[629] Darryl J. Tschirn, New Orleans, La., for plaintiff.

Lawrence J. Ernst, New Orleans, La., for defendants.

ALVIN B. RUBIN, District Judge:

A doctor who suffered a heart attack as a result of his exertions in saving the life of a mutilated diver invokes the Good Samaritan doctrine. The question presented is whether the doctrine extends to injuries sustained only indirectly from the perilous situation by a professional who was compensated for attempting the rescue.

Boone, a deep-sea diver, was injured in part due to the negligence of his employer, Taylor Diving, and in part due to his own contributory negligence. Boone was one of a group of divers who lived in a pressurized tube, six feet in diameter, for seven days during the course of which they made deep-sea dives. Living in the chamber made it unnecessary for them repeatedly to adjust to pressure and to be depressurized. They ate and slept, rested and relaxed, in the chamber between dives. The chamber was aboard a barge in the Gulf, off the Coast of Louisiana.

While living in the chamber, the divers used a toilet that flushed to the outside. When the toilet was flushed, the lower outside pressure sucked the atmosphere from the chamber. To prevent escape of pressure as well as danger to the divers while using the toilet, the toilet was controlled by two valves. When the diver was ready for the toilet to be flushed, he opened the inside valve, and, using a two-way speaker, asked personnel outside the chamber to open the outside valve and flush the toilet.

On this occasion, Boone left the inside valve open when using the toilet. While he was on the commode, the toilet was unaccountably flushed from the outside. Boone was partly eviscerated, a portion of his anus was ejected, and his condition presented the likelihood of his death if there were not immediate surgical treatment.

After a first aid man entered the chamber and diagnosed the problem, Taylor Diving telephoned and then sent a helicopter for Dr. Carter, a physician who was expert in medical diving problems. Dr. Carter was 46 years of age, and, although he had suffered from cardiac problems for a number of years, he continued to offer his services for offshore cases.

Before he left New Orleans, Dr. Carter decided surgical assistance might be needed, and he asked for the services of Dr. Tedesco, a surgeon. The two doctors were rushed by helicopter to the barge. They looked at Boone through a window, decided it was imperative he be operated on immediately, ordered surgical supplies, and, after being pressurized, entered the chamber.

[630] The operation was performed under great physical and mental strain. There were bunks on both sides of the cylinder, and a narrow passage between them. A sheet of plywood was placed between two lower bunks to serve as the operating table. The doctors could not work standing so they performed most of the necessary major abdominal surgery on their knees. No general anesthesia was available; the patient was provided merely with sedation. In a hospital the doctors would have been assisted by three trained attendants. They operated on Boone with the assistance only of the pharmacist's mate. The surgery required two hours of intense effort, and there is no question that, without it, Boone would have died.

After the operation, the doctors and Boone remained in the chamber to be depressurized. During this period, the doctors took turns attending Boone. As soon as it was safe to do so, they left the chamber. This was at 5:30 a. m., September 19, after the doctors had been in the pressurized tube for over 54 hours. They flew with Boone in a helicopter to a New Orleans hospital where an operation on Boone was again performed under normal conditions to be certain the emergency surgery was correct. Indeed it was, a remarkable surgical feat, and the task later attracted favorable medical comment.

After viewing the preliminaries of the hospital operation, Dr. Carter went to another room in the hospital to have a cup of coffee. Shortly after he arrived, he suffered a heart problem, which was later diagnosed as early congestive heart failure, atrio-fibrillation, and physical exhaustion.

Dr. Carter has engaged in the practice of medicine since 1954. Since 1960, he has represented himself as, and has been accepted as, a medical diving consultant. He and Dr. Tedesco expected to be compensated for their efforts on a fee basis set by themselves. Dr. Carter, who had previously been consulted by Taylor Diving, as well as by other companies in the diving business, had raised his fees to $100 per hour for medical services in his office; and $200 per hour for services outside his office, portal to portal, and an additional $100 per hour for all time spent in diving chambers. If it be of any consequence, there had been no express agreement to pay this rate though Taylor Diving did, after some dispute, pay it for both Dr. Carter's services and Dr. Tedesco's.

Dr. Carter had a pre-existing arteriosclerotic or incipient arteriosclerotic condition. It had been developing over a period of years and had been brought on or aggravated by long hours of work, obesity and excessive smoking. The attack he suffered in September 1969 was precipitated by the stress he had undergone in the three previous days, but it was merely an aggravation of the previous existing condition, not a new disease.

"Danger," a great jurist wrote, "invites rescue. The cry of distress is the summons to relief." Cardozo, J., in Wagner v. International Railway, 1921, 232 N.Y. 176, 133 N.E. 437. Since that day, over 40 years ago, the law has not doubted that "(t)he wrong that imperils life is a wrong to the imperiled victim; it is a wrong also to his rescuer." 232 N.Y. at 180, 133 N.E. at 437.

The person who by his tort imperils another has a duty to attempt to rescue the victim. He is responsible for the damages his tort causes. This embraces a duty to one who attempts to rescue the person who is endangered. When the rescuer acts from motives of altruism, and risks himself to save another, the risk of his harm falls on the tortfeasor who created the peril. Restatement, Second, Torts, § 449c; Annotation, 1945, Liability for Death of, or Injury to, One Seeking to Rescue Another, 158 A.L.R. 189; Annotation, 1922, Liability for Death of, or Injury to, One Seeking to Rescue Another, 19 A.L.R. 4; Annotation, 1955, Liability of One Negligently Causing Fire for Personal Injuries Sustained in Attempt to Control Fire or to Save Life or Property, 42 A. [631] L.R.2d 494; Harper and James, The Law of Torts, 1956, Vol. 2, § 18.2, p. 1020. Nor is the rule limited to spontaneous action; it also protects those who act after deliberation. See Prosser, The Law of Torts, 4th Ed. 1971, § 44, p. 277.

The jurisprudence has only touched the closely related problem of the directness or remoteness of the kind of injury suffered by the rescuer. Of course, when the condition negligently created is the direct cause of the injury to the rescuer, there can be no doubt of his right to recover. Without dwelling on the problem, most of the cases appear to assume that the Good Samaritan should be recompensed by the tortfeasor for any harm he suffers in the course of the rescue, even though it is unconnected with the tortfeasor's negligence. This case presents, then, the interrelated problems of the duty of care owed to those who may seek to succor the injured and the kind of harm for which damages may be awarded.

I. DUTY OF CARE

Here we deal with no altruist, no "act of charity," as Dr. Carter labels his conduct. Nor are we dealing with a fellow employee who leaps to the rescue, either for his normal pay or for motives of self-sacrifice. Here the rescuer was engaged to save. His injury thereafter resulted from no negligence on the part of the defendant, save the negligence that put Boone in his original danger.

There is little precedent for this occasion. Public servants, like firemen and police officers, we know, do not assume the risk of all injury in the course of their duties. Langlois v. Allied Chemical Corp., 1971, 258 La. 1067, 249 So.2d 133. Certainly where the original negligence continues and causes them injury in the act of rescue, they are entitled to damages. See Walker Hauling Co. v. Johnson, 1964, 110 Ga.App. 620, 139 S.E.2d 496; Cf. Nastasio v. Cinnamon, 1956, Mo., 295 S.W.2d 117. There may be other occasions where they are due a duty by those whose fault causes them to run a risk.

The warranty of seaworthiness does not extend to a fireman brought aboard a ship as a firewatcher. McDaniel v. M/S Lisholt, 2 Cir. 1958, 257 F.2d 538. "There can be no duty to furnish a seaworthy ship to a fireman who was on the vessel knowing it to be unseaworthy, and was on board because of its unseaworthiness." 257 F.2d at 540. The concept of that opinion is relevant: those who are paid to remedy defects are not indemnified against all injury by him who created the need for their services. Like reasoning would apply the same rule to those paid to render succor.

II. ASSUMPTION OF RISK

The physical strain of performing an operation in the diving chamber was greater than the physical exertion of operating in a hospital, and there must have been greater emotional stress. But neither of these differed in kind from the risk Dr. Carter's already damaged heart would have incurred from an assumption of similar responsibility in a hospital. Presumably his fee was set with some regard for the added inconvenience and exertion that the occasion demanded.

The peril to Dr. Carter's health was well known to him when he accepted employment: he knew his own physical weakness. He had repeatedly consulted other physicians and had treated himself for cardiac problems. He knew or should have known far better than Taylor Diving that the travel to and from offshore assignments, the long hours involved, and the tension inevitable in the circumstances would put a strain on his weak heart. This indicates that, in the literal sense, Dr. Carter knew, and assumed, the risk of what happened to him in the course of his professional efforts. See Prosser, The Law of Torts, 4th Ed. 1971, § 68, p. 447. By the classic test there stated, Dr. Carter knew and understood the risks he incurred and he [632] made an entirely free and voluntary choice to confront them.

Nor may we ignore the question whether the duty Taylor Diving owed Dr. Carter included protection against the consequences that he actually suffered. This issue, commonly referred to as "causation," really involves the question whether the defendant should be legally responsible for events occasioned at least in part by his conduct. Prosser, op. cit. supra, at 244. Restatement, Second, Torts § 431. This is "essentially a question of whether the policy of the law will extend the responsibility for the conduct to the consequences which have in fact occurred." Prosser, op. cit. supra, at 244.

It would appear evident that a policeman who suffers a heart attack while chasing a suspect may not hold responsible a property owner whose negligence created the opportunity for crime. A fire fighter who is engaged to extinguish a well put aflame by a negligent act would not appear ipso facto to have a cause of action arising from the negligence that lit the flame. Cf. Corey v. Hiberly, 7 Cir. 1965, 346 F.2d 368, holding that the widow of a voluntary fire fighter who suffered a coronary occlusion while attempting to extinguish a small fire at a road side could not recover because the danger was too remote and was not proximately caused by the fire; and see Williams v. Chick, 8 Cir. 1967, 373 F.2d 330, where the court held it was improper to enter summary judgment because there were factual questions involved when a volunteer rescuer suffered a heart attack after physical exertion in effecting a rescue.

These may be mere a priori judgments. But it is unnecessary to multiply examples. The real question is whether the negligent act created the kind of peril that injured the rescuer and whether the injured rescuer suffered the kind of harm that the law considers to be the responsibility of the original actor.

In this case, there was no duty to Dr. Carter, as a professional surgeon, engaged at a special rate, to avoid creating a risk of hard work under great emotion. Nor can it be said that the negligence was, as to him, a proximate cause of his injury in any usual sense. Indeed, as has been indicated, he was well paid to undertake the exact sort of risk that caused his injury.

