Opinion

SULLIVAN, J.

In this action for damages for personal injuries, plaintiff John Gyerman appeals from a judgment entered after a nonjury trial denying him any recovery against defendant United States Lines Company (United States Lines).

We set forth the pertinent facts.1 Plaintiff, an experienced longshoreman, was an employee of Associated Banning Company (Associated Banning), a stevedore company. Plaintiff was assigned to work in a warehouse operated under a lease by defendant United States Lines at Wilmington, California. The warehouse was adjacent to a dock and was used to store cargo unloaded from vessels. On the occasion in question, 100-pound burlap sacks of fishmeal, stacked on wooden pallets, had been unloaded from the hold of a vessel and moved by forklifts into the warehouse for storage. Plaintiff’s job was to “break down” the stacks in the warehouse with a forklift so that they were no more than two pallets *493high and could be more easily loaded by the truckers picking up the cargo for delivery to its consignees.

The fishmeal was a difficult cargo to handle, because the sacks had a tendency to tear and to spill their contents. As a result the stacks were subject to shifting and tilting. The sacks of fishmeal were usually piled onto palletboards three or four layers high, with 18 to 22 sacks on each pallet. As a general practice the sacks were “bulkheaded” or tied in. In other words, they were so arranged that no one sack was directly on top of another, but rested on several sacks for firmer support, analogous to the arrangement of bricks in a building.

Upon arriving at defendant’s warehouse on a Monday, plaintiff noticed that some of the fishmeal stacks were unusually arranged. They appeared to have more than 30 sacks to a pallet, and were not “bulkheaded.”2

There was a conflict in the testimony as to plaintiff’s actions following these observations. Plaintiff testified that on the first morning he complained to defendant’s chief marine clerk, Kenneth Noel, asking the latter, “How do you expect me to break this down with this hazardous condition that you have over here on this land side?” According to plaintiff, Noel replied, “John, there is nothing I can do about it. Just do the best you know how.” Called as a defense witness, on direct examination, Noel denied that he had any conversation with plaintiff about the safety of the loads. On cross-examination, he reiterated this denial even when challenged with a statement in his deposition, taken a year and a half after the accident, that he did not remember whether or not such a conversation had taken place.3

Plaintiff, who was the only longshoreman assigned to “breaking down” the stacks, spoke to no one else about the condition of the cargo. The only supervisory personnel with whom he had contact on this job were his foreman and defendant’s marine clerk, Noel. The record is unclear as to the extent of the latter’s authority over the longshoremen. The major function of defendant’s warehouse employees was to keep track of the movement of the cargo. However, defendant’s marine clerks directed Asso*494dated Banning’s forklift operators on such matters as where to place the pallets of cargo and how they should be stacked.

Plaintiff testified that the only effective supervision of his work was by defendant’s marine clerks, that he was under orders from his own foreman to take directions from defendant’s employees, and that refusal to do so could subject him to discharge by his own employer. He stated that he complained about the cargo to Noel “[bjecause he was the only one there acting on part of supervision, and, also, as chief supervisor for the U.S. Lines.” However, the record also indicates that it was not the function of defendant’s marine clerks to supervise the work methods of Associated Banning. Plaintiff’s own foreman, who was supervising 15 to 20 other longshoremen at a pier six to eight blocks away, appeared at the warehouse for only a few minutes each day. His primary function was to ascertain for payroll purposes whether plaintiff was working and whether or not he would be needed for another day on this job.

Plaintiff’s safety expert, Joseph Bayer, testified on cross-examination that it was both the duty and the right of a longshoreman to refuse to handle clearly dangerous overloads. Bayer also stated that there is “[n]o way whatsoever” for a longshoreman to remove the cargo once it is stacked three pallet boards high, with 30 or more stacks per pallet board, without exposing himself to danger. Noel testified that it was the custom on the docks for a longshoreman who found a dangerous condition to report it to his business agent.

Herman Hargett, manager of labor relations for Associated Banning, was subpoenaed, and called as a witness by defendant. His duties were to represent not only Associated Banning but the industry as a whole in negotiations and disputes pertaining to contracts between the longshoremen and the various employers belonging to the Pacific Maritime Association. He testified that the dock foreman was the immediate superior of the longshoremen working on the dock and in the warehouse, including those operating forklifts, but that defendant’s marine clerks told the forklift operators where to place the cargo and how high to arrange the stacks of pallets. He stated that “if [a condition] is unsafe, he should immediately stop work until it is made safe. This is contractual language,” referring to the contract between the Pacific Maritime Association and the International Longshoremen’s Union.4

*495According to Hargett, under this contract, if a longshoreman encountered an unsafe condition, he was supposed to stop work immediately. “In Gyerman’s case, if there was no supervision there immediately to take care of the situation, why, he would have to surmount it by setting it aside or getting another lot to work on, or have supervision called, which in this case the U.S. Lines would have called us, and we would have sent men there to take care of the situation, if he was in such a condition he couldn’t operate.”

After his conversation with Noel, plaintiff proceeded to break down the fishmeal stacks by using a forklift, which was equipped with a canopy to protect the operator against being struck by falling cargo. During his first three days on the job, more than the usual number of sacks tumbled from loads which plaintiff was moving, but all were deflected from striking him by the forklift’s canopy. At 4 p.m. on Thursday a dozen or more sacks fell at once from the top of a load that plaintiff was moving, causing a ricochet effect. At least one of the sacks was apparently propelled toward plaintiff from an unprotected side of the forklift. Plaintiff recalls seeing the entire load shifting towards him, as if sacks were falling off the top pallet. He found himself on the floor on the left side of the forklift opposite the seat, without knowing exactly what knocked him off the vehicle. As a result he sustained injuries to his lower back and legs.

Plaintiff commenced the present action for damages for the personal *496injuries allegedly caused by defendant’s negligence. Defendant denied the material allegations of the complaint and as an affirmative defense asserted that plaintiff himself was guilty of contributory negligence in that he carelessly and negligently drove and operated the forklift so as to cause the accident. 5 At the first trial a jury returned a verdict for defendant. The court granted a new trial on the ground of the insufficiency of the evidence to support the verdict.6 The order granting a new trial was affirmed on appeal. (Gyerman v. United States Lines Company, 2 Civ. 31209, filed March 25, 1968, certified for nonpublication.)

*495“Supplement III.

*496The appellate court rejected defendant’s threefold contention that the trial court had abused its discretion in granting a new trial because (1) there was no evidence of defendant’s negligence, (2) there was no evidence that any negligence of defendant was a proximate cause of plaintiff’s injury, and (3) the evidence established that plaintiff was contributorily negligent as a matter of law. In its opinion, the Court of Appeal set forth the conversation between plaintiff and Noel, defendant’s employee. It also referred to defendant’s statutory duty as an employer, under Labor Code sections 6302, 6304, and 6400-6404,7 to furnish plaintiff a safe place to work, *497and found abundant evidence that defendant had breached its duty to plaintiff by using a method of pallet-stacking which violated section 3256, subdivision (b) of the General Safety Orders of the Division of Industrial Safety.8 The Court of Appeal concluded that, “Although there was some evidence from which there might arise a whisper of contributory negligence on respondent’s part, that hint of contributory negligence cannot be converted into negligence upon his part as a matter of law.”

On retrial, it was stipulated by the parties that the matter could be heard by the court sitting without a jury on the transcript of the first trial. After considering the pleadings, the transcript and the arguments of counsel, the trial court found in substance that defendant negligently maintained and stored the fishmeal cargo in a dangerous and unsafe condition “which was a proximate cause of plaintiff’s injuries”; that jt was plaintiff’s duty to stop work immediately when he encountered an unsafe condition and report it to his own supervisor; that plaintiff encountered what he considered to be an unsafe condition, for four days prior to his accident but “failed to report these conditions to his own supervisor, even though he had contact with his supervisor daily, and in so failing to report the condition he violated a duty of care owed for his own protection, which violation amounted to the failure to use ordinary care, and which failure was the proximate cause of his injuries”; and that the condition “was not impossible to correct” and there was no reason to excuse plaintiff from failing to perform his duty of care for his own protection.

The court concluded that defendant was negligent and that its negligence was the proximate cause of plaintiff’s injuries; that plaintiff was contributorily negligent and “that his contributory negligence was the proximate cause of [his] injuries”; and that defendant was entitled to judgment.9 Judgment was entered accordingly. This appeal followed.

Only plaintiff’s contributory negligence is at issue on this appeal. Plain*498tiff challenges the adverse judgment on this point on the grounds that (1) the trial judge ignored the doctrine of law of the case, (2) defendant was estopped from asserting plaintiff’s contributory negligence, and (3) defendant failed to sustain its burden of proving plaintiff’s contributory negligence.10

1. The Law of the Case

The opinion in the first appeal does not, as plaintiff urges, foreclose subsequent determination of contributory negligence by operation of the law of the case doctrine. As stated by Witkin, “The doctrine of ‘law of the case’ deals with the effect of the first appellate decision on the subsequent retrial or appeal: The decision of an appellate court, stating a rule of law necessary to the decision of the case, conclusively establishes that rule and makes it determinative of the rights of the same parties in any subsequent retrial or appeal in the same case.” (6 Witkin, Cal. Procedure (2d ed. 1971) Appeal, § 633, p. 4552, original italics; see Tally v. Ganahl (1907) 151 Cal. 418, 421 [90 P. 1049].) But, the “discussion or determination of a point not necessary to the disposition of a question that is decisive of the appeal is generally recorded as obiter dictum and not as the law of the case.” (Stockton Theatres, Inc. v. Palermo (1956) 47 Cal.2d 469, 474 [304 P.2d 7].) “It is fundamental that the point relied upon as law of the case must have been necessarily involved in the case.” (Witkin, supra, § 647, p. 4564, original italics.)

In the case at bench, the first appeal by defendant unsuccessfully challenged the order granting plaintiff a new trial. In affirming that order, it was necessary for the Court of Appeal to determine only that the trial court had not abused its discretion. If it had concluded that plaintiff had been contributorily negligent as a matter of law, then it would have been obliged to reverse the new trial order. But the Court of Appeal held that plaintiff could not be considered contributorily negligent as a matter of *499 law. (See, e.g., M & M Transport v. Cal. Auto Transport (1955) 43 Cal.2d 847, 850-851 [279 P.2d 13]; Anthony v. Hobbie (1945) 25 Cal.2d 814, 818 [155 P.2d 826].)

In other words, the decision on the first appeal left the issue of contributory negligence for the determination of the trier of fact upon retrial, holding that the evidence was not so clear that reasonable men could not reach, different conclusions. Indeed, the Court of Appeal’s statement that “there was some evidence from which there might arise a whisper of contributory negligence on [plaintiff’s] part” lends support to this interpretation. Although the record included some evidence of contributory negligence, it was not sufficient to support a conclusion that the trial court abused its discretion in ordering a new trial. Therefore the judge on retrial, as the trier of fact, was free to decide the issue of contributory negligence as it appeared to him, regardless of the identity of the record in the two trials.

2. Estoppel to Assert Contributory Negligence

Plaintiff next contends that defendant should be estopped from asserting contributory negligence as a defense because its marine clerk, Noel, misled plaintiff by informing him that nothing could be done about the dangerous condition of the palletized cargo. But this contention is raised for the first time on appeal and was not a part of the theory on which the case was tried. Plaintiff did not claim in the trial court that he was misled by Noel’s statement and he “is not permitted to change his position . . . on appeal.” (Ernst v. Searle (1933) 218 Cal. 233, 240-241 [22 P.2d 715].) Plaintiff seeks to bring himself within the exception to this rule which permits a change of theory if “a question of law only is presented on the facts appearing in the record . . . .” (Panopulos v. Maderis (1956) 47 Cal.2d 337, 341 [303 P.2d. 738]; see also Ward v. Taggart (1959) 51 Cal.2d 736, 742 [336 P.2d 534].) We have said that the “existence of an estoppel is generally a question of fact for the trial court whose determination is conclusive oil"appeal unless the opposite conclusion is the only one that can be reasonably drawn from the evidence. [Citation.] When the evidence is not in conflict and is susceptible of only one reasonable inference, the existence of an estoppel is a question of law. [Citation.]” (Driscoll v. City of Los Angeles (1967) 67 Cal.2d 297, 305-306 [61 Cal.Rptr. 661, 431 P.2d 245].) The crucial fact upon which plaintiff must base his estoppel argument is his purported conversation with Noel, defendant’s employee, but all of the facts pertinent to that conversation were strongly disputed at trial.11 Under the circumstances, we cannot conclude that as a matter *500of law defendant should be held estopped from asserting the defense of contributory negligence. To that defense we now direct our attention.

