author: MR. JUSTICE MORAN MR. JUSTICE UNDERWOOD, MR. JUSTICE RYAN, MR. JUSTICE RYAN,

text:
    (Nos. 52875, 53788 cons.
    JAMES ALVIS, Appellant, v. JAMES RIBAR et al., Appellees. — KARIN KROHN, Adm’r, Appellant, v. ABBOTT LABORATORIES, INC., et al., Appellees.

      Opinion filed April 17, 1981.

    — Modified on denial of rehearing June 4, 1981.

      John Bernard Cashion, of Chicago, for appellant.
    Clausen, Miller, Gorman, Caffrey & Witous, P.C., of Chicago (James T. Ferrini, William J. Oberts, and David P. Cutler, of counsel), for appellee Milbum Brothers, Inc.
    Baker & McKenzie, of Chicago (Francis D. Morrissey and Edward J. Zulkey, of counsel), for amicus curiae Illinois Defense Counsel.
    Jacobs, Williams & Montgomery, Ltd., of Chicago (Barry L. Kroll and Wyatt Jacobs, of counsel), amicus curiae.

    David A. Decker, of May, Decker & Associates, Ltd., of Waukegan, for appellant.
    James J. DeSanto, of Rawles, Katz, DeSanto 8c McKeown, Ltd., of Waukegan, for appellees.
    Baker & McKenzie, of Chicago (Francis D. Morrissey and Edward J. Zulkey, of counsel), for amicus curiae Illinois Defense Counsel.
    Jacobs, Williams 8c Montgomery, Ltd., of Chicago (Barry L. ICroll and Wyatt Jacobs, of counsel), amicus curiae.

   MR. JUSTICE MORAN

delivered the opinion of the court:

These two cases, consolidated for appeal, present a question which arises solely from the pleadings. In each, plaintiff’s complaint included a count based on the doctrine of comparative negligence, which count was dismissed by the trial court on motion by the defendants. In Alvis v. Ribar, the appellate court affirmed summarily, stating, “*** it is not for this court to attempt to reverse the many cases and opinions of the Illinois Supreme Court in this area.” (78 Ill. App. 3d 1117, 1119.) This court allowed leave to appeal. In Krohn v. Abbott Laboratories, Inc., we granted a motion for direct appeal under Rule 302(b) (73 Ill. 2d 302(b)).

Plaintiffs ask this court to abolish the doctrine of contributory negligence and to adopt in its place the doctrine of comparative negligence as the law in Illinois.

In Alvis v. Ribar, a motor vehicle operated by defendant Ribar skidded out of control and collided with a metal barrel which anchored an official intersection stop sign. The sign had been temporarily placed at the intersection while construction work on the intersecting road was being done by the defendant contractor, Milburn Brothers, Inc., under the supervision of defendant Cook County. Plaintiff Alvis, who was a passenger in defendant Ribar’s vehicle, sustained injuries as a result of the collision. He filed a multicount personal injury complaint seeking damages from all three defendants.

In Krohn v. Abbott Laboratories, Inc., a tractor trailer operated by defendant Sweetwood and owned by defendant Abbott Laboratories, Inc., was traveling west when it collided with an eastbound vehicle operated by decedent, Klaus D. Krohn. The collision occurred in the eastbound lane. As a result of the collision, Klaus D. Krohn sustained fatal injuries. Plaintiff, Karin D. Krohn, as administrator of the estate of Klaus D. Krohn, brought a wrongful death action in the circuit court of Lake County against both defendants.

I

THE HISTORY OF CONTRIBUTORY NEGLIGENCE

Generally, under the doctrine of contributory negligence, a plaintiff is barred from recovering compensation for his injuries if his negligence contributed to the accident. The origin of the doctrine can be traced to the case of Butterfield v. Forrester (1809), 11 East 60, 103 Eng. Rep. 926. There defendant had placed a pole across part of a public road. Plaintiff, riding his horse too fast to see the obstruction, rode into the pole and was injured. The concept of contributory negligence was created by the words of Chief Justice Lord Ellenborough:

“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.” Butterfield v. Forrester (1809), 11 East 60, 61, 103 Eng. Rep. 926, 927.