There being no duty, it is needless to deal in terms of "causation." But, as in Theodories v. Hercules Navigation Co., Inc., 5 Cir. 1971, 448 F.2d 701, Dr. Carter's injury resulted "not directly from the unseaworthy condition (or negligence) itself, but from a succession of events only tenuously related, in a causal sense, to the original condition." 448 F.2d at 704. The court there characterized an attempt to impose liability for the rescuer's "unforeseen cardiac failure after only slight exertion" as a "sort of for-want-of-the-nail-the-shoe-was-lost `proximate cause'." 448 F.2d at 704, n. 8.

It may be said that a humanitarian spirit would reach out to recompense the injured doctor. But dollars paid as balm for his hurt may not properly be extracted by the force of the law from the employer who did no negligent act toward him and who engaged him to save Boone without dickering on fee in advance. It may be said that the result of this case deters physicians from undertaking to render treatment, but it is evident that a contrary conclusion might well cause the employers of injured persons to hesitate before paying high prices to "Professional Samaritans" assuming known risks. It is the injured worker whose succor is society's first concern, and the result here will encourage providing aid to him without regard to the expense of experts' fees.

For these reasons, judgment will be rendered for the defendant.

Page 292

Page 293

        [232 Cal.App.3d 1146] [3 Cal.App.4th 1026] Steven H. Wilhelm, San Diego, for plaintiff and appellant.

        Daley & Heft, Sarah H. Mason and Dennis W. Daley, Solana Beach, for defendant and respondent.

        TODD, Acting Presiding Justice.

        Kendra Knight appeals a summary judgment granted in favor of Michael Jewett in her lawsuit against Jewett for negligence and assault and battery stemming from a touch football game in which she was injured. Knight contends (1) it was error to apply the doctrine of assumption of risk to defeat the negligence cause of action, (2) it was error to apply the doctrine of assumption of risk to defeat the assault and battery cause of action and (3) there were triable issues of fact that should have precluded the granting of summary judgment.

        On January 25, 1987, Knight and several other individuals, including Jewett, gathered at the Vista home of Ed McDaniels to observe the Super Bowl football game. Knight and Jewett were among those who decided to play a game of co-ed touch football during half-time using a "peewee" football often used by children. Apparently, no explicit rules were written down or discussed before the game, other than the requirement that to stop advancement of the player with the ball it was necessary to touch that player above the waist with two hands. Knight and Jewett were on different teams.

        Previously, Knight had played touch football and frequently watched football on television. Knight voluntarily participated in the Super Bowl half-time game. It was her understanding that this game would not involve forceful pushing, hard hitting or hard shoving during the game. She had never observed anyone being injured in a touch football game before this incident.

        About five to ten minutes after the game started, Jewett ran into Knight during a play and afterward Knight asked Jewett not to play so rough. Otherwise, she told him, she would stop playing.

        [232 Cal.App.3d 1147] [3 Cal.App.4th 1027] On the next play, Knight suffered her injuries, when she was knocked down by Jewett and he stepped on the little finger of her right hand. Kendra had three surgeries on the finger, but they proved unsuccessful. The finger was amputated during a fourth surgery.

        According to Jewett, he had jumped up to intercept a pass and as he came down he knocked Knight over. When he landed, he stepped back and onto Knight's hand.

        According to Knight's version, her teammate, Andrea Starr had caught the ball and was proceeding up the field. Knight was headed in the same direction, when Jewett,

Page 294

        Jewett did not intend to step on Knight's hand and did not intend to hurt her.

        Knight contends it was error to apply the doctrine of assumption of risk to the facts of this case and negate her cause of action for negligence. We disagree.

        It is fundamental that a plaintiff in a negligence action can prevail only if he or she establishes the defendant owed the plaintiff a duty to use reasonable care and breached that duty. (6 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, § 732, p. 60.) The doctrine of assumption of the risk is "another way of stating that the defendant's duty of care has been reduced in proportion to the hazards attendant to the event. Where no duty of care is owed with respect to a particular mishap, there can be no breach; consequently, as a matter of law, a personal injury plaintiff who has voluntarily--and reasonably--assumed the risk cannot prevail." (Ordway v. Superior Court (1988) 198 Cal.App.3d 98, 104, 243 Cal.Rptr. 536.)

        We begin with a short history of California cases which have explored the defense of assumption of the risk after our Supreme Court handed down its decision in Li v. Yellow Cab Co. (1975) 13 Cal.3d 804, 808, 119 Cal.Rptr. [232 Cal.App.3d 1148] [3 Cal.App.4th 1028] 858, 532 P.2d 1226, abolishing the defense of contributory negligence and replacing it with a system of comparative negligence. Li raised considerable doubt as to the survival of assumption of the risk as a tort defense, except for express contractual assumption. (See, e.g., Schwartz, Comparative Negligence (2d ed. 1986) § 9.1, p. 156.)

        The first reported post-Li case in this area was Segoviano v. Housing Authority (1983) 143 Cal.App.3d 162, 191 Cal.Rptr. 578, in which the plaintiff was injured during a flag football game. In Segoviano, the Fifth Appellate District concluded that reasonable implied assumption of the risk had been abolished by Li:

"We interpret Li to mean that the separate defense of implied assumption of the risk is abolished under the comparative negligence law. It is only when the plaintiff expressly agrees to assume the risk that the defendant is relieved of a duty of care toward the plaintiff, thus barring any recovery. In our view, this is the only rational meaning to be given to the principles articulated in Li. The Supreme Court recognized that implied assumption of risk if unreasonable could be fairly handled under the comparative negligence concept, i.e., the plaintiff's recovery would be reduced to the extent his own lack of reasonable care contributed to his injury. If the plaintiff's conduct was entirely reasonable under all of the circumstances, we find no basis in reason or equity for barring his recovery." (Id. at pp. 169-170, 191 Cal.Rptr. 578.)

        The position of the court in Segoviano, supra, 143 Cal.App.3d 162, 191 Cal.Rptr. 578, has found little support in subsequent cases. ¹ The Third Division of our appellate district issued the first of these cases, Rudnick v. Golden West Broadcasters (1984) 156 Cal.App.3d 793, 800, footnote 4, 202 Cal.Rptr. 900, in which the lead opinion, in dictum, affirmed the continued viability of an assumption of the risk defense and questioned the reasoning of Segoviano. Rudnick involved injury to a spectator at a baseball game at Anaheim Stadium, and one of the interposed defenses was assumption of risk. The appellate court did not reach this issue because it concluded summary judgment had been improvidently

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        In Nelson v. Hall (1985) 165 Cal.App.3d 709, 211 Cal.Rptr. 668, a case involving injuries to a veterinary assistant, the Third Appellate District held the defense of assumption of the risk was applicable even though the claim was based upon strict liability under the dog-bite statute. The Nelson court said a veterinarian or his assistant is aware dogs may bite during treatment and "has assumed this risk as part of his or her occupation." (Id. at p. 715, 211 Cal.Rptr. 668.)

        [232 Cal.App.3d 1149] [3 Cal.App.4th 1029] In Neinstein v. Los Angeles Dodgers, Inc. (1986) 185 Cal.App.3d 176, 183, 229 Cal.Rptr. 612, a Second Appellate District case, the court said Li, supra, 13 Cal.3d 804, 119 Cal.Rptr. 858, 532 P.2d 1226, did not abrogate the doctrine of implied reasonable assumption of the risk. In Neinstein, the plaintiff had occupied a seat in an unscreened area of Dodger Stadium and was struck by a batted ball. The appellate court upheld the granting of summary judgment in favor of the Dodgers, noting the plaintiff consented to take her own chances that she would not be injured when she voluntarily elected to sit in the unscreened area and "was sufficiently warned of the risk by common knowledge of the nature of the sport...." (Neinstein, supra, 185 Cal.App.3d at p. 184, 229 Cal.Rptr. 612.)

        The definitive statement of the law of "reasonable implied assumption of the risk" is contained in Ordway v. Superior Court, supra, 198 Cal.App.3d 98, 243 Cal.Rptr. 536, another decision by the Third Division of this appellate district. Ordway involved injuries suffered by a professional jockey during a race when other jockeys "crossed over" without sufficient clearance. The Ordway court, in a comprehensive review of the subject, compared (a) express assumption of the risk, (b) unreasonable implied assumption of the risk, and (c) reasonable assumption of the risk, and concluded Li, supra, 13 Cal.3d 804, 119 Cal.Rptr. 858, 532 P.2d 1226, had merged only unreasonable implied assumption of the risk into the comparative negligence doctrine. Rejecting Segoviano, supra, 143 Cal.App.3d 162, 191 Cal.Rptr. 578, the Ordway court held that reasonable implied assumption of risk remained, after Li, a complete defense. (Ordway v. Superior Court, supra, 198 Cal.App.3d at pp. 102-105, 243 Cal.Rptr. 536.) ²

        We join the clear California trend in adopting the Ordway analysis and conclusion that--notwithstanding the adoption of comparative negligence--reasonable implied assumption of risk remains a viable defense. We conclude the doctrine of reasonable implied assumption of risk is a logical allocation of risk among those who have impliedly agreed in advance. "Reasonable implied assumption of risk is the inferred agreement to relieve a potential defendant of a duty of care based on the potential plaintiff's reasonable conduct in encountering a known danger." (Ordway, supra, 198 Cal.App.3d at p. 102, 243 Cal.Rptr. 536, original italics.) In other words, it is the undertaking of a risk which a reasonable person would assume, with knowledge of all the circumstances. As Dean Prosser explained:

"[W]here the plaintiff voluntarily enters into some relation with the defendant, with knowledge that the defendant will not protect him against one or more future risks that may arise from the relation ... [h]e may then be regarded as tacitly or impliedly consenting to the negligence, and agreeing to take his own chances." (Prosser & Keeton, op. cit. supra, § 68, p. 481, emphasis in original.)

        [232 Cal.App.3d 1150] [3 Cal.App.4th 1030] The question remains whether application of the defense was proper here. Here, Knight was familiar with football and voluntarily joined a group of men and women to play a game of touch football. It is axiomatic that those who engage in or follow competitive sports know physical contact causing injuries is routinely caused by both the acts of adversaries and of

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"If the defendant's actions, even those which might cause incidental physical damage in some sports, are within the ordinary expectations of the participants--such as blocking in football, checking in hockey, knock-out punches in boxing, and aggressive riding in horse racing--no cause of action can succeed based on a resulting injury." (Ordway, supra, 198 Cal.App.3d at pp. 111-112, 243 Cal.Rptr. 536, fn. omitted.)

        When she voluntarily played in the game, Knight assumed a risk of physical contacts within the ordinary parameters of a game of touch football--and the dangers inherent in such contacts. Thus, her assumption of the risk of contact injury bars her negligence cause of action.

