C. Art. 1804 allows the third paragraph of this article to be read as effective against third parties, and not just among the various sureties of the principal obligor. Even were this not the case however, the allocation of fault among delictual obligors under LSA-C.C. Art. 1804, including its third paragraph, is tacitly reflected in the system of tort recovery established by LSA-C.C. Art. 2324, given the latter article's contemplated requirement of delictual fault being quantified and allocated among solidarily liable defendants in accordance with the "comparative fault" system. See Note 1, supra.

[4] The important thing therefore is to draw up the table of legal obligations protected by article 1382 [the French equivalent to LSA-C.C. Art. 2315], but that task is quite delicate; it does not suffice to say that it is forbidden "to harm another;" it is necessary also to indicate the forms under which such obligation is encountered. We can recognize a quadruple object:--

(1) To abstain from any violence towards things or persons;

(2) To abstain from any fraud, that is to say from any act which deceives another;

(3) To abstain from acts which require a certain force or a certain ability, which one does not possess in the required degree;

(4) To exercise a sufficient surveillance over dangerous things which one possesses or over the persons of whom one has the guardianship (children, insane persons, etc.).

The first two obligations are absolute: violence and fraud are reprobated in themselves, and those who employ them are necessarily at fault and responsible. These are the ones which correspond to the class of delits properly so-called or intentional damage "dolo." In the last two categories, the person responsible has not acted with "dolo," but only with "culpa; " his conduct is entitled to a certain evaluation because the fault committed is susceptible of degrees.

Planiol, supra, § 865.

[5] This argument is even more salient if Appalachian Corp. v. Brooklyn Cooperage Co., 151 La. 41, 91 So. 539 (1922), which was cited by Dusenbery as precedent for tort indemnity, is examined. Although Dusenbery suggests that the basis of the tort indemnitee's liability in Appalachian Corp. was some form of strict liability, the case reveals that both tortfeasors were found liable under a negligence theory (due perhaps to the state of the law regarding strict liability in 1922). If tort indemnity can apply in a comparison of the actions of two dissimilarly negligent tortfeasors, it seems a fortiori that the same general approach should apply to the allocation of fault between an intentional and a negligent tortfeasor.

[6] If under an application of "comparative fault" a plaintiff is found to be at fault, the resulting diminution in the obligation owed by the intentional tortfeasor is of course effective for the negligent tortfeasor as well. This is because under the fundamental principles of both solidarity and suretyship, each owes the same obligation. Thus, were a plaintiff found to be 10% at fault in relation to an intentional tortfeasor, that plaintiff could recover 90% of his or her recoverable damages from a negligent defendant.

[7] This system actually provides for enhanced recoveries by plaintiffs (since the only application of comparative fault would be between intentional tortfeasors and negligent plaintiffs, and the policy reasons noted by the Court in its majority opinion limiting the application of comparative fault would certainly apply in this context). However, it also reserves to negligent tortfeasors greater rights of "contribution" against the intentional tortfeasor since recovery is not to be based upon a "virile portion" related to an allocated proportion of fault, but rather to the subrogation and/or reimbursement principles of the suretyship articles. In other words, a negligent tortfeasor can recover 100% of what he paid to the plaintiff from an intentional tortfeasor, at least as a matter of legal principle.

[8] In cases where there is more than one intentional tortfeasor, LSA-C.C. Art. 2324(A) and its rule of 100% solidarity for intentional tortfeasors is applicable, with all negligent tortfeasors being sureties to that obligation.