The doctrine was swiftly adopted in American jurisprudence, commencing with the case of Smith v. Smith (1824), 19 Mass. (2 Pick.) 621, 13 Am. Dec. 464. (See H. Woods, The Negligence Case: Comparative Fault 7 (1978); Turk, Comparative Negligence on the March, 28 Chi.-Kent L. Rev. 189, 198 (1950).) Legal scholars attribute the swift and universal acceptance of the doctrine to newly formed industry’s need for protection “against the ravages which might have been wrought by over-sympathetic juries.” (Turk, Comparative Negligence on the March, 28 Chi.-Kent L. Rev. 189, 201 (1950); H. Woods, The Negligence Case: Comparative Fault 8 (1978). Also see Scott v. Rizzo (1981), 96 N.M. 682, 685, 634 P.2d 1234, 1237; Hoffman v. Jones (Fla. 1973), 280 So. 2d 431, 437.) Judicial concern was particularly evident in the area of personal injury suits brought by railroad employees against the railroads. The courts realized that, in the pervading public view that saw railroads as “harmful entities with deep pockets” (H. Woods, The Negligence Case: Comparative Fault 9 (1978)), juries’ sympathies toward plaintiffs could wreak financial disaster upon the burgeoning industry.

Case law developed the doctrine of contributory negligence in Illinois. In Aurora Branch R.R. Co. v. Grimes (1852), 13 Ill. 585, 587-88, this court followed the Butter-field case and added the requirement that the burden of proof is upon the plaintiff to show not only negligence on the part of the defendant, but also that plaintiff himself exercised proper care and circumspection. In the next few years the decisions involving “last clear chance” (Moore v. Moss (1852), 14 Ill. 106, 110 (later discussed)), degrees of negligence (Chicago & Mississippi R.R. Co. v. Patchin (1854), 16 Ill. 198, 203), and proximate cause (Joliet & Northern Indiana R.R. Co. v. Jones (1858), 20 Ill. 221, 227) created confusion. Mr. Justice Breese reviewed these decisions in Galena & Chicago Union R.R. Co. v. Jacobs (1858), 20 Ill. 478, a case which involved a 414-year-old boy who had been run over by a railroad locomotive. There the court ultimately disagreed with the Butterfield holding and adopted a form of comparative negligence in its place.

“This, and all the cases subsequent, to which we have referred, have one common basis, and that is found in the old law maxim that ‘no man shall take advantage of his own wrong or negligence’ in his prosecution or defense against another.” (Galena & Chicago Union R.R. Co. v. Jacobs (1858), 20 Ill. 478, 490-91.)

The court concluded that liability does not depend absolutely on the absence of all negligence on the part of the plaintiff but upon the relative degrees of care or want of care manifested by both parties.

“ [A] 11 care or negligence is at best but relative, the absence of the highest possible degree of care showing the presence of some negligence, slight as it may be. The true doctrine, therefore, we think is, that in proportion to the negligence of the defendant, should be measured the degree of care required of the plaintiff — -that is to say, the more gross the negligence manifested by the defendant, the less degree of care will be required of the plaintiff to enable him to recover. Although these cases do not distinctly avow this doctrine in terms, there is a vein of it very perceptible, running through very many of them, as, where there are faults on both sides, the plaintiff shall recover, his fault being to be measured by the defendant’s negligence, the plaintiff need not be wholly without fault ***.
We say, then, that in this, as in all like cases, the degrees of negligence must be measured and considered, and wherever it shall appear that the plaintiff’s negligence is comparatively slight, and that of the defendant gross, he shall not be deprived of his action.” (Galena & Chicago Union R.R. Co. v. Jacobs (1858), 20 Ill. 478, 497.)

Thus, in 1858, Illinois became a State which followed the doctrine of comparative negligence.