        Knight's argument that implied reasonable assumption of risk was inapplicable because Jewett's conduct was outside the reasonable expectations of the participants is not persuasive. For one thing, the failure to set down explicit rules before the game started indicates the participants did not attempt to delineate the level of permissible force or aggressiveness or roughness for the game. Moreover, in the context of sports, it is always unrealistic to expect a narrow range of conduct among the participants. Knight makes much of the fact that on a previous play, she asked Jewett to play less roughly. However, we find the fact that Knight continued to play after she learned that Jewett was playing at a level of aggressiveness and roughness that was not to her liking tends to show that she indeed had voluntarily and knowingly assumed the risks of this particular touch football game when she was injured. ³

[232 Cal.App.3d 1151]

[3 Cal.App.4th 1031]

II

        Knight contends that even if we find the doctrine of implied reasonable assumption of the risk to be applicable here, summary judgment was inappropriate because there were questions of fact to be determined. The contention is without merit.

        Code of Civil Procedure section 437c, subdivision (c), provides, in part, that "the motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (Italics added.) The California Supreme Court has stated that:

"The matter to be determined by the trial court in considering such a motion is whether the defendant (or the plaintiff) has presented any facts which give rise to a triable issue.... Summary judgment is proper only if the affidavits in support of the moving party would be sufficient to sustain a judgment in his favor and his opponent does not by affidavit show such facts as may be deemed by the trial judge hearing the motion sufficient to present a triable issue." (Stationers Corp. v. Dun & Bradstreet, Inc. (1965) 62 Cal.2d 412, 417, 42 Cal.Rptr. 449, 398 P.2d 785.)

        In reviewing an order granting summary judgment, "the appellate court has the duty to determine whether a triable issue of material fact exists." (Estate of Pitzer (1984) 155 Cal.App.3d 979, 986, 202 Cal.Rptr. 855.)

Page 297

        Here, the parties dispute how the injury occurred: Jewett claims he collided with Knight as he was trying to intercept a pass, while Knight claims Jewett ran into her from behind as he was pursuing the ball carrier. While this is a factual dispute, it is immaterial to the issue of assumption of risk. Knight also posits there is a factual dispute about whether she had knowledge of the risk involved in this game because she did not appreciate the magnitude of the danger presented by Jewett's over-exuberant or aggressive level of play. This argument begs the question. The issue is whether the defendant's conduct is within the ordinary expectations of the participants in the particular sport. (Ordway, supra, 198 Cal.App.3d at p. 111, 243 Cal.Rptr. 536.) It cannot be disputed that Knight knew a touch football game entails physical contact. As discussed in part I of this opinion, Knight cannot claim Jewett's aggressive play transformed this game into something more than it was, namely a game of touch football, and negated her assumption of the risk that she might incur incidental physical injury when she voluntarily agreed to participate.

        "[T]he purpose of a summary judgment 'is to expedite litigation by avoiding needless trials'...." (Burton v. Security Pacific Nat. Bank[232 Cal.App.3d 1152] (1988) 197 Cal.App.3d 972, 977, 243 Cal.Rptr. 277.) Therefore, "[i]f there are no triable issues, summary judgment is appropriate." (Ibid.) Here, we conclude [3 Cal.App.4th 1032] there are no material issues of fact on the negligence cause of action. The defense of implied reasonable assumption of the risk acts as a legal bar to this cause of action. A summary judgment motion should be granted if the moving party is entitled to judgment as a matter of law. (Isaacs v. Huntington Memorial Hospital (1985) 38 Cal.3d 112, 134, 211 Cal.Rptr. 356, 695 P.2d 653.) ⁴

        Knight contends her cause of action for assault and battery is viable and she should be allowed to proceed to trial on it.

        Somehow Knight infers from the trial court's summary judgment order that it applied the assumption of the risk doctrine to bar the assault and battery doctrine as well. We agree it would be error to apply assumption of the risk, a negligence doctrine, to assault and battery, which is an intentional tort. (Ordway, supra, 198 Cal.App.3d at p. 108, 243 Cal.Rptr. 536.) However, we find no evidence the trial court applied assumption of the risk to the assault and battery cause of action. Jewett's moving papers ⁵ below did not argue assumption of the risk as a defense to the assault and battery cause of action. Rather, with respect to this cause of action, Jewett argued it must fail because Knight consented to the physical contact. ⁶

        [232 Cal.App.3d 1153]

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        Inasmuch as this case reaches us on appeal from a summary judgment in favor of Jewett, it is only necessary for us to determine whether there is any possibility Knight may be able to establish her case. (Neinstein, supra, 185 Cal.App.3d at p. 179, 229 Cal.Rptr. 612.)

        A requisite element of assault and battery is intent. (Prosser, supra, § 9, p. 41; see also BAJI No. 7.51.) Here, however, there is no evidence that Jewett intended to injure Knight or commit a battery on her. Moreover, the record affirmatively shows Knight does not believe Jewett had the intent to step on her hand or injure her. ⁷ Without the requisite intent, Knight cannot state a cause of action for assault and battery.

        A motion for summary judgment is addressed to the sound discretion of the trial court and, absent a clear showing of abuse, the judgment will not be disturbed on appeal. (Hoffman v. Citadel General Assurance, Ltd. (1987) 194 Cal.App.3d 1356, 1362, 240 Cal.Rptr. 253.) On this record, we discern no abuse of discretion; the granting of summary judgment was proper.

        Affirmed.

        BENKE and LIM, ^* JJ., concur.

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

1 The position of the Segoviano court is also contrary to that of Restatement of the Law, Torts 2d (1965) section 496 C, at pages 432-436, and a number of non-California authorities (see Prosser & Keaton, Torts (5th ed. 1984) § 68, pp. 497-498).

2 Subsequent published cases have adopted this position. See e.g., Von Beltz v. Stuntman, Inc. (1989) 207 Cal.App.3d 1467, 255 Cal.Rptr. 755 (Second Appellate District); Nunez v. R'Bibo (1989) 211 Cal.App.3d 559, 260 Cal.Rptr. 1 (Second Appellate District).

3 We also find unpersuasive Knight's arguments that cases such as Ordway, supra, 198 Cal.App.3d 98, 243 Cal.Rptr. 536, involving professional sports should not apply here. Ordway makes it clear the assumption of risk doctrine applies to amateur athletics as well: "[T]he individual who knowingly and voluntarily assumes a risk, whether for recreational enjoyment, economic reward, or some similar purpose, is deemed to have agreed to reduce the defendant's duty of care." (Id. at p. 104, 243 Cal.Rptr. 536.)

4 The question of duty is decided by the court, not the jury. (6 Witkin, Summary of Cal.Law (9th ed. 1988) Torts, § 748, p. 83.) In Ballard v. Uribe (1986) 41 Cal.3d 564, 572-573, footnote 6, 224 Cal.Rptr. 664, 715 P.2d 624, our Supreme Court observed: " '[D]uty' is not an immutable fact of nature ' "but only an expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection." ' [Citations.] ... [A] court's task--in determining 'duty'--is not to decide whether a particular plaintiff's injury was reasonably foreseeable in light of a particular defendant's conduct, but rather to evaluate more generally whether the category of negligent conduct at issue is sufficiently likely to result in the kind of harm experienced that liability may appropriately be imposed on the negligent party." (Emphasis in original.)

5 We also note that in his answer to the complaint, Jewett pled consent as an affirmative defense to the assault and battery cause of action.

6 Assuming arguendo that the trial court did erroneously apply assumption of the risk to the assault and battery cause of action, it would not necessarily be reversible error. "Where a motion for summary judgment has been granted and there is a sufficient ground to support the judgment entered thereon, it will be upheld regardless of the grounds on which the trial court based its decision." (9 Witkin, Cal. Procedure (3d ed. 1985) Appeal, § 261(d), p. 268; Snider v. Snider (1962) 200 Cal.App.2d 741, 746, 19 Cal.Rptr. 709; Constance B. v. State of California (1986) 178 Cal.App.3d 200, 211, 223 Cal.Rptr. 645.) " 'The fact that the action of the [trial] court may have been based upon an erroneous theory of the case, or upon an improper or unsound course of reasoning, cannot determine the question of its propriety.... [A] ruling or decision, itself correct in law, will not be disturbed on appeal merely because given for a wrong reason.' " (Smith v. Walter E. Heller & Co. (1978) 82 Cal.App.3d 259, 267, 147 Cal.Rptr. 1.) Thus, "[i]f the decision of the lower court is right, the judgment or order will be affirmed regardless of the correctness of the grounds upon which the court reached its conclusion." (9 Witkin, Cal. Procedure (3d ed. 1985) Appeal, § 259, p. 266).

7 The deposition of Kendra Knight was taken on October 19, 1988, and offered in support of the motion for summary judgment. Ms. Knight testified as follows:

"Q. Do you believe that Mr. Jewett was trying to step on your hand? Do you have any reason to believe he had any intention to hurt you?

"A. No."

* Assigned by the Chairperson of the Judicial Council.

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        [56 Cal.App.4th 113] Marjorie A. Seapy, Claremont, for Plaintiff and Appellant.

        Roberts and Morgan, and Arthur K. Cunningham, Riverside, for Defendants and Respondents.

[56 Cal.App.4th 114]

OPINION

        McDANIEL, Associate Justice. ^*

        John Lowe (Plaintiff) was seriously injured when struck on the left side of his face by a foul ball while attending a professional baseball

Page 106

        The Quakes, at their home games, feature a mascot who goes by the name of "Tremor." He is a caricature of a dinosaur, standing seven feet tall with a tail which protrudes out from the costume. Tremor was performing his antics in the stands just along the left field foul line. Tremor was behind plaintiff and had been touching him with his (Tremor's) tail. Plaintiff was thereby distracted and turned toward Tremor. In the next moment, just as plaintiff returned his attention to the playing field, he was struck by a foul ball before he could react to it.

        Very serious injuries resulted from the impact. As a result, the underlying action was commenced against the California League of Professional Baseball and Valley Baseball Club, Inc., which does business as the Quakes (defendants). The case was resolved in the trial court by summary judgment entered in favor of defendants.

        Defendants were able to persuade the trial court, under the doctrine of primary assumption of the risk (Knight v. Jewett (1992) 3 Cal.4th 296, 11 Cal.Rptr.2d 2, 834 P.2d 696), that defendants owed no duty to plaintiff, as a spectator, to protect him from foul balls. Such rationalization was faulty. Under Knight, defendants had a duty not to increase the inherent risks to which spectators at professional baseball games are regularly exposed and which they assume. As a result, a triable issue of fact remained, namely whether the Quakes' mascot cavorting in the stands and distracting plaintiff's attention, while the game was in progress, constituted a breach of that duty, i.e., constituted negligence in the form of increasing the inherent risk to plaintiff of being struck by a foul ball.

        Thus, the trial court improperly granted the motion for summary judgment and it must be reversed accordingly.