3. Contributory Negligence

As we have already pointed out, the trial court essentially found that (1) defendant negligently maintained and operated its warehouse by storing fishmeal sacks in a dangerous and unsafe condition and (2) plaintiff himself, upon encountering this condition, was negligent in failing to report it to his own supervisor and that such “failure was the proximate cause of his injuries.”12 The court further found that the unsafe condition “was not impossible to correct.” The nucleus of the court’s decision then was that plaintiff’s failure to report was a proximate cause- of his injuries because-if he had reported it, the condition would have been corrected. Plaintiff contends that in the light of all the evidence indicating that the condition could not be corrected and in the absence of any evidence to the contrary, defendant failed to sustain its burden of proof as to both contributory negligence and proximate cause.

“Contributory negligence is conduct on the part of the plaintiff which falls below the standard to which he should conform for his own protection, and which is a legally contributing cause co-operating with the negligence of the defendant in bringing about the plaintiff’s harm.” (Rest. 2d Torts (1965) § 463; see Prosser, Torts (4th ed. 1971) § 65, pp. 416-417.) The question of contributory negligence is ordinarily one of fact for the determination of the trier of fact. (Pike v. Frank G. Hough Co. (1970) 2 Cal.3d 465, 473 [85 Cal.Rptr. 629, 467 P.2d 229]; Gray v. Brinkerhoff (1953) 41 Cal.2d 180, 183-184 [258 P.2d 834].) “A plaintiff is required to exercise only that amount of care which *501would be exercised by a person of ordinary prudence in the same circumstances.” (Werkman v. Howard Zink Corp. (1950) 97 Cal.App.2d 418, 421 [218 P.2d 43].) Where a person must work under possibly unsafe or dangerous conditions, the amount of care he must exercise for his own safety may well be less than would otherwise be required by reason of the necessity of his giving attention to- his work. (Pike v. Frank G. Hough Co., supra, 2 Cal.3d at p. 473; Austin v. Riverside Portland Cement Co. (1955) 44 Cal.2d 225, 239 [282 P.2d 69].) The burden of proving that the plaintiff was negligent and that such negligence was a proximate cause of the accident is on the defendant. (Anthony v. Hobbie, supra, 25 Cal.2d at p. 818; Gett v. Pacific G. & E. Co. (1923) 192 Cal. 621, 631 [221 P. 376]; Rest. 2d Torts, § 477.)

In the instant case, absent evidence of the contract governing plaintiff’s employment and of the custom and practice affecting stevedoring, we doubt that the record would provide evidentiary support for the finding that plaintiff violated a standard of due care for his own safety. Considered in the light of the realities of his working life (see Austin v. Riverside Portland Cement Co., supra, 44 Cal.2d at p. 239), the laborer’s duty may become considerably restricted in scope. In some instances he may find himself powerless to abandon the task at hand with impunity whenever he senses a possible danger; in others, he may be uncertain as to which person has supervision of the job or control of the place of employment, and therefore unsure as to whom he should direct his complaint; in still others, having been encouraged to continue working under conditions where danger lurks but has not materialized, he may be baffled in making an on-the-spot decision as to the imminence of harm. All of these factors enter into a determination whether his conduct falls below a standard of due care.

In the case before us the standard of due care required of laborers in general is explicated by evidence of duty imposed by contract and by custom upon the particular type of laborer involved. Custom alone, of course, does not create the standard of proper diligence. “Indeed in most cases reasonable prudence is in fact common prudence; but strictly it is never its measure . . . .” (The T. J. Hooper (2d Cir. 1932; Hand, L., J.) 60 F.2d 737, 740, cert. den. sub nom. Eastern Transportation Co. v. Northern Barge Corp., 287 U.S. 662 [77 L.Ed. 571, 53 S.Ct. 220]; see Complete Serv. Bur. v. San Diego Med. Soc. (1954) 43 Cal.2d 201, 214 [272 P.2d 497]; Prosser, Torts, supra, § 33, pp-, 166-168.)13 Never*502theless, although custom does not fix the standard of care, evidence of custom is ordinarily admissible for its bearing upon contributory negligence. (Fowler v. Key System Transit Lines (1951) 37 Cal.2d 65, 68 [230 P.2d 339]; 2 Harper and James, Torts (1956) § 173, pp. 977-978.)

In the case at bench, the fact that a longshoreman faced with a safety hazard would generally report it to his own supervisor and would thereafter proceed with the job only as further directed by his superior suggests that plaintiff should have been more diligent in registering his complaint. Furthermore, the collective bargaining agreement under which plaintiff worked (see fn. 3, ante) and with which he was familiar indicates that a longshoreman had a significant amount of responsibility in respect to the reporting of unsafe working conditions. Testimony corroborates an interpretation of this contract as giving the longshoreman an absolute right to stop work if there is a safety hazard, and, by complaining to his steward, to set in motion the arbitration process.14 Plaintiff testified that he complained only to Noel “[b]ecause he was the only one there acting on part of supervision”; nevertheless his justification in relying on Noel’s response was ultimately a question of fact appropriately left to the trier of fact (Meloy v. Texas Co. (1953) 121 Cal.App.2d 691, 700 [263 P.2d 897]). Although the unsafe condition in the storage of the fishmeal was created by defendant’s employees, in view of the foregoing evidence we conclude that there is sufficient support in the record for the finding that plaintiff failed to use ordinary care for his own protection.

We must now inquire whether defendant sustained its burden of establishing that plaintiff’s failure to report the unsafe condition was a “legally contributing cause ... in bringing about the plaintiff’s harm.” (Rest. 2d Torts, § 463.) As previously noted, the trial court appears to have deter*503mined that plaintiff’s failure was a proximate cause of his injuries because if plaintiff had reported the condition it would have been corrected.15

On this issue the positions of the parties may be summarized thusly: Plaintiff argues that the burden was on defendant to prove that if plaintiff had reported the condition to his own supervisor instead of to defendant’s supervisor, the condition would have been corrected or made safer. Defendant asserts that it was not incumbent upon it to prove that the condition complained of was correctable and that in any event there is evidence supporting the trial court’s finding.

The burden of proof rests on each party to a civil action as to each fact essential to his claim or defense (Evid. Code, § 500). A party claiming a person failed to exercise due care has the burden of proof on that issue (Evid. Code, § 521). The burden of proving all aspects of the affirmative defense of contributory negligence, including causation, rests on the defendant (Anthony v. Hobbie, supra, 25 Cal.2d at p. 818; Gett v. Pacific G. & E. Co., supra, 192 Cal. at p. 631; Rest. 2d Torts, § 477), unless the elements of the defense may be inferred from the plaintiff’s evidence. (Blanton v. Curry (1942) 20 Cal.2d 793, 804 [129 P.2d 1].) The burden must be met by more than conjecture or speculation (Reese v. Smith (1937) 9 Cal.2d 324, 328 [70 P.2d 933]; Prosser, Proximate Cause in California (1950) 38 CffiX.Rev. 369, 381.) Merely because plaintiff asserts that his own negligence, if any, could not have caused his injury, does not shift to him the burden of proof on the issue. Otherwise denial of any essential element of the defense case would shift the burden of proof on that issue to the plaintiff.

“The plaintiff’s negligence is a legally contributing cause of his harm if, but only if, it is a substantial factor in bringing about his harm and there is no rule restricting his responsibility for it.” (Rest. 2d Torts, § 465(1).) The rules determining this causal connection between the plaintiff’s negligence and his harm are the same as those determining the causal relation between the defendant’s negligence and the harm resulting to *504others. (Rest. 2d Torts, §§ 465(2), 430, 431; Prosser, Torts, supra, § 65, p. 421.)

The fundamental question, then, is whether the plaintiff, as “the negligent actor has so produced the harm to himself ... for which he is sought to be held responsible ... as to make the law regard his conduct as the cause of the harm . . .'(Rest. 2d Torts, pp. 425-426.) His “conduct must be a substantial factor operating with the defendant’s negligence in bringing about the plaintiff’s harm ....’’ (Rest. 2d Torts, § 465, com. b); that is, it must have “such an effect in producing the harm as to lead reasonable men to regard it as a cause, using that word in the popular sense, in which there always lurks the idea of responsibility . . . .” (Rest. 2d Torts, § 431, com. a.)

We turn now to the facts of the case before us. It is obvious, of course, from what we have said that plaintiff did not create or maintain the dangerous and unsafe conditions of storage. The trial court found upon substantial evidence that defendant negligently maintained and operated its warehouse under those conditions. It was defendant who had control of the cargo and directed its disposition and high stacking throughout the warehouse. Defendant alone created this risk of harm which materialized in the toppling of the stacks. ■>,

Nor did the trial court find that plaintiff was negligent in his operation of the forklift16 or in his “breaking down” the particular stack of fishmeal whose sacks fell from the top of the load and injured him. In short there is no finding that any negligent conduct of plaintiff, operating with defendant’s negligence, brought about the shifting and eventual dislodging of the sacks. According to the trial court’s findings, plaintiff’s negligence consisted solely in his failure to report the dangerous condition to his own supervisor. Our task then is to find in the record evidence showing, or from which it can be reasonably inferred, that this omission was a substantial factor in bringing about plaintiff’s harm.

Defendant’s theory of causation is that if plaintiff had reported the dangerous condition to his Associated Banning supervisor, that firm would have made the condition safer. An examination of the record, however, discloses no evidence establishing this theory. Indeed, although defendant vigorously asserts that the record supports a finding of proximate cause, it points to only one page of the extensive record for such evidence. At this part of the record, defendant’s witness Hargett responded on direct *505examination to a question about what a longshoreman should do upon encountering an unsafe condition. Hargett replied that he would have to get another lot to work on or “have supervision called, . . . and we would have sent men there to take care of the situation, if he was in such a condition he couldn’t operate.”

In our view this testimony does not show that the stacks would have been made safer. Although it indicates that the problem would have received immediate attention, it provides no clue as to what, if anything, could have been done to break down the stacks of fishmeal more safely than by the use of forklifts. Indeed, other than the vague statement, as to sending “men there to take care of the situation” no evidence at all was offered as to specific measures that would be taken. Nor does evidence as to the existence of a grievance procedure, formalized in the ILWU-PMA contract (see fn. 4, ante) constitute proof that in the particular situation culminating in plaintiff’s injury, steps would have been taken to make the situation safer. Finally the trial court’s suggestions made in its memorandum of decision (see fn. 15, ante) that the offending bags could have been removed by using ladders or having other forklift drivers remove them one at a time are not based upon evidence in the record and therefore do not support the finding. Indeed such suggestions only point up the complete lack of defense evidence in the record on this critical issue. The record does not establish that plaintiff’s failure to- report the dangerous condition was a substantial factor in bringing about the fall of the sacks.

In view of the foregoing we conclude that defendant did not meet its burden of proving that plaintiff’s contributory negligence was a proximate cause of his injuries.