In 1870, in the case of Illinois Central R.R. Co. v. Baches (1870), 55 Ill. 379, 389-90, the court held:

“The seventh of appellee’s instructions is not accurate, as it nowhere limits or defines the duty of deceased. Under this instruction, the jury were required to find for the plaintiff, although deceased might have been guilty of negligence equal to that of appellants. Such has never been recognized as the rule of law in this class of cases. *** [W] e are not inclined to extend the rule, as there is no warrant in the common law for allowing the plaintiff any greater latitude. He should use prudence and care, but failing to do so, and is guilty of negligence, he can not recover, unless the negligence of the defendant clearly and largely exceeds his. This instruction should have been refused, or modified so as to announce the rule of comparative negligence before it was given.”

In the case of Illinois Central R.R. Co. v. Hammer (1874), 72 Ill. 347, 351, the court attempted to clarify the definition of comparative negligence. “The rule on this subject, it may be, has not at all times been accurately stated by this court. By inadvertence, it has been loosely and indefinitely stated in some of the cases, but what the court has held, and still holds, is, that a plaintiff free from all negligence may recover from a defendant who has failed to use such care as ordinarily prudent men generally employ; or, a plaintiff who is even guilty of slight negligence may recover of a defendant who has been grossly negligent, or whose conduct has been wanton or wilful. Hence the doctrine of comparative negligence.”

In 1878, in the case of Indianapolis & St. Louis R.R. Co. v. Evans (1878), 88 Ill. 63, 65, the court adhered to the principles of Baches.

“ Tt is the duty of a railroad company to take all reasonable precaution for the protection of life and limb from injuries by their cars; and if such precautions are not taken, a person injured in consequence thereof *** has a just cause of complaint, and is entitled to recover damages for any injury sustained by reason of the omission of the company to adopt all reasonable guards against liability to injury, unless such injury is caused by the negligence of the party injured equal to or greater than that of the party committing the injury.’
This seventh instruction, in substance, says, that plaintiff’s action can not be defeated by his own negligence, unless such negligence be at least equal to that of defendant. This is not the law. The true rule on this subject is laid down in Illinois Central Railroad Co. v. Baches, Admr. 55 Ill. 379, and need not be further discussed here.”

Thus developed the doctrine that the negligence of the plaintiff would not bar his recovery if it was “slight,” in the sense of a “degree of negligence less than a failure to exercise ordinary care,” while the negligence of the defendant was “gross” in comparison. (Wabash, St. Louis & Pacific Ry. Co. v. Moran (1883), 13 Ill. App. 72, 76.) No attempt was made to divide the damages under this “comparative negligence” rule, and where it was applied the effect was full recovery by the plaintiff. The injured person was required to show not only that his negligence was slight and that the defendant’s negligence was gross, but also that they were so when compared with each other, since the element of comparison was the essence of the doctrine. Chicago, Milwaukee & St. Paul Ry. Co. v. Mason (1888), 27 Ill. App. 450, 453, 454.

During the next 27 years, the rule stated in Jacobs was followed and then abandoned by this court in Calumet Iron & Steel Co. v. Martin (1885), 115 Ill. 358, 368-69, and City of Lanark v. Dougherty (1894), 153 Ill. 163, 165-66, where it unequivocally made any contributory negligence on the part of the plaintiff a complete bar to recovery. Dean Green summarized the reasons for abandonment: the formula was not complete in that the “degrees of negligence” did not mitigate the damages which the plaintiff could recover; the “degrees of negligence” resulted in doctrinal conflict and confusion; and the Jacobs case had not overruled the Grimes case, so that, during the lifetime of the Jacobs decision, courts of appeal could still rely upon the failure of the plaintiff to prove that he had exercised ordinary care in his own behalf before allowing recovery on a comparative negligence basis. Green, Illinois Negligence Law, 39 Ill. L. Rev. 36, 47-51 (1944).

Other jurisdictions found problems in the doctrine of contributory negligence. Criticism of the harshness of the doctrine came as swiftly as did its acceptance into the law, and courts found exceptions to soften that harshness.