SYNOPSIS OF TRIAL COURT PROCEEDINGS

        In the action, filed after his injury, plaintiff's complaint was styled in a single count, a refreshing example of clear and concise pleading. The key [56 Cal.App.4th 115] charging allegations were contained in two paragraphs: "5. On said date and some time after the stated time and after the seventh inning, 'Tremor' the Quake's mascot, came up into the stadium in the area where plaintiff and his group were seated. Tremor was accompanied by an usher as he performed antics and entertained the crowd. Tremor is a person who wears a dinosaur costume with a long protruding tail. As John Lowe sat in his assigned seat, he was facing forward and looking toward the playing field when suddenly, and without warning or his consent, his right shoulder was touched by the tail of Tremor's costume. As he turned to his right to see who, or what, was touching him, baseball play had resumed and a batted ball, believed to be a foul ball, hit the plaintiff on the left side of his face breaking multiple facial bones. [p] 6. The Left Terrace Section, where the plaintiff was seated with his group, is located northwesterly of the left field foul ball territory, and in the direct line of foul balls passing west of the third base line. Tremor's antics and interference, while the baseball game was in play, prevented the plaintiff from being able to protect himself from any batted ball and foreseeably increased the risks to John Lowe over and above those inherent in the sport."

        After an unsuccessful demurrer, defendants noticed a motion for summary judgment. ¹

        The notice contained no recitation of the grounds for the motion. However, as required by statute, defendants filed a separate statement of undisputed facts. Without the accompanying tabulation here of evidence for such statement of facts, they included: "1. On July 26, 1994, at approximately 7:05 p.m., plaintiff was in attendance at a baseball game between the Rancho Cucamonga Quakes and the San Bernardino Spirit at the Epicenter baseball facility and was seated in an area of

Page 107

        [56 Cal.App.4th 116] As evidentiary support for their motion, defendants filed the declaration of Joseph M. Gagliardi, president of the California League of Professional Baseball. Such declaration pointed out that seven of the ten teams in the California League have mascots. Among other things, the Gagliardi declaration stated, "[m]ost of the mascots have taken on a specific caricature such as Disney/Warner Brothers animations for each team. They are personable in their duties and responsibilities and try to make as much contact with the public to keep fan interest active. Fans have become accustomed to having the mascots entertain them. The mascots perform their routines nightly on the playing field and in the public seating area. [p] While the clubs encourage the mascots' interaction, especially with the young children so that they are comfortable at a ballpark game situation, the mascots' activities include keeping the fans informed, generating fan participation in promotions/advertisements, and helping with crowd control. Greeting the customer is an essential part of the ball club's public relations efforts." Defendants also filed extended excerpts of plaintiff's deposition, supported by the authenticating declaration of James L. Price, counsel for plaintiff. These deposition excerpts provide an insight into how plaintiff was injured:

        "Q ... Where was the mascot at the time that the foul ball was hit?

        "A Directly behind me.

. . . . .

        "Q How long had the mascot been directly behind you at the time you were hit?

        "A I would say probably two minutes.

        "Q Was the mascot standing in the same place for that long?

        "A He was moving around back and forth. But whatever he was doing, he was doing it directly behind my seat.

        "Q So he was at the row or in the row behind your row?

        "A Our row of seats backed up to an aisle. He was standing in the aisle directly behind my seat.

. . . . .

        "Q And at the time that you were hit, the mascot was standing behind your row of seats in the aisle?

        [56 Cal.App.4th 117] "A Yes.

        "Q Did any part of the mascot's costume or person touch you before you were hit?

        "A Yes.

        "Q And what or how were you touched by this mascot?

        "A With his tail.

        "Q When did that occur in relationship to when you were hit by the ball?

        "A Well, during that approximate two-minute span he was doing his act. And I felt this bam, bam, bam, on the back of my head and shoulders, and I turned around to see what he was doing....

        "Q You felt something on your shoulders?

        "A Right.

        "Q How do you know it was the tail that tapped you on the shoulder?

        "A I turned around and looked.

. . . . .

        "Q And when you turned around and looked, what did you see?

        "A Well, I noticed that he was doing his antics to the crowd that was in the immediate area. And I saw that as he was turning his body, his tail was hitting me.

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        "Q Is that something that you actually saw or is that something that you assumed that the tail was hitting you?

        "A No, I saw the tail.

. . . . .

        [p] "I could see the stump of the tail hitting me....

. . . . .

        "Q All right. Were you annoyed by the mascot's tail tapping you on the shoulder?

        [56 Cal.App.4th 118] "A Initially, no, but as it continued, it was a little bothersome.

. . . . .

        "Q Where were you looking at the moment the ball was hit?

        "A I had just turned my head towards the field as the ball arrived.

        "Q And in terms of timing, was it almost instantaneous that you turned your head to the field and got hit?

        "A Yes.

. . . . .

        "Q Where were you looking immediately before you turned your head toward the field?

        "A Up at Tremor.

. . . . .

        "Q And at that time you were looking at Tremor immediately before turning your head back to the field and getting hit, was the reason that you were looking at Tremor that his tail had just tapped you on the shoulder again and you turned around and looked?

        "A Yes.

. . . . .

        "Q Were you eating or drinking anything at that time?

        "A I was not eating anything, there was no drink in my hand...."

        Plaintiff filed opposition to the motion for summary judgment. Such opposition included a response to defendants' undisputed statement of facts. As to defendants' statement No. 2, namely that "plaintiff was struck by a foul ball by the Quakes mascot, Tremor, who was entertaining in the area where plaintiff was seated," plaintiff disputed it. In direct response, plaintiff declared, "[p]laintiff's complaint is mis-stated [sic ]. Plaintiff was touched by the mascot, Tremor, without warning or consent, after baseball play resumed. Plaintiff was hit in the face by a foul ball as he turned to see who or what was touching him in the area of his right shoulder. As he turned his head [56 Cal.App.4th 119] back, a batted baseball hit the left side of the plaintiff's face breaking multiple facial bones. Paragraph five of plaintiff's complaint."

        As to defendants' statement No. 12, namely that "[t]he mascots have become an intrical [sic ] part of the game (per declaration of Joseph Gagliardi)," plaintiff disputed it. In direct response, plaintiff declared, "[t]he statement of Joe Gagliardi is a conclusion of a non-expert. It is also unintelligible since there is no such word as 'intrical' in Webster's Abriged [sic ] Dictionary. According to the Press Enterprise article page 2, EXHIBIT 'D[,'] mascots are needed to make money ... but are not essential to the baseball game. Admission number 4, Mr. Lowe's Request For Admissions, Set One, both defendants admit the game can be played without the mascot being there. [ ]EXHIBIT 'E[.'] A mascot is a marketing tool, not an integral part of the game of baseball. [ ]Deposition of Mark Monninger [Tremor] page 15, Lines 4 through 14. EXHIBIT 'F[.']"

        Otherwise, plaintiff objected to the declaration of Joseph Gagliardi, particularly that " '[t]he mascots have become an intrical [sic] part of the game.' " The objection noted further that "[t]his is hearsay without any applicable exception. In addition, non-experts, such as Mr. Gagliardi, are required to state facts rather than conclusions, Chatman v. Alameda County Flood Control [etc.] Dist[.] (1986) 183 Cal.App.3d 424, 228 Cal.Rptr. 257, 260. Plaintiff asks that Mr. Gagliardi's conclusions not be allowed into evidence. 2. Objection is made as to the [undated] article from the Riverside Press Enterprise newspaper. This is hearsay in that defendants are attempting to use this article to prove a matter here in dispute. This too is hearsay without any applicable exception. Plaintiff asks that the newspaper article not be allowed into evidence, or, in the alternative,

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        In the points and authorities filed in opposition to the motion, it was stated that "[f]or a period of at least two minutes, Tremor whacked the back of Mr. Lowe's head; back and shoulder with the tail portion of the Tremor costume. Finally, after being touched repeatedly in an annoying and unprivileged manner, Mr. Lowe turned around and saw that he was indeed being touched at that moment by the tail of the Tremor costume. As Mr. Lowe turned his face back toward the field, he was not aware that the game had again resumed and he was hit in the face by a line drive foul ball. The foul ball fractured numerous facial bones and caused dental injuries."

        Otherwise, the points and authorities observed, "[t]he California Supreme Court has stated (in the context of injuries to participants) that a defendant generally has no duty to eliminate, or protect a plaintiff from risks inherent [56 Cal.App.4th 120] to the sport itself, but has only a duty not to increase those risks, Knight [,] supra[,] [sic ] at pages 315 and 316[, 11 Cal.Rptr.2d 2, 834 P.2d 696]. A mascot is not integral to the sport of baseball, as is required by Knight [,] supra[,] [sic ]. The unsupported statement of Mr. Gagliardi is nothing more than a self-serving statement of a party defendant. What a mascot is, according to the deposition of Mark Monninger [Tremor] at page 14, lines 10 through 25, see EXHIBIT 'A' page number 1, is a marketing tool or simply entertainment. Mark Monninger states in his deposition that he was sick two days during the 1994 season. The baseball game went on without him there[,] page 15[,] lines 4 through 15. Defendants['] Admission number 4 is that the game can be played without Tremor being present. They further [a]dmit in Admission number 10 that Tremor could entertain without even going into the stands, EXHIBIT 'B[.'] If that safety practice had been in place during 1994, Mr. Lowe would not have been interfered with and injured by the foul ball."

        Further, within the parameters of the motion for summary judgment, plaintiff pointed out that "defendants have not addressed the issues raised in paragraph Six of Mr. Lowe's Complaint." That paragraph, earlier quoted, alleged, "6. The Left Terrace Section, where the plaintiff was seated with his group, is located northwesterly of the left field foul ball territory, and in the direct line of foul balls passing west of the third base line. Tremor's antics and interference, while the baseball game was in play, prevented the plaintiff from being able to protect himself from any batted ball and foreseeably increased the risks to John Lowe over and above those inherent in the sport."

        Defendants replied to plaintiff's opposition. Such reply contained no evidentiary filings; it consisted only of additional points and authorities. The thrust of the filings was to argue that mascots have long been an "integral" part of large publicly attended sporting events.

        With these filings before it, the trial court entertained oral argument of defendants' motion. At the outset, the court announced its tentative ruling. "The Defendant's [sic ] Motion for Summary Judgment is granted. There are no triable issues of material fact. Plaintiff's claim is barred by the doctrine of primary assumption of the risk. Where a spectator at a ball game has chosen not to sit in a screened area, that person assumes the risk of being hit by a foul ball. I think it falls within the case of Neinstein versus Los Angeles Dodgers, Inc. [(1986)], located at 185 Cal.App.3d 176[, 229 Cal.Rptr. 612]." Despite extended argument by counsel for plaintiff, the tentative order above noted became the final order of the court.

        A minute order was issued which indicated that the motion was granted, there being "no triable issue of material facts." Thereafter, a written judgment of dismissal, reflecting the minute order, was signed and entered. It [56 Cal.App.4th 121] recited that "[s]aid dismissal is premised upon the court's finding that there is no triable issue as to material fact, and that the moving parties are entitled to a judgment as a matter of law." This appeal followed.