“The appellate courts have power to order a retrial on a limited issue, if that issue can be separately tried without such confusion or uncertainty as would amount to a denial of a fair trial. [Citations.] Whether it can or not depends upon the circumstances of each case.” (Brewer v. Second Baptist Church (1948) 32 Cal.2d 791, 801 [197 P.2d 713]; see also Templeton Feed & Grain v. Ralston Purina Co. (1968) 69 Cal.2d 461, 469 [72 Cal.Rptr. 344, 446 P.2d 152]; Little v. Superior Court (1961) 55 Cal. 2d 642, 645 [12 Cal.Rptr. 481, 361 P.2d 13].)

The issue of plaintiff’s contributory negligence is separate and distinct from that of defendant’s negligence. Although there are two aspects of the former issue, namely the question whether plaintiff was himself negligent and the question whether such negligence, if any, was a proximate cause of the accident, we are not satisfied that in the instant case they are so separate and distinct that the issue of proximate cause can be separately *506tried “without such confusion or uncertainty as would amount to a denial of a fair trial,” especially if it were tried to a jury. In the presentation of evidence on the issue of contributory negligence, the hue of demarcation between these two aspects frequently becomes blurred. (See Rest. 2d Torts, § 463.)

The issue of defendant’s negligence has been properly determined and we see no reason why it should be relitigated. Retrial should be had on the issue of plaintiff’s contributory negligence (including the issue of whether such negligence, if any, was the proximate cause of the- accident) and, if such issue is resolved favorably to plaintiff, on the issue of damages.

The judgment is reversed and the cause is remanded with directions for a new trial limited to the issues of plaintiff’s contributory negligence and of damages. Each party shall bear his or its own costs on appeal.

Wright, C. J., McComb, J., Peters, J., Tobriner, J., and Burke, J., concurred.

Opinion

SULLIVAN, J.

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

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

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

I

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

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

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

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

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

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

II

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Ill

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The judgment is reversed.

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

MOSK,

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

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

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

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

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

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

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

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

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

CLARK, J.

I dissent.

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

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

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

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

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

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

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

McComb, J., concurred.

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

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 *683School. 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 *684duty 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 Plaintiffs 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 *685finding, 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.

*686Chief 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 *687also 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. *688The 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 *689of 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 Hmrison 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 *690494 [499]; Adler v. American Standard Corp., 291 Md. [31], 45, 432 A.2d 464 [472], The Court, therefore, has been particularly reluctant to alter a common law rule in the face of indications that to do so would be contrary to the public policy of the State. See, e.g., Condore v. Prince George’s Co., 289 Md. [516] 532, 425 A.2d 1011 [1019].”

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

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

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

III.

Since the time of Harrison, this Court has continued to recognize the standard of contributory negligence as the applicable principle in Maryland negligence actions. See, e.g., Thomas v. Panco Management of Maryland, LLC, 423 Md. 387, 417, 31 A.3d 583, 601 (2011); Erie Insurance Exchange v. Heffernan, 399 Md. 598, 925 A.2d 636 (2007); Dehn v. Edgecombe, 384 Md. 606, 865 A.2d 603 (2005); Franklin v. Morrison, 350 Md. 144, 168, 711 A.2d 177, 189 (1998); County Commissioners v. Bell Atlantic, 346 Md. 160, 695 A.2d 171 (1997); Brady v. Parsons Co., 327 Md. 275, 609 A.2d 297 *691(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 plaintiffs injuries. It is said that contributory negligence provides harsh justice to those who may have acted negligently, in minor ways, to contribute to their injuries, and that it absolves those defendants from liability who can find any minor negligence in the plaintiffs’ behavior.

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

“[bjecause 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 *692added 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).

*693Since 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 *694adopt 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"); Holliday 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 *695the common law. Adler v. American Standard Corp., 291 Md. at 47, 432 A.2d at 473.”

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

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

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

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

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

HARRELL, J.,

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

Paleontologists and geologists inform us that Earth’s Cretaceous period (including in what is present day Maryland) ended approximately 65 million years ago with an asteroid striking Earth (the Cretaceous-Paleogene Extinction Event), wiping-out, in a relatively short period of geologic time, most plant and animal species, including dinosaurs. As to the last premise, they are wrong. A dinosaur roams yet the landscape of Maryland (and Virginia, Alabama, North Carolina and the District of Columbia), feeding on the claims of persons injured by the negligence of another, but who contributed proximately in some way to the occasion of his or her injuries, however slight their culpability. The name of that dinosaur is the doctrine of contributory negligence. With the force of a modern asteroid strike, this Court should render, in the *696present 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.

*697Soon after Butterfield, American courts began to recognize the doctrine of contributory negligence. See Smith v. Smith, 19 Mass. (2 Pick.) 621 (1824); William L. Prosser, Comparative Negligence, 51 Mich. L.Rev. 465, 468 (1953). Although early courts explained rarely the reasons for their adoption of the doctrine, scholars set forth later multiple reasons for its widespread acceptance in the U.S. in the nineteenth and early twentieth centuries. For example, its ascendance was considered a means of encouraging potential plaintiffs to comply with the relevant standard of care, 4 Harper, James & Gray on Torts, § 22.2 at 340 (3d ed. 2006) (hereinafter “Harper, James & Gray”); requiring plaintiffs to enter court with clean hands, Prosser & Keeton on the Law of Torts, § 65 at 451 (5th ed. 1984) (hereinafter “Prosser & Keeton”); and, insulating developing industry from liability and fostering economic growth by keeping in check plaintiff-minded juries. Id. at 452; 4 Harper, James & Gray, supra, § 22.1 at 328-30. The doctrine was seen also as consistent with “several unwritten policies of the [nineteenth and early twentieth century] common law” — specifically, the idea that courts should not assist someone who contributes to causing his or her own injuries, and the “passion for a simple issue that could be categorically answered yes or no ...” Harrison, 295 Md. at 450, 456 A.2d at 897-98; see also Edward S. Digges, Jr. & Robert Dale Klein, Comparative Fault in Maryland: The Time Has Come, 41 Md. L.Rev. 276, 278 (1982); Prosser & Keeton, supra, § 65 at 452.

Whatever the initial justifications attributed to its birth, contributory negligence has been a mainstay of Maryland law since its adoption in Irwin v. Sprigg, 6 Gill 200 (1847).1 Since *698that 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.”2 Sanner v. Guard, 236 Md. 271, 276, 203 A.2d 885, 888 (1964).

The all-or-nothing consequences of the application of contributory negligence have long been criticized nationally by scholars and commentators. See, e.g., Hilen v. Hays, 673 S.W.2d 713, 717 (Ky.1984) (“A list of the critics of contributory negligence as a complete bar to a plaintiffs 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 *699not slow in coming, and it has been with us for more than a century.”); 2 Dan B. Dobbs, Paul T. Hayden & Ellen M. Bublick, The Law of Torts, § 218 at 763 (2d ed. 2011) (hereinafter “Dobbs”) (“The traditional contributory negligence rule was extreme not merely in results but in principle. No satisfactory reasoning has ever explained the rule.”). Many have argued instead for, and most states have adopted,3 a system of comparative negligence which apportions damages between a negligent plaintiff and a negligent defendant according to each party’s relative degree of fault. Thus, under a comparative negligence system, a plaintiffs contributory negligence does not bar recovery, but rather reduces proportionately his or her damages in relation to his or her degree of fault.4 2 Dobbs, supra, § 220 at 771.

This Court considered previously whether to replace the common law doctrine of contributory negligence with a system of comparative fault. See Harrison, 295 Md. 442, 456 A.2d 894; Pittsburg & Connellsville R.R. Co. v. Andrews, 39 Md. 329, 351 (1874) (noting that a doctrine requiring the relative fault of a plaintiff and defendant to be compared “has never been sanctioned in this State, but the exact contrary is the settled rule here”). We confronted this question most recently nearly thirty years ago. In Harrison, we considered *700whether to abrogate judicially contributory negligence in the midst of a nation-wide movement to transition to a system of comparative fault.5 We engaged first in a comparison of the historical and doctrinal principles of both contributory and comparative negligence. Harrison, 295 Md. at 449-53, 456 A.2d at 897-99. Although recognizing the growing trend toward adopting principles of comparative fault, id. at 456-58, 456 A.2d at 901-02, we noted, on the other hand, Maryland’s long history of applying the doctrine of contributory negligence. Id. at 458, 456 A.2d at 902. See Irwin, 6 Gill at 205 (adopting the doctrine of contributory negligence); Pittsburg & Connellsville R.R. Co., 39 Md. at 351 (affirming Maryland’s adherence to contributory, rather than comparative, negligence).

Although acknowledging further that jurisdictions transitioning from contributory negligence to comparative fault regimes experienced little difficulty in doing so, Harrison, 295 Md. at 454, 456 A.2d at 900, we noted that making such a doctrinal change requires consideration of a multitude of options and implications. Id. at 462-63, 456 A.2d at 904-05. For example, this Court would have to choose between a pure or modified fault system, and consider “the effect which a comparative fault system would have on other fundamental areas of negligence law,” such as the “last clear chance doctrine, assumption of the risk, joint and several liability, contribution, setoffs and counterclaims, and application of the doctrine to other fault systems, such as strict liability in tort....” Id. at 455, 456 A.2d at 900. Noting the lack of uniformity among the systems adopted by new comparative fault jurisdictions in their treatment of these areas, we characterized the decision whether to adopt either pure or modified *701comparative fault as one “plainly involving] 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 plaintiffs argument, in the present state of the law, we leave any change in the established doctrine to the Legislature.

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

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

Unquestionably (as the Majority opinion agrees — see Maj. op. at 691-93, 69 A.3d at 1156-57), this Court has the power to *702change the doctrine of contributory negligence. Although the common law may be changed also by legislative act, Md. Const. Deel. 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 Amici6 claim princi*703pally that this Court is bound by its decision in Harrison to retain the doctrine of contributory negligence; but, assuming that we are not bound by Harrison, Respondent contends that the abrogation of contributory negligence is more appropriate for legislative, rather than judicial, action, due to the complex policy considerations involved in adopting comparative negligence. I disagree. Principles of stare decisis do not require continued adherence to our decision in Harrison, nor does this Court owe continued deference to the General Assembly simply because of the difficult choices inherent in formulating a comparative negligence rule. Thus, I would abolish the doctrine of contributory negligence and replace it with comparative fault — “not because [it is] easy, but because [it is] hard.” President John F. Kennedy, Address at Rice University on the Nation’s Space Effort (12 Sept. 1962).7

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

Under the doctrine of stare decisis, changes in long-standing “decisional doctrine are left to the Legislature” for purposes of “certainty and stability.” Harrison, 295 Md. at 458-59, 456 A.2d at 902 (quoting Deems v. Western Md. Ry. Co., 247 Md. 95, 102, 231 A.2d 514, 518 (1967)). Stare decisis, meaning to stand by the thing decided, “promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.” *704 Livesay v. Baltimore Cnty., 384 Md. 1, 14, 862 A.2d 33, 40-41 (2004) (quoting Payne v. Tennessee, 501 U.S. 808, 827, 111 S.Ct. 2597, 2609, 115 L.Ed.2d 720 (1991)). Notwithstanding the doctrine of stare decisis, the common law remains “subject to judicial modification in the light of modern circumstances or increased knowledge.” Ireland, 310 Md. at 331, 529 A.2d at 366. As we stated in Harrison, we have never construed the doctrine of stare decisis “to inhibit us from changing or modifying a common law rule by judicial decision where we find, in light of changed conditions or increased knowledge, that the rule has become unsound in the circumstances of modern life, a vestige of the past, no longer suitable to our people.” 295 Md. at 459, 456 A.2d at 903.

Although this Court has declined frequently to alter longstanding 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 “[increased 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 *705landlords to refuse unreasonably and arbitrarily a lessee’s request to sublet or assign a lease in favor of a standard of reasonableness, after noting summarily that the common law interpretation is a “vestige of the past” and contrary to established public policy. 320 Md. 1, 8-9, 575 A.2d 735, 738-39 (1990).