The first exception formulated to the rule of contributory negligence was that the negligence of the plaintiff was no defense when the defendant’s conduct was “wilful,” “wanton,” or “reckless.” (Prosser, Comparative Negligence, 41 Cal. L. Rev. 1, 5 (1953); Bradley v. Appalachian Power Co. (W. Va. 1979), 256 S.E.2d 879, 882; Hoffman v. Jones (Fla. 1973), 280 So. 2d 431, 437; Kirby v. Larson (1977), 400 Mich. 585, 616, 256 N.W.2d 400, 415.) This rule, however, was found to be cumbersome and difficult to apply. Historically, it is of limited importance.

The second exception that developed was limited to cases involving a defendant’s violation of a statute designed to protect the plaintiff even against his own improvident acts. Since only a minute number of cases involved such statutes, the exception did little to alleviate the plight of the negligent plaintiff. Prosser, Comparative Negligence, 41 Cal. L. Rev. 1, 5-6 (1953).

Greater relief was found in the creation of a third exception — “last clear chance” — which originated in the 1842 case of Davies v. Mann (1842), 10 M. & W. 546, 152 Eng. Rep. 588. In Davies, the defendant negligently ran into plaintiff’s donkey, which plaintiff had left fettered in the highway. The court ruled that plaintiff’s negligence in leaving the donkey in the road did not bar his claim for damages against defendant, since defendant had the “last clear chance” to avoid the accident. The basic concept resembles the effect of a superseding event nullifying the negligence of a plaintiff. Prosser, Comparative Negligence, 41 Cal. L. Rev. 1, 6-7 (1953).

The application of the third exception has by no means been uniform. Dean Prosser suggested that “ [t] he real explanation would appear to be nothing more than a dislike for the defense of contributory negligence, and a rebellion against its application in a group of cases where its hardship is most apparent.” (Prosser, Comparative Negligence, 41 Cal. L. Rev. 1, 7 (1953).) Illinois courts have expressly found the doctrine of “last clear chance” not to be the law of the State. (Specht v. Chicago City Ry. Co. (1924), 233 Ill. App. 384. Contra, Moore v. Moss (1852), 14 Ill. 106.) Dean Prosser has stated that although the doctrine has been repudiated in this State, it is nonetheless employed without labeling. Prosser, Comparative Negligence, 41 Cal. L. Rev. 1, 8 (1953). See Walldren Express & Van Co. v. Krug (1920), 291 Ill. 472, 477, employing the phrase “conscious indifference to consequences.”

Comparative negligence made its first permanent entry into American law in 1908 in the form of the Federal Employers’ Liability Act (45 U.S.C. sec. 53). The Act applied to all negligence cases for injuries sustained by railroad employees engaged in interstate commerce, whether such cases were brought in a State or a Federal court. The concept of comparative negligence provided that the contributory negligence of the employee would not act as a bar to recovery, but that recovery would be diminished in proportion to the amount of negligence attributable to him. (Prosser, Comparative Negligence, 41 Cal. L. Rev. 1, 11-12 (1953); V. Schwartz, Comparative Negligence 11 (1974); H. Woods, The Negligence Case: Comparative Fault 24, 29 (1978).) The introduction of the Federal Employers’ Liability Act was the catalyst for a flood of State statutes which established a comparative negligence standard for injuries to laborers, and, especially, for railroad employees. Prosser, Comparative Negligence, 41 Cal. L. Rev. 1, 12-13 (1953).

In 1920, Congress adopted comparative negligence for cases arising under the Jones Act (Act of June 5, 1920, ch. 250, sec. 33, 41 Stat. 1007, 46 U.S.C. sec. 688) and under the Death on the High Seas Act (Act of March 30, 1920, ch. Ill, sec. 6, 41 Stat. 537, 46 U.S.C. sec. 766). See Prosser, Comparative Negligence, 41 Cal L. Rev. 1, 12 (1953); V. Schwartz, Comparative Negligence 11, (1974); H. Woods, The Negligence Case: Comparative Fault 52 (1978); Kaatz v. State (Alaska 1975), 540 P.2d 1037, 1047.