        In pursuing his appeal, plaintiff, challenging to the propriety of the summary judgment, assigned as trial court error: (1) its

Page 110

        In responding to the appeal, defendants rely on a collection of cases which are readily distinguishable on their facts from those facts in this record and hence, because they are wholly inapposite, require no further discussion or analysis.

        We turn then to a consideration of the rationale relied on by plaintiff. In so doing, we are reminded that it is a summary judgment which is here for review. Such review is independent of that in the trial court but mirrors exactly the scenario followed there. (Chevron U.S.A., Inc. v. Superior Court (1992) 4 Cal.App.4th 544, 548, 5 Cal.Rptr.2d 674.) That scenario is guided by precise statutory prescriptions set forth in section 437c of the Code of Civil Procedure. Of key significance are subdivisions (o)(2) and (c).

        Subdivision (o)(2) provides in pertinent part, "[a] defendant ... has met his or her burden of showing that [the plaintiff's] cause of action has no merit if that party has shown ... that there is a complete defense to that cause of action. Once the defendant ... has met that burden, the burden shifts to the plaintiff ... to show that a triable issue of one or more material facts exists as to ... a defense thereto."

        Subdivision (c) provides that, "[t]he motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. In determining whether the papers show that there is no triable issue as to any material fact the court shall consider all of the evidence set forth in the papers, except that to which objections have been made and sustained by the court, and all inferences reasonably deducible from the evidence, except summary judgment shall not be granted by the court based on inferences reasonably deducible from the evidence, if contradicted by other inferences or evidence, which raise a triable issue as to any material fact." (Italics added.)

        [56 Cal.App.4th 122] Under this prescription, the first step is an analysis of the pleadings, i.e., the complaint and answer, including any affirmative defenses that may be contained therein. "The pleadings define the issues to be considered on a motion for summary judgment." (Ferrari v. Grand Canyon Dories (1995) 32 Cal.App.4th 248, 252, 38 Cal.Rptr.2d 65.)

        The next step in the analysis calls for an evaluation of the moving defendant's effort to meet the burden of showing that plaintiff's cause of action has no merit or that there is a complete defense to it. This showing can also rely on filings by plaintiff in opposition. (Villa v. McFerren (1995) 35 Cal.App.4th 733, 743, 750-751, 41 Cal.Rptr.2d 719.) In any event, once a prima facie showing is made and hence that the "burden" has been met, it shifts to the plaintiff to show that a triable issue of material fact exists within the framework of that fixed by the pleadings. (Code Civ. Proc., § 437c, subd. (o)(2).)

        Once the burden has shifted, it must next be determined if the filings in opposition succeeded in raising a triable issue of material fact. If they did, the motion must be denied; if they did not, the motion must be granted. (Code Civ. Proc., § 437c, subd. (c); Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 579, 37 Cal.Rptr.2d 653.)

        As earlier noted, our review precisely mirrors what occurs in the trial court, i.e., we make a de novo evaluation which, after it be shown that there are no disputed issues of material fact, requires a legal determination of the moving party's entitlement to judgment. (Jambazian v. Borden (1994) 25 Cal.App.4th 836, 844, 30 Cal.Rptr.2d 768.)

        In compliance with the foregoing, we turn to the first step in the system of analysis above fashioned, i.e., to define the issues framed by the pleadings. With regard to the record provided us, this step is somewhat difficult to perform. As earlier noted, there was no copy of defendants' answer contained in the clerk's transcript. However, we can extrapolate from other filings that all of the allegations describing the gravamen of plaintiff's grievance were denied. Such grievance

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        Otherwise, we assume that the answer introduced into the pleading mix the affirmative defense of the doctrine of primary assumption of the risk. We [56 Cal.App.4th 123] assume such based on defendants' points and authorities found at page 72 of the clerk's transcript.

        As a practical matter, it appears to us that paragraph six actually anticipated the possibility of defendants' urging the doctrine of the primary assumption of the risk; hence, we shall treat such conclusion as framing the dispositive issue of fact, namely whether the mascot's antics and their resulting distraction of the plaintiff operated to increase the inherent risks assumed by a spectator at a baseball game. In this regard, as plainly stated in Knight, "... it is well established that defendants generally do have a duty to use due care not to increase the risks to a participant over and above those inherent in the sport." (Knight v. Jewett, supra, 3 Cal.4th 296, 315-316, 11 Cal.Rptr.2d 2, 834 P.2d 696.) The rule is no different in instances involving spectators.

        The next step in the summary judgment analysis is to determine whether defendants' evidentiary filings in support of their motion were sufficient to provide the factual basis for making their affirmative defense available and thereby shifting the burden to plaintiff to demonstrate a triable issue of fact with reference thereto. (Code Civ. Proc., § 437c, subd. (o)(2).)

        As indicated earlier in the opinion, as part of the synopsis of the trial court proceedings, the only evidentiary filings by defendants in support of their motion were: (1) the declaration of Joseph Gagliardi; (2) a copy of a clipping from the Riverside Press Enterprise about mascots; and (3) excerpts of plaintiff's deposition. As prescribed by Knight, the burden to be surmounted by such filings was to show that any risk to spectators caused by the antics of the mascot did not operate to increase those inherent risks to which spectators at baseball games are unavoidably exposed. In other words, the key inquiry here is whether the risk which led to plaintiff's injury involved some feature or aspect of the game which is inevitable or unavoidable in the actual playing of the game. In the first instance, foul balls hit into the spectators' area clearly create a risk of injury. If such foul balls were to be eliminated, it would be impossible to play the game. Thus, foul balls represent an inherent risk to spectators attending baseball games. Under Knight, such risk is assumed. Can the same thing be said about the antics of the mascot? We think not. Actually, the declaration of Mark Monninger, the person who dressed up as Tremor, recounted that there were occasional games played when he was not there. In view of this testimony, as a matter of law, we hold that the antics of the mascot are not an essential or integral part of the playing of a baseball game. In short, the game can be played in the absence of such antics. Moreover, whether such antics increased the inherent risk to plaintiff is an issue of fact to be resolved at trial.

        Our view of the entire record leads to the conclusion that defendants offered nothing in the way of either relevant or competent evidence to [56 Cal.App.4th 124] resolve prima facie the dispositive issue of fact above recited; thus they failed to shift to plaintiff the burden contemplated by section 437c, subdivision (o)(2) of the Code of Civil Procedure. In this posture, the trial court was presented with a circumstance illustrated by Bashi v. Wodarz (1996) 45 Cal.App.4th 1314, 53 Cal.Rptr.2d 635. In that case, a summary judgment was reversed by the reviewing court. Relying on Varni Bros. Corp. v. Wine World, Inc. (1995) 35 Cal.App.4th 880, 41 Cal.Rptr.2d 740, the Bashi court stated, " '[w]here the evidence presented by defendant does not support judgment in [their] favor, the motion must be denied without looking at the opposing evidence, if any, submitted by plaintiff.' " (Id. at p. 1318, 53 Cal.Rptr.2d 635.) That is what the record shows here. (See also Parsons Manufacturing Corp. v. Superior Court (1984) 156 Cal.App.3d 1151, 1157, 203 Cal.Rptr.

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        Even so, we note further, under the holding in Neinstein v. Los Angeles Dodgers, supra, 185 Cal.App.3d 176, 229 Cal.Rptr. 612, absent any distraction by the mascot, that plaintiff could have assumed the risk. Justice Compton, writing in Neinstein, observed that the plaintiff "voluntarily elected to sit in a seat which was clearly unprotected by any form of screening.... She was sufficiently warned of the risk by common knowledge of the nature of the sport.... The Dodgers were under no duty to do anything further to protect her from the hazard." (Id. at p. 184, 229 Cal.Rptr. 612.) However, in Neinstein, there was no mascot bothering the plaintiff and thus distracting her attention from the playing field. Thus, Neinstein is readily distinguishable.

        The same can be said of the Clapman case decided by the Court of Appeals of New York. In that case, a spectator at Yankee Stadium was struck by a foul ball. He contended that a vendor moving in front of him obscured his view. As to this contention, the court said that "respondents had no duty to insure that vendors moving about the stadium did not interfere with Clapman's view." (Clapman v. City of New York, supra, 63 N.Y.2d 669, 479 N.Y.S.2d 515, 468 N.E.2d 697, 698.) That is not this case. In Clapman, the plaintiff at all times was facing the field of play. Here, plaintiff, because of the distraction, had turned away. This presents a substantially different set of facts, recognized at once by anyone who has ever attended a professional baseball game.

        Based upon the foregoing analysis, we hold that the trial court improperly granted the motion for summary judgment.

[56 Cal.App.4th 125]

DISPOSITION

        The judgment is reversed with directions to the trial court to vacate its order of January 7, 1996, and to enter a new and different order denying defendants' motion for summary judgment.

        RICHLI, Acting P.J., and WARD, J., concur.

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

* Retired Associate Justice of the Court of Appeal, Fourth District, sitting under assignment by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

1 The record on appeal does not contain a copy of an answer to the complaint; however, we assume that an answer was filed. It would not have been possible to move for summary judgment unless the case were at issue.

Negligence — amusements — dangers obviously inherent in sport accepted by those who take part — visitor to amusement park injured by fall from moving belt — negligence not predicated on testimony that he felt a jerk, where only risk was a fall and that was invited and foreseen — testimony of nurse that she had attended others injured at the sport not sufficient to show it perilous where used by a great number — verdict not sustained upon theory of liability different from that upon which case was submitted.

1. One who takes part in a sport accepts the dangers that inhere in it so far as they are obvious and necessary.

2. Where, therefore, a visitor to an amusement park, after ¦watching the operation of a moving belt which caused many who rode thereon either to jump or fall, stepped on the belt and, as he did so, felt what he describes as a sudden jerk and was thrown to the floor, receiving injury, negligence cannot be predicated merely upon the statement of his sensations. Whether the movement of the belt was uniform or irregular, the risk at greatest was a fall and that was the hazard invited and foreseen.

3. Testimony of a nurse employed at an emergency hospital, maintained in connection with the park, that she had attended patrons who had been injured at the same sport, though none seriously, is not enough to show that the game was a trap for the unwary, too perilous to be endured, where it appears there were two hundred and fifty thousand visitors thereto in one year.

4. A verdict may not be sustained upon a theory of liability different from that defined by the charge of the court and the bill of particulars limiting the complaint.

Murphy v. Steeplechase Amusement Co., Inc., 224 App. Div. 832, reversed.

APPEAL from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered November 12, 1928, affirming a judgment in favor of plaintiff entered upon a verdict.