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

Shortly after our decision in Harrison, however, we abrogated the common law doctrine of interspousal immunity in negligence actions.8 Boblitz v. Boblitz, 296 Md. 242, 462 A.2d *706506 (1983). In so doing, we distanced ourselves from our prior cases and characterized the decision as one appropriate for judicial action.9 We considered persuasive the evolution of society’s conceptions regarding women and the trend toward abrogation in other states, concluding that the foundation of the doctrine no longer coincided with modern values. Thus, we determined that we could depart fairly from principles of stare decisis and overrule the doctrine’s application in negligence actions as a “vestige of the past.” Id. at 273-75, 462 A.2d at 521-22. We distinguished Harrison, however, as both possessing a history of legislative inaction on proposed bills (lacking in the context of interspousal immunity) and involving necessarily more complex issues, stating that Harrison represented an attempt to grant judicially that which “the Legislature repeatedly had rejected efforts to achieve legislatively.” Id. at 274, 462 A.2d at 521. Yet, we emphasized that, despite our decision in Harrison, it remains well within the authority of this Court to abrogate an outmoded rule of the common law. Id. at 274, 462 A.2d at 522.

We abandoned completely the doctrine of interspousal immunity finally in Bozman v. Bozman, 376 Md. 461, 830 A.2d 450 (2003). We noted that, because forty-six states had done so already, in full or in part, “the trend and, indeed, the great weight of authority” was in favor of abrogating the common law doctrine as “outdated and serving] 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 aboli*707tion. 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 plaintiffs irresponsibility in failing to use due care for his own safety erased whatever fault could be laid at defendant’s feet for contributing to the injury.” Scott v. Rizzo, 96 N.M. 682, 634 P.2d 1234, 1237 (1981) (citing F. Harper and F. James, Law of Torts, § 22.1 at 1198 (1956)). Neither of these justifications, however, carry weight in present-day Maryland. In today’s soci*708ety,10 there has been no need demonstrated to protect any “newly-developing” industry at the expense of injured litigants. Industry generally in this nation is no longer fledgling or so prone to withering at the prospect of liability. See, e.g., Alvis v. Ribar, 85 Ill.2d 1, 52 Ill.Dec. 23, 421 N.E.2d 886, 893 (1981) (“There is no longer any justification for providing the protective barrier of the contributory negligence rule for industries of the nation at the expense of deserving litigants.”); Frummer v. Hilton Hotels Int'l, Inc., 60 Misc.2d *709840, 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 “frustrated 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 *710two parties on one of them alone, and that one the injured plaintiff, least able to bear it, and quite possibly much less at fault than the defendant who goes scot-free.” Prosser, Comparative Negligence, supra, at 469.

Respondent and its Amici count as a strength of the doctrine of contributory negligence its inflexibility in refusing to compensate any, even marginally, at-fault plaintiff. They argue that, in so doing, contributory negligence encourages personal responsibility by foreclosing the possibility of recovery for potential, negligent plaintiffs, and thus cannot possibly be outmoded.11 To the contrary, that the doctrine of contributory negligence grants one party a windfall at the expense of the other is, as courts and commentators alike have noted, unfair manifestly as a matter of policy. See, e.g., Kaatz v. State, 540 P.2d 1037, 1048 (Alaska 1975) (“The central reason for adopting a comparative negligence system lies in the inherent injustice of the contributory negligence rule.”); Hoffman v. Jones, 280 So.2d 431, 436 (Fla.1973) (“Whatever may have been the historical justification for [the rule of contributory negligence], today it is almost universally regarded as unjust and inequitable to vest an entire accidental loss on one of the parties whose negligent conduct combined with the negligence of the other party to produce the loss.”); Lande & MacAlister, supra, at 4 (“The ‘all or nothing’ system [of contributory negligence], disconnected from a party’s degree of fault, is unfair and counterintuitive.”); Prosser, Comparative Negligence, supra, at 469 (characterizing contributory negligence as “outrageous” and an “obvious injustice” that *711“[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 plaintiffs recoverable damages. Unlike contributory negligence, however, comparative fault deters also negligence on the part of the defendant by holding him or her responsible for the damages that he or she inflicted on the plaintiff. See Lande & MacAlister, supra, at 5-6 (noting that, although contributory negligence systems “burden[ ] only plaintiffs with the obligation to take precautions,” comparative negligence provides a “mixture of responsibility” that is “the best way to prevent most accidents”); Prosser, Comparative Negligence, supra, at 468 (“[T]he assumption that the speeding motorist is, or should be meditating on the possible failure of a lawsuit for his possible injuries lacks all reality, and it is quite as reasonable to say that the rule promotes accidents by encouraging the negligent defendant.”). Thus, Respondent’s contention that contributory negligence encourages personal responsibility, and is therefore preferable to comparative negligence, is unpersuasive.

Respondent contends also that the foundation of contributory negligence remains strong because, as we said in Harrison, “Maryland cases do not reflect any general dissatisfaction with the contributory negligence doctrine.” 295 Md. at 458, 456 A.2d at 898. That the courts of this State have applied uniformly the doctrine, however, does not mean that we did not recognize along the way its flaws.12 See Bozman, 376 Md. at 472, 830 A.2d at 457. For example, as Judge Eldridge *712noted 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 Pla *713 cek v. City of Sterling Heights, 405 Mich. 638, 275 N.W.2d 511, 515 (1979) (“[Ajlmost every common-law jurisdiction outside the United States has discarded contributory negligence and has adopted in its place a more equitable system of comparative negligence.”); John W. Wade, A Uniform Comparative Fault Act—What Should it Provide?, 10 U. Mich. J.L. Reform 220, 221 (1977) (noting that after England, Canada, and Australia abrogated contributory negligence, the United States became the “primary location of the contributory negligence rule”), with the exception of Maryland, Alabama, the District of Columbia, North Carolina, and Virginia. See 2 Dobbs, supra, § 220 at 772.

Respondent argues, in effect, that there has not been a significant change in the state of law or society since Harrison, and therefore there is no reason to depart from stare decisis and reconsider whether the doctrine of contributory negligence should be retained in the State of Maryland. I could not disagree more. At the time Harrison was decided, the country was in the midst of a broad reform effort sweeping the nation. The doctrine of comparative fault was of fairly recent vintage at the time Harrison was filed, adopted in most states in the ten years prior to our decision. See Robert D. Cooter & Thomas S. Ulen, An Economic Case for Comparative Negligence, 61 N.Y.U. L.Rev. 1067, 1075 (1986) (noting that most states adopted comparative negligence in the 1970s and early 1980s). Essentially, Respondent contends that, because our decision in Harrison was made when the movement toward reform of negligence principles was well underway, this Court is constrained to retain the doctrine forever, having missed the single opportunity to get on board the train. Respondent’s argument seems to suggest that, so long as there is some delay in abandoning an unjust law, the unjust law remains irretrievably an albatross tied around the neck of our common law, unless and until the Legislature decides to save us.13 As our decision in Bozman demonstrates, however, *714our authority to modify the common law and overrule prior decisions is not so limited.

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

Although I recognize certainly the value of the doctrine of stare decisis, see, e.g., Unger v. State, 427 Md. 383, 418, 48 *715A.3d 242, 262 (2012) (Harrell, J., dissenting), I do not believe that in this instance, strict adherence is appropriate or warranted. See, e.g., Alvis, 52 Ill.Dec. 23, 421 N.E.2d at 896 (“Clearly, the need for stability in law must not be allowed to obscure the changing needs of society or to veil the injustice resulting from a doctrine in need of reevaluation.”); McIntyre v. Balentine, 833 S.W.2d 52, 56 (Tenn.l992)(declining to “mindlessfly]” 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! ] reluctance] 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 *716noted 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, *717378 (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 “[tjrying to determine what the legislature intended (or did not intend) by rejecting those bills is no easy assignment” and declining to draw either a positive or negative inference from the rejected bills).

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

I acknowledge, of course, that legislative consideration of comparative negligence did not cease with our decision in Harrison. The General Assembly considered numerous comparative negligence bills since Harrison, but has not to this date reached an agreement that comparative negligence should become the law of this State by legislative act.16 The *718pace 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 inter-spousal immunity before acting. See Stokes, 248 Md. at 692, 237 A.2d at 763; Ennis, 222 Md. at 543, 161 A.2d at 702; Fernandez, 214 Md. at 524, 135 A.2d at 889. Decades later, after noting the Legislature’s continued stasis on the subject, we rescinded our deference and modernized an outdated common law rule. See Bozman, 376 Md. 461, 830 A.2d 450; Boblitz, 296 Md. 242, 462 A.2d 506.

*719Other states, too, abrogated judicially the doctrine of contributory negligence in spite of legislative inaction on proposed bills of like objective.17 For example, during the approximate*720ly 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 negli*721gence” 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 *722negligence 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 1988 to leave the choice to the General Assembly. Id. at 463, 456 A.2d at 905. Respondent contends that, because this decision implicates policy considerations and this Court is limited in its consideration of the impact on collateral doctrines and principles by the facts of this case,18 we should continue to refrain from adopting comparative negligence and disrupting long-settled law to avoid confusion and disarray in our courts. Moreover, Respondent and its Amici argue that abolishing the doctrine of contributory negligence is bad public policy. They contend that in so doing, we would inject chaos and uncertainty into an area of settled law, and increase litigation, insurance rates, and taxes.19

Although the transition from contributory to comparative negligence systems is plainly “a policy issue of major dimen*723sion,” I do not think that it is an issue on which awaiting legislative catharsis is appropriate any longer. Contributory negligence is a spawn of the court system — and as such, this Court is eminently able and uniquely situated to stay the course. Moreover, as the South Carolina Court of Appeals noted, the potential for a legislative body to affect comprehensively a doctrinal substitution has not proven out uniformly in execution. Langley v. Boyter, 284 S.C. 162, 325 S.E.2d 550, 560 (App.1984), quashed, 286 S.C. 85, 332 S.E.2d 100 (1984), cited with approval, Nelson v. Concrete Supply Co., 303 S.C. 243, 399 S.E.2d 783, 784 (1991) (“[T]he history of legislative action in the various states which have adopted the doctrine [of comparative negligence] by statute reveals that comprehensive statutes are not usually adopted.”). Rather, most states adopting comparative negligence via legislative act have enacted short-form statutes that leave most doctrinal issues to be shaped and developed by the courts. Id.