In 1910, Mississippi became the first State to adopt a comparative negligence statute applicable to negligence cases generally. (Miss. Code Ann. sec. 11 — 7—15 (1972).) The statute adopted the “pure” form of comparative negligence under which each responsible party would pay for the injuries sustained according to the relative percentage of his fault. Another form of comparative negligence was enacted by Wisconsin in 1931. (Wis. Stat. Ann. sec. 895.045 (West 1966).) This “modified” form allowed a negligent plaintiff to recover for his injuries only if his negligence was “not as great as that of the defendant.”

Today, a total of 36 States have adopted comparative negligence. The following is a list of States which have adopted the doctrine, indicating its source and form.

(1) Alaska — Kaatz v. State (Alaska 1975), 540 P.2d 1037 (pure).
(2) Arkansas — Ark. Stat. Ann. secs. 27 — 1763 to 27-1765 (1979) (modified).
(3) California — Li v. Yellow Cab Co. (1975), 13 Cal. 3d 804, 532 P.2d 1226, 119 Cal. Rptr. 858 (pure).
(4) Colorado — Colo. Rev. Stat. sec. 13 — 21— 111 (1973 & Supp. 1978) (modified).
(5) Connecticut — Conn. Gen. Stat. Ann. sec. 52 — 572n (West Supp. 1980) (modified).
(6) Florida — Hoffman v. Jones (Fla. 1973), 280 So. 2d 431 (pure).
(7) Georgia — Ga. Code Ann. sec. 105 — 603 (1968) (unique).
(8) Hawaii — Haw. Rev. Stat. sec. 663 — 31 (1976) (modified).
(9) Idaho — Idaho Code secs. 6 — 801, 6 — 802 (1979) (modified).
(10) Kansas — Kan. Stat. sec. 60 — 258a (1976) (modified).
(11) Louisiana — La. Civ. Code Ann. art. 2323 (eff. Aug. 1, 1980) (West 1981 Supp.) (pure).
(12) Maine — Me. Rev. Stat. tit. 14, sec. 156 (1980) (modified).
(13) Massachusetts — Mass. Gen. Laws Ann. ch. 231, sec. 85 (Supp. 1978) (modified).
(14) Michigan — Placek v. City of Sterling Heights (1979), 405 Mich. 638, 275 N.W.2d 511 (pure).
(15) Minnesota — Minn. Stat. Ann. sec. 604.01 (Supp. 1981) (modified).
(16) Mississippi — Miss. Code Ann. sec. 11 — 7— 15 (1972) (pure).
(17) Montana — Mont. Rev. Codes Ann. sec. 58 — 607.1 (Supp. 1977) (modified).
(18) Nebraska — Neb. Rev. Stat. sec. 25 — 1151 (1979) (slight/gross).
(19) Nevada — Nev. Rev. Stat. sec. 41.141 (1979) (modified).
(20) New Hampshire — N.H. Rev. Stat. Ann. sec. 507:7 — a (Supp. 1979) (modified).
(21) New Jersey — N.J. Stat. Ann. secs. 2A: 15 — 5.1 to 2A: 15 — 5.3 (Supp. 1980-81) (modified).
(22) New Mexico — Claymore v. City of Albuquerque (N.M. App. Dec. 8, 1980), Nos. 4804, 4805 (pure).
(23) New York — N.Y. Civ. Prac. Law secs. 1411 to 1413 (1976) (pure).
(24) North Dakota — N.D. Cent. Code sec. 9-10-07 (1975) (modified).
(25) Oklahoma — Okla. Stat. Ann. tit. 23, secs. 13 to 14 (West Supp. 1980-81) (modified).
(26) Oregon — Or. Rev. Stat. secs. 18.470, 18.475, 18.480, 18.485, 18.490 (1979) (modified).
(27) Pennsylvania — Pa. Stat. Ann. tit. 42, sec. 7102a (Purdon Supp. 1980) (modified).
(28) Rhode Island — R.I. Gen. Laws sec. 9 — 20— 4 (Supp. 1980) (pure).
(29) South Dakota — S.D. Compiled Laws Ann. sec. 20 — 9—2 (1979) (slight/gross).
(30) Texas — Tex. Rev. Civ. Stat. Ann. art. 2212(a) (Vernon’s Supp. 1979) (modified).
(31) Utah — Utah Code Ann. secs. 78 — 27—37, 78-27-38, 78-27-41 (1977) (modified).
(32) Vermont — Vt. Stat. Ann. tit. 12, sec. 1036 (1973) (modified).
(33) Washington — Wash. Rev. Code Ann. sec. 4.22.010 (Supp. 1980) (pure).
(34) West Virginia — Bradley v. Appalachian Power Co. (W. Va. 1979), 256 S.E.2d 879 (modified).
(35) Wisconsin — Wis. Stat. Ann. sec. 895.045 (West Supp. 1980) (modified).
(36) Wyoming — Wyo. Stat. sec. 1 — 1—109 (1977) (modified).