Gardiner Conroy and Reginald S. Hardy for appellant. There was no proof of any negligence on the part of the appellant. (0'Toole v. Thousand Island Park Assn,, 206 App. Div. 31; Tryon v. Chalmers, 205 App. Div. 816; Dunning v. Jacobs, 15 Misc. Rep. 85; Flynn v. Central E. R. Co. of N. J., 142 N. Y. 439; Dwyer v. Hills Brothers Co., 79 App. Div. 45; Horton v. Vulcan, 13 App. Div. 508; Camp v. Wood, 76 N. Y. 92; Hart v. Grennell, 122 N. Y. 371; Larking. O'Neill, 119 N. Y. 221; Essig v. Lumber Operating & Mfg. Co., 183 App. Div. 198.) The risks incident to the " flopper " were open and obvious and assumed by the respondent as a matter of law. (Knott-nerus v. North Park Street R. Co., 93 Mich. 348; Lumsden v. Thompson Scenic Railway Co., 130 App. Div. 209; Barrett v. Lake Ontario Beach Imp. Co., 174 N. Y. 310; Matter of Moloney y. Cunard Steamship Co., 217 N. Y. 278.)

Charles Kennedy for respondent. The negligence of the appellant was clearly established. (Barrett v. Lake Ontario Beach Co., 174 N. Y. 310; Breen v. N. Y. C. & H. R. R. R. Co., 109 N. Y. 297; Cleveland v. Steamboat Co., 125 N. Y. 299; Donnelly v. City of Rochester, 166 N. Y. 315; Barrett v. Lake Ontario Beach Imp. Co., 174 N. Y. 310.) The plaintiff did not assume the risk of defendant's negligence. (Penn Co. v. Backes, 133 111. 255; Dowd v. N. Y., 0. & W. R. R. Co., 170 N. Y. 459; Lumsden v. Thompson Scenic R. R. Co., 130 App. Div. 209.)

CARDOZO, Ch. J. The defendant, Steeplechase Amusement Company, maintains an amusement park at Coney Island, New York.

One of the supposed attractions is known as " The Flopper." It is a moving belt, running upward on an inclined plane, on which passengers sit or stand. Many of them are unable to keep their feet because of the movement of the belt, and are thrown backward or aside. The belt runs in a groove, with padded walls on either side to a height of four feet, and with padded flooring beyond the walls at the same angle as the belt. An electric motor, driven by current furnished by the Brooklyn Edison Company, supplies the needed power.

Plaintiff, a vigorous young man, visited the park with friends. One of them, a young woman, now his wife, stepped upon the moving belt. Plaintiff followed and stepped behind her. As he did so, he felt what he describes as a sudden jerk, and was thrown to the floor. His wife in front and also friends behind him were thrown at the same time. Something more was here, as every one understood, than the slowly-moving escalator that is common in shops and public places. A fall was foreseen as one of the risks of the adventure. There would have been no point to the whole thing, no adventure about it, if the risk had not been there. The very name above the gate, the Flopper, was warning to the timid. If the name was not enough, there was warning more distinct in the experience of others. We are told by the plaintiff's wife that the members of her party stood looking at the sport before joining in it themselves. Some aboard the belt were able, as she viewed them, to sit down with decorum or even to stand and keep their footing; others jumped or fell. The tumbling bodies and the screams and laughter supplied the merriment and fun. " I took a chance," she said when asked whether she thought that a fall might be expected.

Plaintiff took the chance with her, but, less lucky than his companions, suffered a fracture of a knee cap. He states in his complaint that the belt was dangerous to life and limb in that it stopped and started violently and suddenly and was not properly equipped to prevent injuries to persons who were using it without knowledge of its dangers, and in a bill of particulars he adds that it was operated at a fast and dangerous rate of speed and was not supplied with a proper railing, guard or other device to prevent a fall therefrom. No other negligence is charged.

We see no adequate basis for a finding that the belt was out of order. It was already in motion when the plaintiff put his foot on it. He cannot help himself to a verdict in such circumstances by the addition of the facile comment that it threw him with a jerk. One who steps upon a moving belt and finds his heels above his head is in no position to discriminate with nicety between the successive stages of the shock, between the jerk which is a cause and the jerk, accompanying the fall, as an instantaneous effect. There is evidence for the defendant that power was transmitted smoothly, and could not be transmitted otherwise. If the movement was spasmodic, it was an unexplained and, it seems, an inexplicable departure from the normal workings of the mechanism. An aberration so extraordinary, if it is to lay the basis for a verdict, should rest on something firmer than a mere descriptive epithet, a summary of the sensations of a tense and crowded moment (Matter of Case, 214 N. Y. 199; Dochtermann v. Brooklyn Heights R. R. Co., 32 App. Div. 13, 15; 164 N. Y. 586; Foley v. Boston & Maine R. R. Co., 193 Mass. 332, 335; Work v. Boston El. Ry. Co., 207 Mass. 447, 448; N. & W. Ry. Co. v. Birchett, 252 Fed. Rep. 512, 515). But the jerk, if it were established, would add little to the case. Whether the movement of the belt was uniform or irregular, the risk at greatest was a fall. This was the very hazard that was invited and foreseen (Lumsden v. Thompson Scenic Ry. Co., 130 App. Div. 209, 212, 213).

Volenti non fit injuria. One who takes part in such a sport accepts the dangers that inhere in it so far as they are obvious and necessary, just as a fencer accepts the risk of a thrust by his antagonist or a spectator at a ball game the chance of contact with the ball (Pollock, Torts [11th ed.], p. 171; Lumsden v. Thompson Scenic Ry. Co., supra; Godfrey v. Conn. Co., 98 Conn. 63; Johnson v. City of N. Y., 186 N. Y. 139, 148; McFarlane v. City of Niagara Falls, 247 N. Y. 340,349; cf. 1 Beven, Negligence, 787; Bohlen, Studies in the Law of Torts, p. 443) The antics of the clown are not the paces of the cloistered cleric. The rough and boisterous joke, the horseplay of the crowd, evokes its own guffaws, but they are not the pleasures of tranquility. The plaintiff was not seeking a retreat for meditation. Visitors were tumbling about the belt to the merriment of onlookers when he made his choice to join them. He took the chance of a like fate, with whatever damage to his body might ensue from such a fall. The timorous may stay at home.

A different case would be here if the dangers inherent in the sport were obscure or unobserved (Godfrey v. Conn. Co., supra; TantiUo v. Goldstein Bros. Amusement Co., 248 N. Y. 286), or so serious as to justify the belief that precautions of some kind must have been taken to avert them (cf. O'Callaghan v. Dellwood Park Co., 242 111. 336). Nothing happened to the plaintiff except what common experience tells us may happen at any time as the consequence of a sudden fall. Many a skater or a horseman can rehearse a tale of equal woe. A different case there would also be if the accidents had been so many as to show that the game in its inherent nature was too dangerous to be continued without change. The president of the amusement company says that there had never been such an accident before. A nurse employed at an emergency hospital maintained in connection with the park contradicts him to some extent. She says that on other occasions she had attended patrons of the park who had been injured at the Flopper, how many she could not say. None, however, had been badly injured or had suffered broken bones. Such testimony is not enough to show that the game was a trap for the unwary, too perilous to be endured. According to the defendant's estimate, two hundred and fifty thousand visitors were at the Flopper in a year. Some quota of accidents was to be looked for in so great a mass. One might as well say that a skating rink should be abandoned because skaters sometimes fall.

There is testimony by the plaintiff that he fell upon wood, and not upon a canvas padding. He is strongly contradicted by the photographs and by the witnesses for the defendant, and is without corroboration in the testimony of his companions who were witnesses in his behalf. If his observation was correct, there was a defect in the equipment, and one not obvious or known. The padding should have been kept in repair to break the force of any fall. The case did not go to the jury, however, upon any such theory of the defendant's liability, nor is the defect fairly suggested by the plaintiff's bill of particulars, which limits his complaint. The case went to the jury upon the theory that negligence was dependent upon a sharp and sudden jerk.

The judgment of the Appellate Division and that of the Trial Term should be reversed, and a new trial granted, with costs to abide the event.

POUND, CRANE, LEHMAN, KELLOGG and HUBBS, JJ., concur; O'BRIEN, J., dissents on the authority of Tantillo v. Goldstein Brothers Amusement Co. (248 N. Y. 286).

Judgments reversed, etc.

Page 645

Page 646

        [695 P.2d 118] Davies, Roberts, Reid, Anderson & Wacker, Denny Anderson, Seattle, for appellant.

        Williams, Lanza, Kastner & Gibbs, Mary H. Spillane, Seattle, for respondents.

        DOLLIVER, Justice.

        This is an appeal from a wrongful death

Page 647

        The deceased, Doreen Shorter, was a Jehovah's Witness, as is her surviving husband, Elmer Shorter. Jehovah's Witnesses are prohibited by their religious doctrine from receiving blood transfusions.

        Doreen Shorter became pregnant late in the summer of 1979. In October of 1979, she consulted with the defendant, Dr. Robert E. Drury, a family practitioner. Dr. Drury diagnosed Mrs. Shorter as having had a "missed abortion". A missed abortion occurs when the fetus dies and the uterus fails to discharge it.

        When a fetus dies, it is medically prudent to evacuate the uterus in order to guard against infection. To cleanse the uterus, Dr. Shorter recommended a "dilation and curettage" (D and C). There are three alternative ways to perform this operation. The first is with a curette, a metal instrument which has a sharp-edged hoop on the end of it. The second, commonly used in an abortion, involves the use of a suction device. The third alternative is by use of vaginal suppositories containing prostaglandin, a chemical that causes artificial labor contractions. Dr. Drury chose to use curettes.

        Although the D and C is a routine medical procedure, there is a risk of bleeding. Each of the three principal methods for performing the D and C presented, to a varying degree, the risk of bleeding. The record below reflects

Page 648

        Dr. Drury described the D and C procedure to Mr. and Mrs. Shorter. He advised her there was a possibility of bleeding and perforation of the uterus. Dr. Drury did not discuss any alternate methods in which the D and C may be performed. Examination of Mr. Shorter at trial revealed he was aware that the D and C posed the possibility, albeit remote, of internal bleeding.

        The day before she was scheduled to receive the D and C from Dr. Drury, Mrs. Shorter sought a second opinion from Dr. Alan Ott. Mrs. Shorter advised Dr. Ott of Dr. Drury's intention to perform the D and C. She told Dr. Ott she was a Jehovah's Witness. Although he confirmed the D and C was the appropriate treatment, Dr. Ott did not discuss with Mrs. Shorter the particular method which should be used to perform it. He did, however, advise Mrs. Shorter that "she could certainly bleed during the procedure" and at trial confirmed she was aware of that possibility. Dr. Ott testified Mrs. Shorter responded to his warning by saying "she had faith in the Lord and that things would work out ..."