Additionally, deferring this issue to a future court or legislative session on grounds that the present case offers insufficient facts to reach binding declarations regarding all collateral doctrines and principles does not weigh so heavily as this Court’s responsibility to administer justice. As this argument goes, “in essence, ... where a court cannot correct all injustice, it should correct none.” Id. I am not persuaded that making the change by judicial decision, necessarily leaving some further development of the doctrine of comparative negligence to another day, will wreak havoc on our system of justice or the State’s economy. To the contrary, the experiences of other states, having made an analogous change, “provide an accurate barometer of what can be expected after abrogation.” Bozman, 376 Md. at 496, 830 A.2d at 471. In the twelve other states to abrogate by judicial decision the doctrine of contributory negligence, there is scant evidence that the judicial system was thrown into unmanageable disarray. In fact, other courts noted that “the fears of administering the doctrine are greater than the reality,” and that the difficulties presumed inherent in the adoption of comparative negligence “are outweighed by the injustices attendant upon *724any 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 plaintiffs contributory negligence. 4 Harper, James & Gray, supra, § 22.15 at 458. Thus, even if the plaintiffs 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 plaintiffs relative fault in varying de*725grees, depending on the standard adopted. Under such systems, a plaintiff “escapes the contributory negligence bar only if his share of the responsibility falls within a specified limitation.” 4 Harper, James & Gray, supra, § 22.15 at 458. States that adopt a modified system generally choose one of two forms, allowing recovery of damages by a plaintiff reduced by the percentage of his or her own fault if either (1) the plaintiff’s relative fault is less than the combined fault of all of the defendants;20 or (2) the plaintiffs relative fault is not greater than the combined fault of all of the defendants.21,22

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, “[njeither party is unjustly enriched[, and] [njeither party escapes liability resulting from his negligent acts or omissions.” Alvis, 421 N.E.2d at 897. The shades of gray in jury determinations23 assigning propor*726tions of fault is not, in a pure system, the difference between substantial recovery and no recovery at all. See Prosser, Comparative Negligence, supra, at 493-94 (“It is obvious that a slight difference in the proportionate fault [under a modified system] may permit a recovery; and there has been much quite justified criticism of a rule under which a plaintiff who is charged with 49 per cent of the total negligence recovers 51 percent of his damages, while one who is charged with 50 per cent recovers nothing at all.”). Critics of pure comparative negligence call it a “radical break” from the principles of contributory negligence, and view a modified version instead as a logical evolution away from contributory negligence. See Bradley v. Appalachian Power Co., 163 W.Va. 332, 256 S.E.2d 879, 885 (1979) (noting an unwillingness “to abandon the concept that where a party substantially contributes to his *727own 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 (“[Ojnly 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,24 it is the preferred version among states adopting comparative negligence by judicial decision. Nine of the twelve states adopting comparative negligence judicially have chosen a pure system,25 while three chose a modified version.26 Modified systems “reintroduce in *728large measure the very same all-or-nothing feature of contributory negligence that the remedy of comparative negligence is designed to overcome,” by establishing a new set point at which recovery for a contributorily negligent plaintiff is barred. 4 Harper, James & Gray, supra, § 22.15 at 463; see also Li, 119 Cal.Rptr. 858, 532 P.2d at 1242 (criticizing a modified system as simply shifting the “lottery aspect” of contributory negligence to a different set point); Alvis, 52 Ill.Dec. 23, 421 N.E.2d at 898 (“There is no better justification for allowing a defendant who is 49% at fault to completely escape liability than there is to allow a defendant who is 99% at fault under the old rule to escape liability.”). Maryland courts should apply a system of pure comparative fault in negligence actions.

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

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

*729Even after the abrogation of contributory negligence, the spirit of that doctrine will remain in some statutory provisions. For example, as Respondent and its Amici point out, the principles of contributory negligence are codified in various limited contexts in the Maryland Code. That remnants of a discarded common law doctrine may remain after its abolition does not provide, however, a reason to retain it in its entirety for all purposes. Cf. Bozman, 376 Md. at 488, 830 A.2d at 466 (acknowledging that despite the Court’s abolition of the doctrine of interspousal immunity, remnants of the common law concept upon which the doctrine was based remain in Maryland law). We do not have the authority to overrule any principles of contributory negligence embedded currently in the statutory law of this State. See Md. Const. Decl. of Rts. art. 8. Thus, where the Legislature codified these principles as a complete bar to recovery in those limited contexts, it will continue to serve as a defense in those actions governed by the relevant statute, unless and until the General Assembly decides otherwise. See Md. Code (1977, 2009 Repl. Vol.), Transportation Article § 19—101(b) (“This State or a political subdivision of this State may use the defense of contributory negligence and assert the doctrine of last clear chance in an action brought or defense raised under this section.”); Md. Code (1977, 2009 Repl. Vol.), Transportation Article §19-102(c) (“This State or a political subdivision of this State may use the defense of contributory negligence and assert the doctrine of last clear chance in an action brought or defense raised under subsection (b) of this section.”). Where the principles of contributory negligence have not been codified, however, the doctrine of pure comparative negligence, as the common law of this state, should apply henceforth.27

Interestingly, concepts of contributory negligence will continue to be embedded in Maryland common law under a comparative fault system. The adoption of comparative fault abolishes the doctrine of contributory negligence as a complete *730bar to a plaintiffs recovery, but an individual’s “contributory negligence” remains relevant as a consideration in determining his or her degree of fault in contributing to his or her injury. Thus, statutes that disallow presently certain conduct from consideration as evidence of contributory negligence may have continued applicability in a comparative fault system,28 while others 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 *731health of our State and local government. Because the unavailability of contributory negligence as an absolute bar to recovery will increase the number of “meritless claims presented,” they argue, governments will face increased liability. The possibility that state and local governmental liability may increase following the adoption of comparative fault is by no means certain. There is no evidence, and indeed Amici provide none, that other states have experienced skyrocketing governmental liability and fiscal disaster following the adoption of comparative negligence. Moreover, the adoption of comparative fault by no means limits the reactive power of the General Assembly. To the contrary, the Legislature remains in the position to observe the actual impacts of a comparative fault system in Maryland and adopt or amend statutes accordingly, if it deems change necessary.29 Moreover, if, as Amici contend, the General Assembly intended the defense of contributory negligence to apply to actions brought under the Local Government Tort Claims Act (“LGTCA”), despite failing to codify expressly that defense, see Md. Code (1973, 2006 Repl. Vol.), Courts & Judicial Proceedings Article, § 5-303, the Legislature has the authority to amend explicitly the LGTCA to so provide.

Respondent and its Amici express particular concern over the continued vitality of the principles of joint and several liability, and the attendant issue of contribution among joint tortfeasors, in a comparative fault system. I recognize that, following the adoption of a comparative fault system, the continued vitality and fairness of the doctrine of joint and several liability merits specific attention. Indeed, most states adopting comparative negligence have revisited this issue, see, e.g., McIntyre, 833 S.W.2d at 58 (“Having thus adopted a rule more closely linking liability and fault, it would be inconsistent to simultaneously retain a rule, joint and several liability, which may fortuitously impose a degree of liability that is out *732of all proportion to fault.”), although little consensus among states resulted.30 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 *733Proceedings Article, §§ 3-1401-09, and a system of comparative negligence. While the touchstone of a system of comparative negligence is the imposition of liability in direct proportion to one’s fault, the current provisions of the UCATA permit one joint tortfeasor to obtain contribution from another joint tortfeasor if he, she, or it has paid more than his, her, or its “pro rata share.” Id. at § 3-1402. A pro rata share is understood generally, however, as an equal share of the common liability, rather than a share based on an individual’s proportion of fault, and thus may be inconsistent with the foundations of comparative negligence.31 See Hashmi v. Bennett, 416 Md. 707, 719 n. 13, 7 A.3d 1059, 1066 n. 13 (2010) (quoting Lahocki v. Contee Sand & Gravel Co., 41 Md.App. 579, 616, 398 A.2d 490, 511 (1979), rev’d on other grounds sub nom, General Motors Corp. v. Lahocki, 286 Md. 714, 410 A.2d 1039 (1980)). Abiding future legislative action and/or appellate opinions, however, contribution among joint tortfeasors should continue to apply in pro rata shares.

Another potential issue for future resolution is the determination of which parties should be included in the pool of fault — specifically, how uncharged parties and released tortfeasors are treated under a comparative fault scheme in apportioning fault. The UATRA, for example, compares fault only among those individuals or entities that are actual parties to the litigation, 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.

*734Although 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. Sheme Lingerie, Inc., 303 Md. 581, 597, 495 A.2d 348, 356 (1985), and intentional torts. See Tucker v. State, Use of Johnson, 89 Md. 471, 486, 43 A. 778, 783 (1899); State Farm v. Hill, 139 Md.App. 308, 316-18, 775 A.2d 476, 481-82 (2001). Approximately thirty-five states have opted to apply the doctrine of comparative fault to strict liability cases, in additional to negligence actions, although ten do not. See Negligence Systems, supra, at Appendix A, 37-41. Although many states do not endorse the application of comparative fault to intentional torts, see, e.g., Florenzano v. Olson, 387 N.W.2d 168, 176 n. 7 (Minn.1986) (“We ... consider it bad policy to permit an intentional tortfeasor the defense of comparative negligence merely because he or she chooses a gullible or foolish victim.”); Davies v. Butler, 95 Nev. 763, 602 P.2d 605, 611 (1979) (declining to apply comparative fault to intentional acts), some do. See, e.g., Alaska Stat. § 09.17.900 (2012) (including intentional conduct in the definition of fault); Blazovic v. Andrich, 124 N.J. 90, 590 A.2d 222, 231 (1991) (“We are unpersuaded by the decisions of other jurisdictions that reject apportionment of fault in actions involving intentional tortfeasors.”). Consideration of the expansion of comparative fault beyond negligence actions is a bridge too far at this time.

Additionally, this Court should consider eventually (in the proper case) the continued vitality of the ameliorative doctrine of last clear chance. Most states that abrogate contributory negligence by judicial decision abolished contemporaneously the doctrine of last clear chance. See, e.g., Kaatz, 540 P.2d at 1050; Hoffman, 280 So.2d at 438; Alvis, 52 Ill.Dec. 23, 421 N.E.2d at 898. Because the doctrine of last clear chance is designed to mitigate the harsh results of contributory negli*735gence, 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.

*736I acknowledge that adopting a system of pure comparative fault implicates numerous related doctrines and principles in the law of torts, and a decision to do so is not taken lightly. That many questions will result from such a shift is not, however, a justification for retaining the status quo of contributory negligence. I have confidence that our judicial system will not be thrown into disarray, as Respondent and its Amici contend, based on the experience of, at a minimum, the twelve states that adopted judicially comparative negligence. The collateral issues will be handled readily by our Legislature and/or State’s judges until this Court is presented the opportunity to resolve each lingering question.

V. Implementation of Pure Comparative Fault Should Apply Prospectively

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

Selective prospectivity applies generally in cases where we announce a change in the substantive common law, Polakoff, 385 Md. at 488 n. 14, 869 A.2d at 850 n. 14, rather than in cases changing procedural requirements in the trial courts, Owens-Illinois, Inc. v. Zenobia, 325 Md. 420, 470, 601 A.2d 633, 657-58 (1992), or overruling prior cases based on their erroneous interpretation of the law. See Polakoff, 385 Md. at 488, 869 A.2d at 850 (noting that a new interpretation of a statute will apply to “the case before the court and to all cases pending where the issue has been preserved for appellate review”); Houghton v. Cnty. Comm’rs of Kent Cnty., 307 Md. 216, 220, 513 A.2d 291, 293 (1986) (“[T]he question of whether a particular judicial decision should be applied prospectively or *737retroactively, 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 657, the doctrine of comparative fault is not a procedural rule. See Erie Ins. Exchange v. Heffernan, 399 Md. 598, 635, 925 A.2d 636, 658 (2007) (noting that the doctrine of contributory negligence relates to substantive tort law). Thus, because “[ojrdinarily decisions which change the common law apply prospectively, as well as to the litigants before the court,”32 Julian, 320 Md. at 10, 575 A.2d at 739 (citing Williams v. State, 292 Md. 201, 217, 438 A.2d 1301, 1309 (1981)), I would apply the doctrine of comparative negligence to all causes of action accruing subsequent to the filing of this opinion, and to the parties in the present case on remand. See Boblitz, 296 Md. at 275, 462 A.2d at 522.

*738Finally, I would dismiss the writ of certiorari issued in response to the cross-petition filed by the Soccer Association of Columbia, for the same reasons stated for a similar result in the Majority opinion. See Maj. op. at 685 n. 3, 69 A.3d at 1152 n. 3.

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

GREENE, J.,

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

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

We pointed out in Harrison v. Montgomery Cnty. Bd. of Educ., 295 Md. 442, 463, 456 A.2d 894, 905 (1983), that “the contributory negligence principle [is] the valid standard in Maryland negligence cases and that ‘any change in the established doctrine [was for] the Legislature.’.” Majority Opinion, at 685, 69 A.3d at 1152. In support of this conclusion, we acknowledged that the determination of public policy 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 *739General Assembly under the circumstances of this case. To do otherwise, we cast ourselves as a Court attempting to impose our will upon the General Assembly.