(Note: Missouri adopted comparative “fault” in third-party noncontractual indemnity actions by judicial decision in Missouri Pacific R.R. Co. v. Whitehead & Kales Co. (Mo. 1978), 566 S.W.2d 466.)

Twenty-three States have adopted the Wisconsin “modified” approach. Ten States have adopted the Mississippi “pure” comparative negligence approach. Two States, Nebraska and South Dakota, have a system which allows the plaintiff to recover only if his negligence is “slight” and that of defendant’s is “gross.” Georgia has its own unique system. It is important to note that 29 of these 36 States have adopted comparative negligence in the last 12 years.

In England, the birthplace of Butterfield v. Forrester, the concept of contributory negligence was long ago abandoned and replaced by a system of comparative negligence. (Maki v. Frelk (1967), 85 Ill. App. 2d 439, 448, rev’d on other grounds (1968), 40 Ill. 2d 193.) Similarly, in many jurisdictions outside the United States the rule of contributory negligence has been abandoned in favor of comparative negligence. (Canada, the Canal Zone, Switzerland, Spain, Portugal, Austria, Germany, France, the Philippines, Japan, Russia, New Zealand, West Australia, Poland, and Turkey. See H. Woods, The Negligence Case: Comparative Fault 17 (1978); Prosser, Comparative Negligence, 41 Cal. L. Rev. 1, 2 (1953); Turk, Comparative Negligence on the March, 28 Chi.-Kent L. Rev. 189, 238-45 (1950).) In light of these changes the Supreme Court of Michigan, in Placek v. City of Sterling Heights (1979), 405 Mich. 638, 653, 275 N.W.2d 511, 515, stated:

“This precedent is so compelling that the question before remaining courts and legislatures is not whether but when, how and in what form to follow this lead.”

II

CONTRIBUTORY NEGLIGENCE v. COMPARATIVE NEGLIGENCE

The contributory negligence defense has been subject to attack because of its failure to apportion damages according to the fault of the parties. Under a comparative negligence standard, the parties are allowed to recover the proportion of damages not attributable to their own fault. The basic logic and fairness of such apportionment is difficult to dispute.

The defendants herein claim that no change of circumstances has been shown which would call for a change from the established doctrine of contributory negligence. The Illinois Defense Counsel, in its amicus curiae brief, relies on the words of Mr. Justice Powell for the proposition that change is not demanded by the public.

“[T]here is little evidence that the public generally is concerned. If indeed the present rule is as ‘archaic’ and ‘unjust’ as is contended, one would normally expect much greater support for the organized efforts being made to abolish it.” Powell, Contributory Negligence: A Necessary Check on the American Jury, 43 A.B.A.J. 1005, 1008 (1957).