        At approximately 6 a.m. on November 30, Mrs. Shorter was accompanied by her husband to Everett General Hospital. At the hospital the Shorters signed the following[695 P.2d 119] form (underlining after heading indicates blanks in form which were completed in handwriting):

                    GENERAL HOSPITAL OF EVERETT
                REFUSAL TO PERMIT BLOOD TRANSFUSION
                -----------------------------------
Date November 30, 1979             Hour 6:15 a.m.
     -----------------                  ---------
I request that no blood or blood derivatives be administered to
Dorreen V. Shorter
------------------
during this hospitalization.  I hereby release the hospital, its
personnel, and the attending physician from any responsibility
whatever for unfavorable reactions or any untoward results due
to my refusal to permit the use of blood or its derivatives and I
fully understand the possible consequences of such refusal on my
part.
                       (/s/ Doreen Shorter)
                      ----------------------
                              Patient
                        (/s/ Elmer Shorter)
                      ----------------------
                     Patient's Husband or Wife

        The operation did not go smoothly. Approximately 1 hour after surgery, Mrs. Shorter began to bleed internally and go into shock. Emergency exploratory surgery conducted by other surgeons revealed Dr. Drury had severely lacerated Mrs. Shorter's uterus when he was probing with the curette.

        Mrs. Shorter began to bleed profusely. She continued to refuse to authorize a transfusion despite repeated warnings by the doctors she would likely die due to blood loss. Mrs. Shorter was coherent at the time she refused to accept blood. While the surgeons repaired Mrs. Shorter's perforated uterus and abdomen, Dr. Drury and several other doctors pleaded with Mr. Shorter to permit them to transfuse blood into Mrs. Shorter. He likewise refused. Mrs. Shorter bled to death. Doctors for both parties agreed a transfusion in substantial probability would have saved Doreen Shorter's life.

        Mr. Shorter thereafter brought this wrongful death action alleging Dr. Drury's negligence proximately caused Mrs. Shorter's death; the complaint did not allege a survival cause of action. The release was admitted into evidence over plaintiff's objection. Plaintiff took exception to jury instructions numbered 13 and 13A which dealt with assumption of the risk.

        The jury found Dr. Drury negligent and that his negligence was "a proximate cause of the death of Doreen Shorter". Damages were found to be $412,000. The jury determined, however, that Mr. and/or Mrs. Shorter "knowingly and voluntarily" assumed the risk of bleeding to death and attributed 75 percent of the fault for her death

Page 650

        The three issues before us concern the admissibility of the "Refusal to Permit Blood Transfusion" (refusal); whether assumption of the risk is a valid defense and if so, whether there is sufficient evidence for the jury to have found the risk was assumed by the Shorters; and whether the submission of the issue of assumption of the risk to the jury violated the free exercise clause of the First Amendment. The finding of negligence by Dr. Drury is not appealed by defendant.

        Plaintiff argues the purpose of the refusal was only to release the defendant doctor from liability for not transfusing blood into Mrs. Shorter had she required blood during the course of a nonnegligently performed operation. He further asserts the refusal as it applies to the present case violates public policy since it would release Dr. Drury from the consequences of his negligence.

        Defendant concedes a survival action filed on behalf of Mrs. Shorter for her negligently inflicted injuries would not be barred by the refusal since enforcement would violate public policy. Defendant argues, however, the refusal does not release the doctor for his negligence but only for the consequences arising out of Mrs. Shorter's voluntary refusal to accept blood, which in this case was death.

        While the rule announced by this court is that contracts against liability for negligence are valid except in those cases [695 P.2d 120] where the public interest is involved ( McCutcheon v. United Homes Corp., 79 Wash.2d 443, 486 P.2d 1093 (1971)), the refusal does not address the negligence of Dr. Drury. This being so it cannot be considered as a release from liability

Page 651

        Plaintiff categorizes the refusal as an all or nothing instrument. He claims that if it is a release of liability for negligence it is void as against public policy and if it is a release of liability where a transfusion is required because of nonnegligent treatment then it is irrelevant. We have already stated the document cannot be considered as a release from liability for negligence. The document is more, however, than a simple declaration that the signer would refuse blood only if there was no negligence by Dr. Drury. It is a specific request that no blood or blood derivatives be administered to Mrs. Shorter. The attending physician is released from "any responsibility whatever for unfavorable reactions or any untoward results due to my refusal to permit the use of blood or its derivatives." (Italics ours.) The release signed by the Shorters further stated: "I fully understand the possible consequences of such refusal on my part."

        We find the refusal to be valid. There was sufficient evidence for the jury to find it was not signed unwittingly but rather voluntarily. See Baker v. Seattle, 79 Wash.2d 198, 484 P.2d 405 (1971); Restatement (Second) of Torts § 496B (1965). The record shows Dr. Ott advised Mrs. Shorter that her refusal to accept a transfusion could place her life in jeopardy if she bled from a D and C. Dr. Ott further testified there was a risk of bleeding with a routine D and C and that if she then refused a transfusion she might die. Specifically, Dr. Ott stated he advised Mrs. Shorter that if a

Page 652

        We also hold the release was not against public policy. We emphasize again the release did not exculpate Dr. Drury from his negligence in performing the surgery. Rather, it was an agreement that Mrs. Shorter should receive no blood or blood derivatives. The cases cited by defendant, Tunkl v. Regents of Univ. of Cal., supra; Colton v. New York Hosp., 98 Misc.2d 957, 414 N.Y.S.2d 866 (1979); Olson v. Molzen, 558 S.W.2d 429 (Tenn.1977), all refer to exculpatory clauses which release a physician or hospital from all liability for negligence. The Shorters specifically accepted the risk which might flow from a refusal to accept blood. Given the particular problems faced when a patient on religious grounds refuses to permit necessary or advisable blood transfusions, we believe the use of a release such as signed here is appropriate. See Ford, Refusal of Blood Transfusions by Jehovah's Witnesses, 10 Cath.Law. 212 (1964). Requiring physicians or hospitals to obtain a court order would be cumbersome and impractical. Furthermore, it might subject the hospital or physician to an action under 42 U.S.C. § 1983. See Holmes v. Silver Cross Hosp., 340 F.Supp. 125 (N.D.Ill.1972). The alternative of physicians or hospitals refusing [695 P.2d 121] to care for Jehovah's Witnesses is repugnant in a society which attempts to make medical care available to all its members.

        We believe the procedure used here, the voluntary execution of a document protecting the physician and hospital and the patient is an appropriate alternative and not contrary to the public interest.

Page 653

        If the refusal is held valid, defendant asserts it acts as a complete bar to plaintiff's wrongful death claim. We disagree. While Mrs. Shorter accepted the consequences resulting from a refusal to receive a blood transfusion, she did not accept the consequences of Dr. Drury's negligence which was, as the jury found, a proximate cause of Mrs. Shorter's death. Defendant was not released from his negligence. We next consider the impact of the doctrine of assumption of the risk on this negligence.

        Plaintiff argues the trial court erred in admitting jury instructions 13 and 13A on the ground that assumption of the risk is no longer a recognized defense in Washington, except in products liability. Plaintiff alternatively argues that even if assumption of the risk remains a viable defense, there was no evidence in the present case from which the jury may have found that Mrs. Shorter, in signing the release form, knowingly and voluntarily assumed the risk that Dr. Drury would negligently perform the D and C, proximately causing her death.

        Defendant argues the assumption of the risk doctrine remains viable after enactment of the former comparative negligence statute (RCW 4.22) in cases in which the plaintiff expressly, as opposed to impliedly, assumes the risk of the defendant's negligence. He further asserts Mrs. Shorter, when she signed the blood transfusion release, expressly assumed the risk of bleeding to death even though her chances of bleeding to death may have been increased by his negligence.

        Jury instruction 13 provided:

        Assumption of the risk is conduct on the part of a person claiming injury or damage which is a proximate cause of the injury or damage complained of.

        If you find that Mr. or Mrs. Shorter assumed a risk which was a proximate cause of Mrs. Shorter's death, you must determine the degree of such conduct, expressed as a percentage, attributable to Mr. & Mrs. Shorter.... Using 100% as to the total combined conduct of the parties

Page 654

        Jury instruction 13A provided:

        A person who fully understands a risk of harm to himself or a member of his family and who voluntarily submits to such risk under circumstances which manifest his willingness to assume the risk is not entitled to recover for harm within that risk.

        In this case Mr. and Mrs. Shorter did not voluntarily assume the risk of negligence by defendant, but did voluntarily assume the risks relating to the refusal of transfusions of blood or blood products.

        In Lyons v. Redding Constr. Co., 83 Wash.2d 86, 515 P.2d 821 (1973), decided before the enactment of the comparative negligence statute, we analyzed the assumption of risk doctrine. Plaintiff directs our attention to the following language in Lyons in which this court predicted that enactment of the comparative negligence statute would sound the death knell for the defense of assumption of risk.

        The decision reached here today has been long-aborning. Somewhat ironically, its effects will be short-lived. The assumption of risk in special and limited situations or contributory negligence on the part of a plaintiff has the effect of denying all recovery regardless of degree of fault. But this all or nothing result will be abandoned or changed on April 1, 1974, because the Washington state legislature has recently enacted a [695 P.2d 122] comparative negligence statute [RCW 4.22.010, repealed in 1981 (Laws of 1981, ch. 27, p. 112), but in effect at the time of the events leading to this action] ...

        ... Accordingly, it has been held the effect of the comparative negligence standard shall be to completely abrogate the assumption of risk doctrine as known and applied heretofore.

        Lyons, at 95-96, 515 P.2d 821.

        Plaintiff misreads Lyons in asserting that it abandoned the defense of assumption of risk in toto. The reference of the Lyons court to the gloomy future of the assumption of risk doctrine was directed only at the form of

Page 655

        Courts and commentators have struggled with the issue as to whether and to what extent the defense of "reasonable" assumption of risk survives the enactment of comparative negligence statutes. See W. Keeton, supra § 68, at 495 n. 54 (citing commentators); Annot., Effect of Adoption of Comparative Negligence Rules on Assumption of Risk, 16 A.L.R.4th 700, 711 (1982). To determine whether the giving of the assumption of risk jury instruction was error, the type of risk the Shorters are alleged to have assumed must be identified.

        Prosser classifies the forms of assumption of risk as follows: express, implied primary, implied reasonable, and implied unreasonable. W. Keeton, supra § 68, at 496. It is not argued the Shorters' conduct in assuming the risk is not "implied unreasonable" assumption of the risk; nor do we need to determine whether "implied primary" or "implied reasonable" assumption of risk survived the comparative negligence statute. See W. Keeton, supra § 68, at 496-98. We confine our analysis to the validity of express assumption of risk and the extent to which it applies in the circumstances of this case.

        Express assumption of the risk is a defense when:

[T]he plaintiff, in advance, has given his express consent to relieve the defendant of an obligation of conduct toward him, and to take his chances of injury from a known risk arising from what the defendant is to do or leave undone.