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

Because I would prefer a system of comparative negligence is neither the test nor the justification for abandoning contributory negligence and adopting comparative negligence in its place. In this case our duty is to construe or interpret the law. It is not our task to invade the province of the General Assembly and enact into law a sweeping revision of an established rule of law. Here the dissenting opinion advocates for a system of pure comparative negligence. Some might, however, prefer a system of modified comparative negligence because of a belief that a plaintiff who was more than 50% at fault should not be entitled to any recovery. Whether Maryland becomes a pure comparative negligence state or a modified comparative negligence state should not be decided by this Court on the basis of the record before us. The General Assembly, in my view, is best suited to make that determination given the current status of our laws and its ability to conduct a comprehensive study of how the changes in the law *740will affect tort liability and insurance law in Maryland. In addition, as the dissenting opinion concedes, any change of the common law would not affect those statutes in Maryland that have enacted the concept of contributory negligence as a matter of law in some situations. See Dissenting Opinion, at 729-31, 69 A.3d at 1179-80.

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

1. How comparative negligence will apply in cases of multitortfeasors?

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 TortFeasors 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.

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 *481beyond 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.

*482We 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, *483787; 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 tranquillity. 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; Tantillo 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 Ill. 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.

*484There 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.

OPINION OF THE COURT

Meyer, J.

The deposition testimony of plaintiff, a professional baseball player, that he was aware of the wet and muddy condition of the playing field on the night he was injured and of the particular puddle in which he fell, that he had during the game called the attention of the grounds keepers to the fact that there was puddling on the field and had previously commented a couple of times to the baseball club manager when the field was wet, established his awareness of the defect which caused his injury and of the risk involved. His contin*275ued participation in the game in light of that awareness constituted assumption of risk as a matter of law, entitling defendants to summary judgment. There should, therefore, be an affirmance, with costs, of the Appellate Division order.

I

Plaintiff, a member of the New York Yankees team, was injured on June 13, 1975, when he slipped and fell during the ninth inning of a night game with the Chicago White Sox. The game was played at Shea Stadium because Yankee Stadium was then being renovated. Plaintiff testified that he was playing centerfield and was fielding a fly ball hit to right centerfield, that he was running to his left and as he sought to stop running his left foot hit a wet spot and slid, but his right foot stuck in a mud puddle, as a result of which his right knee buckled. The knee injury required three separate surgical procedures and ultimately forced him to retire prematurely from professional baseball.

Plaintiff and his wife (hereafter collectively referred to as plaintiff) sued the city, as owner of Shea Stadium, and the Metropolitan Baseball Club, Inc., as lessee. In a separate action plaintiff sued the general contractor who built Shea Stadium and the architect and the consulting engineer. Both actions charge that the drainage system was negligently designed, constructed or maintained. Claims over by various defendants were made against the maintenance company for Shea Stadium, the New York Yankees and The American League of Professional Baseball Clubs, as employer of the umpires.

After consolidation of the actions and after depositions had been taken, four of the defendants and cross claim defendants moved for summary judgment dismissing the complaints on the ground that plaintiff had assumed the risk. Special Term denied the motions, holding that it could be inferred that plaintiff in continuing to play was acting under his superior’s instructions and that, therefore, there was an issue of fact to be tried. On appeal to the Appellate Division, that court reversed and dismissed both complaints and all claims over. Noting that plaintiff had admitted that the previous night’s game had been canceled because of the weather and poor field conditions, that he had during the game in question observed the centerfield to be "awfully wet” with "some mud” and standing water above the grass line, had reported that condi*276tian to a ground crew member, and had presented no evidence of an order from a superior after making the condition known, it held that there remained no triable issue of fact as to plaintiff’s assumption of the risk.1

Before us, plaintiff argues that he assumed the risks of the game, not of the playing field, which was in an unreasonably dangerous condition, that the risk had in any event been enhanced, that he had no choice but to continue to play, and that the evidence did not establish his subjective awareness that his foot could get stuck in the mud. For the reasons that follow we disagree with that analysis and, therefore, affirm.

II

In Arbegast v Board of Educ. (65 NY2d 161), we noted the common law’s distinction between express and implied assumption of risk and held that, notwithstanding the adoption in 1975 of CPLR 1411, the plaintiff in that case having admitted "that she had been informed both of the risk of injury and that 'the participants were at their own risk’ ” (id., at p 164), her participation in the games there involved constituted an express agreement on her part to assume the risk, entitling defendant to the direction of a verdict (id., at p 162).2 In the instant case we deal not with express assumption of risk, but with assumption of risk to be implied from plaintiff’s continued participation in the game with the knowledge and appreciation of the risk which his deposition testimony spelled out and which established his implied assumption as a matter of law.

Plaintiff suggests that our adoption in Basso v Miller (40 NY2d 233) of the single standard of reasonable care somehow transmogrified assumption of the risk into a defense that cannot be asserted until defendants (who, as movants for summary judgment, bear the burden of establishing prima facie their right to judgment) have established their own exercise of reasonable care. The suggestion finds no support in *277either footnote 2 to the Arbegast decision (at p 166) or in Scaduto v State of New York (56 NY2d 762, affg 86 AD2d 682), to both of which plaintiff refers. The Arbegast footnote cited Basso simply as an illustration of the confusion of assumption of risk with absence of duty in the pre-1975 cases, but made no change in the rule that a defendant seeking summary judgment by way of a complete defense in confession and avoidance, such as assumption of the risk or Statute of Limitations, bears no greater burden than the establishment of the defense. And the Appellate Division’s holding in Scaduto, notwithstanding the two sentences in its memorandum concerning assumption, was that the "State did not breach any duty of care to claimant” (86 AD2d, at p 683), which the records of this court show was the basis for our affirmance, without reaching the assumption issue.

No more helpful to plaintiff is our abandonment in Micallef v Miehle Co. (39 NY2d 376, 382-385) of the patent danger doctrine declared in Campo v Scofield (301 NY 468). In the first place, Campo denied recovery "if the dangerous character of the product can be readily seen, irrespective of whether the injured user or consumer actually perceived the danger” (39 NY2d, at p 384). More importantly, Micallef was based on the greater expertise and superior position of a manufacturer to recognize and cure defects over the user of his product injured by its defect, a consideration which, as the Appellate Division pointed out (108 AD2d, at p 45), can hardly be said to be present in relation to a professional athlete, who is both more highly trained and in a better bargaining position than persons injured by consumer products (see also, Turcotte v Fell, 123 Misc 2d 877). Notwithstanding that this is a pre-1975 case in which we would be at liberty to modify the common-law rules of assumption of the risk, just as Campo’s "open and obvious” rule was modified, we decline to take that step, perceiving no reasonable basis for doing so.

Nor does the case law sustain plaintiff’s efforts to avert dismissal of his action on the basis of assumption of the risk law. The risks of a game which must be played upon a field include the risks involved in the construction of the field, as has been held many times before. That the assumption doctrine "applies to any facet of the activity inherent in it and to any open and obvious condition of the place where it is carried on” (Diderou v Pinecrest Dunes, 34 AD2d 672, 673) is borne out not only by that case but also by Hoffman v Silbert (19 NY2d 661, affg 24 AD2d 493 [window in close proximity to *278ping-pang table]); Luftig v Steinhorn (16 NY2d 568, affg 21 AD2d 760 [hole in a baseball field]); and Lobsenz v Rubinstein (283 NY 600, affg 258 App Div 164 [hole or depression in a tennis court]), cited in Diderou, as well as by Scaduto v State of New York (supra); and Schmerz v Salon (19 NY2d 846, affg 26 AD2d 691), involving, respectively, a drainage ditch near the third base line and a hole in the base path, in both of which assumption of risk was considered although the case was decided on another basis.

There is no question that the doctrine requires not only knowledge of the injury-causing defect but also appreciation of the resultant risk (McEvoy v City of New York, 292 NY 654, affg 266 App Div 445; Larson v Nassau Elec. R. R. Co., 223 NY 14), but awareness of risk is not to be determined in a vacuum. It is, rather, to be assessed against the background of the skill and experience of the particular plaintiff (Dillard v Little League Baseball, 55 AD2d 477, 480), and in that assessment a higher degree of awareness will be imputed to a professional than to one with less than professional experience in the particular sport (see, Heldman v Uniroyal, Inc., 53 Ohio App 2d 21, 36, 371 NE2d 557, 567; Turcotte v Fell, supra). In that context plaintiffs effort to separate the wetness of the field, which he testified was above the grass line, from the mud beneath it in which his foot became lodged must be rejected for not only was he aware that there was "some mud” in the centerfield area, but also it is a matter of common experience that water of sufficient depth to cover grass may result in the earth beneath being turned to mud (Benjamin v Deffet Rentals, 66 Ohio St 2d 86, 91, 419 NE2d 883, 887, holding denial of summary judgment improper because "[i]t is common knowledge, however, that such a [plastic diving board] surface can be slippery, especially when it becomes wet”; Restatement [Second] of Torts § 496D comment d; Prosser and Keeton, Torts § 68, at 488 [5th ed]). We do not deal here, as we did in Schmerz v Salon (supra), with a hole in the playing field hidden by grass, but with water, indicative of the presence of mud, the danger of which plaintiff was sufficiently aware to complain to the grounds keepers. It is not necessary to the application of assumption of risk that the injured plaintiff have foreseen the exact manner in which his or her injury occurred, so long as he or she is aware of the potential for injury of the mechanism from which the injury results. Nor do the enhancement cases to which plaintiff refers in arguing that the risk of water on the field was enhanced by *279the failure to install proper drainage facilities (Stevens v Central School Dist. No. 1, 21 NY2d 780, affg 25 AD2d 871; Cole v New York Racing Assn., 17 NY2d 761, affg 24 AD2d 993; Jackson v Livingston Country Club, 55 AD2d 1045; Arnold v Schmeiser, 34 AD2d 568; see, Hornstein v State of New York, 30 AD2d 1012) avail plaintiff, for in each of those cases the enhanced risk that resulted was unknown to the particular plaintiff, whereas here the resulting risk (mud) was evident to plaintiff as is shown by his observation of mud and water and his complaints to the grounds keepers concerning the presence of water to the grass line.

Finally, although the assumption of risk to be implied from participation in a sport with awareness of the risk is generally a question of fact for a jury (Stevens v Central School Dist. No. 1, supra; Jackson v Livingston Country Club, supra), dismissal of a complaint as a matter of law is warranted when on the evidentiary materials before the court no fact issue remains for decision by the trier of fact (Hoffman v Silbert, 19 NY2d 661, supra; Luftig v Steinhorn, 16 NY2d 568, supra; Lobsenz v Rubinstein, 283 NY 600, supra; Dillard v Little League Baseball, 55 AD2d 477, supra; Maltz v Board of Educ., 282 App Div 888, affg 32 Misc 2d 492; Benjamin v Deffet Rentals, supra). We are satisfied that this is such a case for, on the basis of those parts of plaintiff’s deposition above set forth, the defense of assumption of risk was clearly established, and plaintiff has not, as it was his burden to do (Zuckerman v City of New York, 49 NY2d 557, 562) brought himself within the rule of cases such as Broderick v Cauldwell-Wingate Co. (301 NY 182) by presenting evidence in admissible form that he had no choice in the matter but to obey a superior’s direction to continue notwithstanding the danger. Indeed, nothing in plaintiff’s affidavit or in so much of his deposition as is contained in the record suggests that he acted under such an order or compulsion, nor can we agree, notwithstanding the dictum in Porter v Avlis Contr. Corp. (57 AD2d 222, 225)3 or the irascibility of some baseball owners or managers, that we should infer that such an order had been given or that plaintiff acted under the compulsion of an unspoken order.

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

*280Chief Judge Wachtler and Judges Jasen, Simons, Kaye and Alexander concur; Judge Titone taking no part.

Order affirmed, with costs.

Melton, Justice.

In The Landings Association, Inc. v. Williams, 309 Ga. App. 321 (711 SE2d 294) (2011), the Court of Appeals held that the trial court properly denied in part motions for summary judgment brought by The Landings Association, Inc. and The Landings Club, Inc., finding that a question of fact remained as to whether The Landings entities failed, pursuant to the law of premises liability, to take reasonable steps to protect Gwyneth Williams from being attacked and killed by an alligator in the planned residential community and golf club owned and/or managed by The Landings entities.1 We granted certiorari to determine whether the Court of Appeals erred in reaching this conclusion. Because the record shows that Williams had equal knowledge of the threat of alligators within the community, we reverse.

As is relevant to our holding, the facts, in the light most favorable to Williams, show that, at the time of the alligator attack, Williams was house-sitting for her daughter and son-in-law at The Landings, a planned residential development with a golf course located on Skidaway Island off the Georgia coast. Before The Landings was developed, the land within and surrounding its boundaries was largely marsh, where indigenous alligators lived and thrived. In order to develop the property, The Landings entities installed a lagoon system which allowed enough drainage to create an area suitable for a residential development. After the project was completed in the 1970s, the indigenous alligators subsequently began to move in and out of The Landings through its lagoon systems.

Although alligators inhabited the area of The Landings before and after its establishment, no person had ever been attacked until the night of October 5, 2007, when Williams, who was 83 at the time, *398went for a walk near one of the lagoons near her daughter’s home some time after 6:00 p.m. The following morning, Williams’ body was found floating in the lagoon.2 Williams’ right foot and both forearms had been bitten off. Later, an eight-foot alligator was caught in the same lagoon, and, after the alligator was killed, parts of Williams’ body were found in its stomach.

The record shows that, prior to the attack, Williams was aware that the property was inhabited by alligators. Williams’ son-in-law testified that, on at least one occasion, he was driving with Williams on property in The Landings when he stopped the car to allow Williams to look at an alligator. Williams’ son-in-law also testified that Williams was, in fact, aware that there were alligators in the lagoons at The Landings and that he believed that Williams had a “normal” respect for wild animals. When asked whether he had ever discussed how to behave around wild alligators with Williams, her son-in-law responded: “No. There was never — quite frankly, there was never any reason to. I mean she was an intelligent person. She would — there was no question in my mind that — I guess I have to answer that as it’s not like talking to a five year old child... stay away from alligators.” In addition, Williams’ son recalled a similar instance when he stopped the car to allow his mother to look at an alligator. At that time Williams mentioned that she did not like alligators and did not want to go anywhere near them.

Generally, in premises liability cases,

[a]fter [Robinson v. Kroger Co., 268 Ga. 735 (493 SE2d 403) (1997)], to survive a motion for summary judgment, a plaintiff must come forward with evidence that, viewed in the most favorable light, would enable a rational trier of fact to find that the defendant had actual or constructive knowledge of the hazard. At that point, the burden of production shifts to the defendant to produce evidence that the plaintiff’s injury was caused by his or her own voluntary negligence (intentional disregard of a known risk) or causal negligence (failure to exercise ordinary care for one’s personal safety). If the defendant succeeds in doing so, the burden of production shifts back to the plaintiff to come forward with evidence that creates a genuine dispute of fact on the question of voluntary or causal negligence by the plaintiff or tends to show that any such negligence resulted *399from the defendant’s own actions or conditions under the defendant’s control. [Id. at 746-749.]

(Footnote omitted.) American Multi-Cinema, Inc. v. Brown, 285 Ga. 442, 444-445 (2) (679 SE2d 25) (2009). See also OCGA§ 51-3-1.

Furthermore, it must be remembered that

“ '[t]he true ground of liability is the proprietor’s superior knowledge of the perilous instrumentality and the danger therefrom to persons going upon the property. It is when the perilous instrumentality is known to the owner or occupant and not known to the person injured that a recovery is permitted.’ [Cits.] One who is familiar with the premises cannot rely for recovery upon the negligence of the defendant in failing to correct a patent defect where such party had equal means with the defendant of discovering it or equal knowledge of its existence.” [Cits.] [McKnight v. Guffin, 118 Ga. App. 168, 169 (162 SE2d 743) (1968).]

Atlanta Gas Light Co. v. Gresham, 260 Ga. 391, 392 (3) (394 SE2d 345) (1990). However, “ '[t]he trial court can conclude as a matter of law that the facts do or do not show negligence on the part of the defendant or the plaintiff only where the evidence is plain, palpable and undisputable. (Cit.)’ [Cits.]” Robinson, supra, 268 Ga. at 739 (1).

In this case, testimony shows that Williams was aware that wild alligators were present around The Landings and in the lagoons. Therefore, she had knowledge equal to The Landings entities about the presence of alligators in the community. In addition, the record shows that Williams knew that the wild alligators were dangerous, saying herself that she would not want to be anywhere near them. Nonetheless, Williams chose to go for a walk at night near a lagoon in a community in which she knew wild alligators were present. This act indisputably shows that Williams either knowingly assumed the risks of walking in areas inhabited by wild alligators or failed to exercise ordinary care by doing so. Under these circumstances, the trial court should have granted the motions for summary judgment brought by the Landings entities regarding Williams’ premises liability claims.

The dissent, like the Court of Appeals, attempts to avoid this conclusion by arguing that summary judgment for The Landings is precluded because there is no “competent evidence that the decedent knew there were alligators over seven feet in size living in the community or living in the lagoon in which [Williams’] body was found.” While there is no doubt that Williams’ death was a tragic *400event, Williams was not incompetent. A reasonable adult who is not disabled understands that small alligators have large parents and are capable of moving from one lagoon to another, and such an adult, therefore, assumes the risk of an alligator attack when, knowing that wild alligators are present in a community, walks near a lagoon in that community after dark.

Judgment reversed.

All the Justices concur, except Corley, C. J., Hunstein, P. J., and Benham, J., who dissent.

Benham, Justice,

dissenting.

I write because I respectfully disagree with the majority’s opinion reversing the decision of the Court of Appeals to allow this premises liability case to go to a jury. The majority reasons that appellees’ claims cannot survive summary judgment because the decedent had equal knowledge, as compared to appellants, that there were alligators in and around The Landings community. Premises liability cases, however, cannot be resolved on summary judgment unless “the evidence is plain, palpable, and undisputed.” American Multi-Cinema, Inc. v. Brown, 285 Ga. 442 (2) (679 SE2d 25) (2009) (quoting Robinson v. Kroger Co., 268 Ga. 735, 748 (493 SE2d 403) (1997)). In this case, the Court of Appeals was correct when it affirmed the trial court’s denial of summary judgment to appellants because the evidence was not plain, palpable, and undisputed.

Notably absent from the majority’s opinion are facts which, if construed in appellees’ favor, require the denial of appellants’ motions for summary judgment. For example, the Landings Association had an advertised policy that it removed from the 151 lagoons in the community alligators which were seven feet long or larger and/or alligators which were aggressive toward humans or pets;3 the appellants did not patrol or inspect the lagoons in order to remove large or aggressive alligators according to its policy, but rather relied on residents and employees to report said animals; and appellants did not post signs near the lagoons warning guests about alligators. See The Landings Association, Inc. v. Williams, 309 Ga.App. 321, 322-324 (711 SE2d 294) (2011). An expert opined that the over eight foot long, 130 pound alligator that attacked the decedent had likely been in the lagoon where the decedent’s body was found for some time because such mature alligators tend to be territorial and nest. There was also evidence in the record that the decedent called for help during the attack, but that appellants’ security forces, which were not trained in *401dealing with alligators, responded to the wrong location and then stopped investigating, assuming that the sounds in question were bird calls. While there was some testimony that the decedent had seen at least one alligator standing on the side of the road in The Landings, the Court of Appeals concluded in its de novo review that there was no “competent evidence” that the decedent knew there were alligators over seven feet in size living in the community or living in the lagoon in which her body was found. Id. at 323-324.

[I]ssues of negligence, contributory negligence and lack of care for one’s own safety are not susceptible of summary adjudication . . . but should be resolved by trial in the ordinary manner. [Cit.] . . . Where reasonable minds can differ as to the conclusion to be reached with regard to questions of whether an owner/occupier breached the duty of care to invitees and whether an invitee exercised reasonable care for personal safety, summary adjudication is not appropriate. [Cit.]

Robinson v. Kroger Co., supra, 268 Ga. at 739-740. Based on the facts presented at the time of summary judgment in this case, reasonable minds could differ as to the essential elements of appellees’ premises liability claim. Indeed, there are very specific questions in this case that must go to a jury: whether decedent knew that large and aggressive alligators were living on the premises and in the lagoon in which her body was discovered;4 and whether appellants exercised reasonable care in inspecting and keeping the premises safe from alligators — in particular, alligators that were over seven feet long and alligators that were aggressive toward humans and pets as per appellants’ removal policy. Rather than allowing this evidence to be reviewed by a factfinder, the majority opinion bars appellees’ premises liability claim simply because the decedent once observed an alligator standing on the roadside. Such a result disregards all the other factual circumstances in the case and is not in keeping with our jurisprudence. See id. at 740 (“all the circumstances at the time and place of the incident” must be considered). Accordingly, I would affirm the judgment of the Court of Appeals and allow the premises liability claim to be tried before a jury.

*402Decided June 18, 2012

Reconsideration denied July 26, 2012.

Barrow & Ballew, Walter W. Ballew III, for The Landings Association, Inc.

Savage & Turner, Robert B. Turner, Kathryn H. Pinckney, Hasty, Pope & Ball, Marion T. Pope, Jr., Franklin, Taulbee, Rushing, Snipes & Marsh, Daniel B. Snipes, Gilbert, Harrell, Sumerford & Martin, Mark D. Johnson, David M. Conner, for Williams et al.

Forbes, Foster & Pool, Morton G. Forbes, Johnny A. Foster, for The Landings Club, Inc.

McNamee, Lochner, Titus & Williams, Glen K. Williams, amicus curiae.

I am authorized to state that Chief Justice Carley and Presiding Justice Hunstein join in this dissent.

*330Johnson, J.

We reverse the trial court’s grant of summary judgment for defendants S-K-I, Ltd. and Killington, Ltd. in a case involving an injury to a skier at a resort operated by defendants. We hold that the exculpatory agreements which defendants require skiers to sign, releasing defendants from all liability resulting from negligence, are void as contrary to public policy.

While skiing at Killington Ski Area, plaintiff Robert Dalury sustained serious injuries when he collided with a metal pole that formed part of the control maze for a ski lift line. Before the season started, Dalury had purchased a midweek season pass and signed a form releasing the ski area from liability. The relevant portion reads:

RELEASE. FROM LIABILITY AND CONDITIONS OF USE

1. I accept and understand that Alpine Skiing is a hazardous sport with many dangers and risks and that injuries are a common and ordinary occurrence of the sport. As a condition of being permitted to use the ski area premises, I freely accept and voluntarily assume the risks of injury or property damage and release Killington Ltd., its employees and agents from any and all liability for personal injury or property damage resulting from negligence, conditions of the premises, operations of the ski area, actions.or omissions of employees or agents of the ski area or from my participation in skiing at the area, accepting myself the full responsibility for any and all such damage or injury of any kind which may result.

Plaintiff also signed a photo identification card that contained this same language.

Dalury and his wife filed a complaint against defendants, alleging negligent design, construction, and replacement of the maze pole. 'Defendants moved for summary judgment, arguing that the release of liability barred the negligence action. The trial court, without, specifically addressing plaintiffs’ contention that the release was contrary to public policy, found that the language of the release clearly absolved defendants of liability for their own negligence.

The trial court based its decision on Douglass v. Skiing Standards, Inc., 142 Vt. 634, 637, 459 A.2d 97, 99 (1983), in which we held that an exculpatory agreement was sufficient to bar a negligence action by a professional freestyle skier who was injured in a skiing competition, and two subsequent decisions of the United States District Court for *331the District of Vermont. See Estate of Getter v. Mount Snow Ltd., No. 89-66, slip op. at 5-6 (D. Vt. May 21, 1991) (summary judgment granted where plaintiff recreational skier signed release on back of ski pass); Barenthein v. Killington Ltd., No. 86-33, slip op. at 7 (D. Vt. June 17, 1987) (summary judgment granted where plaintiff signed equipment rental agreement which contained a release). The trial court did not view the distinction between professional and recreational skiing as significant, and granted summary judgment on the ground that the release was clear and unambiguous.