        W. Keeton, supra § 68, at 480. Jurisdictions with comparative negligence statutes have generally held that the defense of express assumption of the risk survives the enactment of these statutes. V. Schwartz, Comparative Negligence § 9.2, at 159 (1974 & Supp.1981). See,

Page 656

        Former RCW 4.22.010 does not expressly state it abolishes the assumption of risk doctrine; it only mentions "contributory negligence". Express assumption of the risk, however, is not "negligence". It is merely a form of waiver or consent. W. Keeton, supra § 68, at 496. Keegan v. Anchor Inns, Inc., supra. We hold the doctrine of express assumption of risk survived the enactment of the comparative negligence statute, RCW 4.22.010, and is applicable in Washington. See Lyons v. Redding Constr. Co., 83 Wash.2d 86, 95, 515 P.2d 821 (1973).

The doctrine, assumption of risk, will, in the Prosser [W. Prosser, Torts § 68 (4th ed. 1971) ] idiom, have retained validity where there is an express agreement to assume, or the plaintiff has assumed a [695 P.2d 123] risk with knowledge of willful, wanton, or reckless negligence of the defendant.

        (Italics in original omitted. Italics ours.) Lyons, at 95, 515 P.2d 821. See Klein v. R.D. Werner Co., 98 Wash.2d 316, 319, 654 P.2d 94 (1982). See also V. Schwartz, supra; W. Keeton, supra § 68, at 496.

        The next question is whether the Shorters could be found by the jury to have expressly assumed the risk that Dr. Drury's performance of the D and C could be negligent, thereby increasing Mrs. Shorter's chances of bleeding to death. For a person expressly to assume the risk of another's conduct, that person must have knowledge of the risk, appreciate and understand its nature, and voluntarily choose to incur it. W. Keeton, supra § 68, at 486-87; Martin v. Kidwiler, 71 Wash.2d 47, 49, 426 P.2d 489 (1967). The test is a subjective one: Whether the plaintiff in fact understood

Page 657

        The general rule is that for persons to assume a risk, they must be aware of more than just the generalized risk of their activities; there must be proof they knew of and appreciated the specific hazard which caused the injury. See Runnings v. Ford Motor Co., 461 F.2d 1145, 1148 (9th Cir.1972); Garcia v. South Tucson, 131 Ariz. 315, 640 P.2d 1117 (Ct.App.1981). From this rule, plaintiff argues that while he and his wife were aware of the generalized risk of bleeding to death, they did not understand Mrs. Shorter's chances of bleeding to death would be greatly increased by Dr. Drury's negligence. The Shorters, however, did not merely assume a "generalized risk". They assumed the specific risk that Mrs. Shorter might die from bleeding if she refused to permit a blood transfusion. See Simpson v. May, 5 Wash.App. 214, 486 P.2d 336 (1971).

        The Shorters signed the refusal which stated that they waived professional liability for "unfavorable reactions" or "untoward results" due to Mrs. Shorter's refusal to permit the use of blood. Mrs. Shorter consulted with Drs. Drury and Ott, both of whom advised her that the D and C, even if nonnegligently performed, could result in fatal bleeding. Furthermore, the Shorters were repeatedly advised Mrs. Shorter was bleeding and that without a transfusion her death was imminent.

        Plaintiff calls our attention to the common law principle that a person cannot assume the risk of another's negligence. See, e.g., Regan v. Seattle, 76 Wash.2d 501, 458 P.2d 12 (1969) (driver of "go-cart" on race course does not assume extraordinary risk that there may be spilled water on the course); Wood v. Postelthwaite, 6 Wash.App. 885, 496 P.2d 988 (1972) (golfer does not assume extraordinary, unforeseen risk of being hit by golf ball due to inadequate

Page 658

        The defendants do not argue, nor do we hold, that the Shorters assumed the risk of the "direct consequences" of Dr. Drury's negligence. Those "consequences" would be recoverable in a survival action under RCW 4.20.046, .050, and .060. Defendant argues, however, and we agree, that the Shorters could be found by the jury to have assumed the risk of death from an operation which had to be performed without blood transfusions and where blood could not be administered under any circumstances including where the doctor made what would otherwise have been correctable surgical mistake. The risk of death from a failure to receive a transfusion to which the Shorters exposed themselves was created by, and must be allocated to, the Shorters themselves.

        The case of Mainfort v. Giannestras, 49 Ohio Op. 440, 111 N.E.2d 692 (C.P.1951) is on point. In Mainfort, the plaintiff, a diabetic, consulted with the defendant doctor regarding an operation to lengthen his leg. [695 P.2d 124] The doctor explained the operation was particularly risky, due to the possibility that a bone infection might result from the diabetes. The doctor alleged he advised the plaintiff the operation was risky, for the above reasons, "notwithstanding that said treatment and operation would be done in strict and full accord with approved and proper medical methods and practices". Mainfort, at 441, 111 N.E.2d 692. The plaintiff nevertheless consented. The doctor performed the operation negligently and the plaintiff's diabetic condition aggravated the doctor's negligence. Although it acknowledged that plaintiff did not assume the risk of the negligently performed operation, the court upheld the assumption of risk defense to the extent it barred negligence damages accruing to the plaintiff's diabetic conditions. The court held:

Page 659

[The assumption of risk defense] is strictly confined to the consequences growing out of the diabetic condition, which condition, and the risks it attached to the operation, is alleged to have been fully made known to the plaintiff by the defendant before the plaintiff consented to the operation.

        Mainfort, at 442, 111 N.E.2d 692.

        Mr. and Mrs. Shorter did not assume the risk of the negligence. The risk they did assume was the risk of death as the consequence of their refusal to permit a blood transfusion.

        Finally, plaintiff asserts the submission of the issue of assumption of the risk to the jury violated the free exercise clause of the First Amendment. Plaintiff concedes he has found no cases involving the effect of a patient's refusal of blood in a malpractice action. Nevertheless, plaintiff claims error in the refusal of the trial court to give his proposed instruction 24 which would have told the jury compensation could not be denied because of a refusal of blood for religious reasons. While the Supreme Court has stated the free exercise clause of the First Amendment forbids the "state condition[ing] receipt of an important benefit upon conduct proscribed by a religious faith", Thomas v. Review Bd., 450 U.S. 707, 717, 101 S.Ct. 1425, 1432, 67 L.Ed.2d 624 (1981), a prerequisite for First Amendment cases is that there be some state action or interference. Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963); Thomas v. Review Bd., supra. There is none here. This is a dispute between private individuals; plaintiff is denied no rights under the First Amendment.

        To summarize: The refusal was properly placed before the jury; the instructions on assumption of the risk were not in error and the issue was properly before the jury; there was no violation of the free exercise clause of the First Amendment.

Page 660

        Affirmed.

        WILLIAM H. WILLIAMS, C.J., DIMMICK and ANDERSEN, JJ., and CUNNINGHAM, J. Pro Tem., concur.

        PEARSON, Justice (dissenting).

        The majority holds the Shorters did not assume the risk of Dr. Drury's negligence. I fully agree. The refusal form did not specifically state that Dr. Drury was released from damages resulting from his negligence, nor is there evidence the Shorters were specifically aware of the precise nature and extent of possible injury. See Restatement (Second) of Torts § 496 B, Comment b, Comment d (1965); Colton v. New York Hosp., 98 Misc.2d 957, 414 N.Y.S.2d 866 (1979); Martin v. Kidwiler, 71 Wash.2d 47, 426 P.2d 489 (1967).

        The majority further holds the Shorters assumed the risk of death at the point where Dr. Drury's negligence created a life-threatening situation; that holding is tantamount to a holding that the Shorters assumed the risk of Dr. Drury's negligence. Thus, the majority seeks to accomplish its desired result through an analysis that attempts to mask its real effect: substantially excusing the doctor from liability for his negligence. I do not agree with this analysis or result. I therefore dissent.

        [695 P.2d 125] The majority's holding necessarily decides the Shorters assumed the risk of death from refusal to take blood, no matter how the necessity for blood arose. I would agree that if the necessity for blood resulted from the non-negligent performance of the procedure, the Shorters assumed the risk of death resulting from their refusal to take blood. See Colton v. New York Hosp., supra. But, if the need for blood arose from the doctor's negligence, the majority would hold the Shorters still assumed the risk of death resulting from their refusal to take blood. Unlike the majority, I see a significant difference between the two scenarios.

        The risk of excessive bleeding inherent in the non-negligent performance of the procedure was increased by the

Page 661

        However, the additional risk of bleeding to death created by the doctor's negligence is not a risk that should be allocated to the Shorters. If the Shorters are held to have assumed the risk of death from refusing blood, even when the blood was required because the doctor was negligent, that is in effect holding that the Shorters assumed the risk of the doctor's negligence. To expressly assume the risk of another's conduct, one must have knowledge of the risk, appreciate and understand its nature, and voluntarily choose to incur it. W. Keeton, Torts § 68, at 486-87 (5th ed. 1984); Martin v. Kidwiler, supra at 49, 426 P.2d 489. Express assumption of a risk requires assent to both the specific type and the magnitude of the risk. 57 Am.Jur.2d Negligence § 281, at 674 (1971). Additionally, a person does not have the duty to foresee negligence when he voluntarily exposes himself to a known risk. See Jones v. Wittenberg Univ., 534 F.2d 1203 (6th Cir.1976).

        Traditional tort analysis forecloses the result reached by the majority because the evidence in this case is insufficient to support a finding of assumption of risk by the Shorters. Dr. Drury's negligence greatly increased Mrs. Shorter's chances of bleeding to death; thus, the "magnitude" of the risk was increased. The record clearly reflects the fact that the Shorters believed the procedure was routine. The dangers of performing the D and C were never fully explained to the Shorters; they were not informed that three methods of accomplishing the procedure were available, nor were they told that the method Dr. Drury planned to use was the method most likely to result in uterine perforation and

Page 662

        The majority concedes the Shorters did not expressly assume the risk of the doctor's negligence. Having decided that, it logically follows that the Shorters did not expressly assume the risk of bleeding to death as a result of refusing blood, where the need for such blood resulted from the doctor's negligence rather than from the risks inherent in the procedure itself.

        Accordingly, we come full circle: the Shorters did not assume the risk of negligence; they similarly did not assume the risk that a refusal of blood, which was necessitated by that negligence, would cause death. Only through the most strained analysis can the majority find that the Shorters assumed any risk here, beyond[695 P.2d 126] those risks inherent in a non-negligently performed procedure.

        Thus, the jury could not have found that the Shorters assumed the risk of death under the facts here. I would hold it was error to submit the assumption of risk question to the jury. Accordingly, I would strike the finding that the Shorters assumed the risk of 75 percent of their injury and reinstate the full $412,000 verdict to Mr. Shorter. See Klein v. R.D. Werner Co., supra at 320, 654 P.2d 94.

        DORE, BRACHTENBACH and UTTER, JJ., concur.

*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.

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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.