On appeal, plaintiffs contend that the release was ambiguous as to whose liability was waived and that it is unenforceable as a matter of law because it violates public policy. We agree with defendants that the release was quite clear in its terms. Because we hold the agreement is unenforceable, we proceed to a discussion of the public policy that supports our holding.

I.

This is a case of first impression in Vermont.1 While we have recognized the existence of a public policy exception to the validity of exculpatory agreements, see Lamoille Grain Co. v. St. Johnsbury & L.C.R.R., 135 Vt. 5, 7, 369 A.2d 1389, 1390 (1976) (public policy forbids a railroad from limiting its duty of care to the public, but this rule does not extend to the railroad’s private contractual undertakings), in most of our cases, enforceability has turned on whether the language of the agreement was sufficiently clear to reflect the parties’ intent. See Fairchild Square Co. v. Green Mountain Bagel Bakery, Inc., 163 Vt. 433, 437-38, 658 A.2d 31, 33-34 (1995) (lease clearly contemplated landlord’s purchase of fire insurance, releasing tenant from liability for negligence); Colgan v. Agway, Inc., 150 Vt. 373, 376-78, 553 A.2d 143, 146 (1988) (broad exculpatory language at end of limited warranty clause insufficient to release defendant for negligent design); Douglass, 142 Vt. at 637, 459 A.2d at 99 (agreement in entirety sufficiently clear to show experienced, professional freestyle skier intended to hold ski area harmless); Lamoille Grain Co., 135 Vt. at 8, 369 A.2d at 1390 (language of contract sufficiently clear to show parties’ intent to hold railroad harmless for its own negligence).

*332Even well-drafted exculpatory agreements, however, may be void because they violate public policy. Restatement (Second) of Torts § 496B comment e (1965). According to the Restatement, an exculpatory agreement should be upheld if it is (1) freely and fairly made, (2) between parties who are in an equal bargaining position, and (3) there is no social interest with which it interferes. § 496B comment b. The critical issue here concerns the social interests that are affected.

Courts and commentators have struggled to develop a useful formula for analyzing the public policy issue. The formula has been the “subject of great debate” during “the whole course of the common law,” and it had proven impossible to articulate a precise definition because the “social forces that have led to such characterization are volatile and dynamic.” Tunkl v. Regents of Univ. of Cal., 383 P.2d 441, 444 (Cal. 1963).

The leading judicial formula for determining whether an exculpatory agreement violates public policy was set forth by Justice Tobriner of the California Supreme Court. Id. at 444-46. An agreement is invalid if it exhibits some or all of the following characteristics:

[1.] It concerns a business of a type generally thought suitable for public regulation. [2.] The party seeking exculpation is engaged in performing a service of great importance to the public, which is often a matter of practical necessity for sorpe members of the public. [3.] The party holds [itjself out as willing to perform this service for any member of the public who seeks it, or at least for any member coming within certain established standards. [4.] As a result of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks [the party’s] services. [5.] In exercising a superior bargaining power the party confronts the public with a standardized adhesion contract of exculpation, and makes no provision whereby a purchaser may pay additional reasonable fees and obtain protection against negligence. [6.] Finally, as a result of the transaction, the person or property of the purchaser is placed under the control of the seller, subject to the risk of carelessness by the seller or [the seller’s] agents.

Id. at 445-46 (footnotes omitted). Applying these factors, the court concluded that a release from liability for future negligence imposed *333as a condition for admission to a charitable research hospital was invalid. Id. at 449. Numerous courts have adopted and applied the Tunkl factors. See Wagenblast v. Odessa Sch. Dist. No. 105-157-166J, 758 P.2d 968, 971-73 (Wash. 1988) (release for school district’s interscholastic athletics violated public policy); Kyriazis v. University of W. Va., 450 S.E.2d 649, 654-55 (W. Va. 1994) (release for state university-sponsored club rugby was invalid because “[w]hen a state university provides recreational activities to its students, it fulfills its educational mission, and performs a public service”).

Other courts have incorporated the Tunkl factors into their decisions. The Colorado Supreme Court has developed a four-part inquiry to analyze the validity of exculpatory agreements: (1) existence of a duty to the public, (2) the nature of the service performed, (3) whether the contract was fairly entered into, and (4) whether the intention of the parties is expressed in clear and unambiguous language. Jones v. Dressel, 623 P.2d 370, 376 (Colo. 1981). In the Jones case, the court concluded, based on the Tunkl factors, that no duty to the public was involved in air service for a parachute jump, because that sort of service does not affect the public interest. Id. at 376-77. Using a similar formula, the Wyoming Supreme Court concluded that a ski resort’s sponsorship of an Ironman Decathlon competition did not invoke the public interest. Milligan v. Big Valley Corp., 754 P.2d 1063, 1066-67 (Wyo. 1988).

On the other hand, the Virginia Supreme Court recently concluded, in the context of a “Teflon Man Triathlon” competition, that a preinjury release from liability for negligence is void as against public policy because it is simply wrong to put one party to a contract at the mercy of the other’s negligence. Hiett v. Lake Barcroft Community Ass’n, 418 S.E.2d 894, 897 (Va. 1992). The court stated: “‘[T]o hold that it was competent for one party to put the other parties to the contract at the mercy of its own misconduct. . . can never be lawfully done where an enlightened system of jurisprudence prevails. Fublic policy forbids it, and contracts against public policy are void.’” Id. at 896 (quoting Johnson’s Adm’x v. Richmond & Danville R.R., 11 S.E. 829, 829 (Va. 1890)).

Having reviewed these various formulations of the public policy exception, we accept them as relevant considerations, but not as rigid factors that, if met, preclude further analysis. Instead, we recognize that no single formula will reach the relevant public policy issues in every factual context. Like the court in Wolf v. Ford, 644 A.2d 522, 527 (Md. 1994), we conclude that ultimately the “determination of what *334constitutes the public interest must be made considering the totality of the circumstances of any given case against the backdrop of current societal expectations.”

II.

Defendants urge us to uphold the exculpatory agreement on the ground that ski resorts do not provide an essential public service. They argue that they owe no duty to plaintiff to permit him to use their private lands for skiing, and that the terms and conditions of entry ought to be left entirely within their control. Because skiing, like other recreational sports, is not a necessity of life, defendants contend that the sale of a lift ticket is a purely private matter, implicating no public interest. See, e.g., Milligan, 754 P.2d at 1066 (“Generally, a private recreational business does not qualify as a service demanding a special duty to the public, nor are its services of a special, highly necessary or essential nature.”). We disagree.

Whether or not defendants provide an essential public service does not resolve the public policy question in the recreational sports context. The defendants’ area is a facility open to the public. They advertise and invite skiers and nonskiers of every level of skiing ability to their premises for the price of a ticket. At oral argument, defendants conceded that thousands of people buy lift tickets every day throughout the season. Thousands of people ride lifts, buy services, and ski the trails. Each ticket sale may be, for some purposes, a purely private transaction. But when a substantial number of such sales take place as a result of the seller’s general invitation to the public to utilize the facilities and services in question, a legitimate public interest arises.

The major public policy implications are those underlying the law of premises liability. In Vermont, a business owner has a duty “of active care to make sure that its premises are in safe and suitable condition for its customers.” Debus v. Grand Union Stores, 159 Vt. 537, 546, 621 A.2d 1288, 1294 (1993). We have recognized this duty of care where the defendant’s routine business practice creates a foreseeable hazard for its customers. Id.; see also Forcier v. Grand Union Stores, Inc., 128 Vt. 389, 394, 264 A.2d 796, 799 (1970) (self-service fruit and vegetable display created foreseeable hazard to business invitees). The business invitee “ha[s] a right to assume that the premises, aside from obvious dangers, [are] reasonably safe for the purpose for which he [is] upon them, and that proper precaution [has] been taken to *335make them so.” Garafano v. Neshobe Beach Club, 126 Vt. 566, 572, 238 A.2d 70, 75 (1967). We have already held that a ski area owes its customers the same duty as any other business — to keep its premises reasonably safe. Stearns v. Sugarbush Valley Corp., 130 Vt. 472, 474, 296 A.2d 220, 222 (1972).

The policy rationale is to place responsibility for maintenance of the land on those who own or control it, with the ultimate goal of keeping accidents to the minimum level possible. Defendants, not recreational skiers, have the expertise and opportunity to foresee and control hazards, and to guard against the negligence of their agents and employees. They alone can properly maintain and inspect their premises, and train their employees in risk management. They alone can insure against risks and effectively spread the cost of insurance among their thousands of customers. Skiers, on the other hand, are not in a position to discover and correct risks of harm, and they cannot insure against the ski area’s negligence.

If defendants were permitted to obtain broad waivers of their liability, an important incentive for ski areas to manage risk would be removed, with the public bearing the cost of the resulting injuries. See Tunkl, 383 P.2d at 446-47; Frosser and Keeton on the Law of Torts § 68, at 482 (5th ed. 1984). It is illogical, in these circumstances, to undermine the public policy underlying business invitee law and allow skiers to bear risks they have no ability or right to control.

For these reasons, we disagree with the decisions of the United States District Court for the District of Vermont, upholding exculpatory agreements similar to the one at issue here. We do not accept the proposition that because ski resorts do not provide an essential public service, such agreements do not affect the public interest. Szczotka v. Snowridge, Inc., No. CIV. 5:93-370, 1994 WL 674015, at *2 (D. Vt. 1994); Barenthein, slip op. at 6. A recognition of the principles underlying the duty to business invitees makes clear the inadequacy of relying upon the essential public service factor in the analysis of public recreation cases. While interference with an essential public service surely affects the public interest, those services do not represent the universe of activities that implicate public concerns.

Moreover, reliance on the private nature of defendants’ property would be inconsistent with societal expectations about privately owned facilities that are open to the general public. Indeed, when a facility becomes a place of public accommodation, it “render[s] a ‘service which has become of public interest’ in the manner of the innkeepers and common carriers of old.” Lombard v. Louisiana, 373 *336U.S. 267, 279 (1963) (Douglas, J., concurring) (citation omitted) (quoting German Alliance Ins. v. Kansas, 233 U.S. 389, 408 (1914)). Defendants are not completely unfettered, as they argue, in their ability to set the terms and conditions of admission. Defendants’ facility may be privately owned, but that characteristic no longer overcomes a myriad of legitimate public interests. Public accommodations laws that prohibit discrimination against potential users of the facility are just one example of limitations imposed by law that affect the terms and conditions of entry. See 9 V.S.A. § 4502 (prohibiting discrimination in place of public accommodation).

Defendants argue that the public policy of the state, as expressed in the “Acceptance of inherent risks” statute, 12 V.S.A. 1037,2 indicates a willingness on the part of the Legislature to limit ski area liability. Therefore, they contend that public policy favors the use of express releases such as the one signed by plaintiff. On the contrary, defendants’ allocation of responsibility for skiers’ injuries is at odds with the statute. The statute places responsibility for the “inherent risks” of any sport on the participant, insofar as such risks are obvious and necessary. Id. A ski area’s own negligence, however, is neither an inherent risk nor an obvious and necessary one in the sport of skiing. Thus, a skier’s assumption of the inherent risks of skiing does not abrogate the ski area’s duty “‘to warn of or correct dangers which in the exercise of reasonable prudence in the circumstances could have been foreseen and corrected.’” Estate of Frant v. Haystack Group, Inc., 162 Vt. 11, 18, 641 A.2d 765, 769 (1994) (quoting Dillworth v. Gambardella, 970 F.2d 1113, 1119 (2d Cir. 1992)).

Reversed and remanded.