It must be noted, however, that at the time of Mr. Justice Powell’s quoted assessment, only six States had adopted the doctrine of comparative negligence. That 30 additional States have since adopted the doctrine evidences that the basis for the assessment has changed and that today there is, indeed, a compelling public demand to abolish the old rule. Certainly, the concern which prompted the adoption of the rule can no longer support its retention. 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. (Hoffman v. Jones (Fla. 1973), 280 So. 2d 431, 437.) It must be pointed out that today most cases against industrial defendants are brought under the Worker’s Compensation Act, under which plaintiff’s negligence is not an issue. (Ill. Rev. Stat. 1979, ch. 48, par. 138.1 et seq.; Maki v. Frelk (1967), 85 Ill. App. 2d 439, 441, rev’d on other grounds (1968), 40 Ill. 2d 193.) The United States Supreme Court recognized the obsolescence of the rule in relation to present-day needs in one sphere of the law:

“The harsh rule of the common law under which contributory negligence wholly barred an injured person from recovery is completely incompatible with modem admiralty policy and practice.” (Pope & Talbot v. Hawn (1953), 346 U.S. 406, 408-09, 98 L. Ed. 143, 150, 74 S. Ct. 202, 204.)

We believe that the concept of comparative negligence which produces a more just and socially desirable distribution of loss is demanded by today’s society.

Defendants contend that the apportionment of relative fault by a jury cannot be scientifically done, as such precise measurement is impossible. The simple and obvious answer to this contention is that in 36 jurisdictions of the United States such apportionment is being accomplished by juries. The Supreme Court of California, in responding to a similar contention, stated:

“These inherent difficulties are not, however, insurmountable. Guidelines might be provided the jury which will assist it in keeping focussed upon the true inquiry [citation], and the utilization of special verdicts 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.” (Li v. Yellow Cab Co. (1975), 13 Cal. 3d 804, 824, 532 P.2d 1226, 1240, 119 Cal. Rptr. 858, 872.)

We agree that such guidelines can assist a jury in making apportionment decisions and view the necessary subtle calculations no more difficult or sophisticated for jury determination than others in a jury’s purview, such as compensation for pain and suffering. Although it is admitted that percentage allocations of fault are only approximations, the results are far superior to the “all or nothing” results of the contributory negligence rule. “Small imperfections can be disregarded, small inequities tolerated, if the final result is generally satisfactory.” Turk, Comparative Negligence on the March, 28 Chi.-Kent L. Rev. 189, 341-42 (1950).

Defendants assert that the contributory negligence rule should be retained in that the comparative negligence doctrine rewards carelessness and ignores the value of requiring prudent behavior. The fallacy of this premise was underscored by Dean Prosser:

“[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.” (Prosser, Comparative Negligence, 41 Cal. L. Rev. 1,4 (1953).)

(See Li v. Yellow Cab Co. (1975), 13 Cal. 3d 804, 811 n.4, 532 P.2d 1226, 1231 n.4, 119 Cal. Rptr. 858, 863 n.4; Kaatz v. State (Alaska 1975), 540 P.2d 1037, 1048; Kirby v. Larson (1977), 400 Mich. 585, 619 n.29, 256 N.W.2d 400, 416 n.29.) Contrary to defendants’ assertion, we believe that the need to deter negligent parties supports the adoption of the comparative negligence doctrine in which each party would be liable for damages in direct proportion to his degree of carelessness.

Defendants claim that the change to comparative negligence will cause administrative difficulties due to an increase in claims, a decrease in settlements, and a resulting overcrowded docket. An Arkansas study showed that, there, the adoption of comparative negligence prompted no drastic change in court burden; that the change increased potential litigation but promoted more pretrial settlements. The report concluded that concern over court congestion should not be a factor in a State’s decision to adopt comparative negligence. Rosenberg, Comparative Negligence in Arkansas; A “Before and After” Survey, 13 Ark. L. Rev. 89, 108 (1959). See Also Note, Comparative Negligence — A Survey of the Arkansas Experience, 22 Ark. L. Rev. 692 (1969).

In United States v. Reliable Transfer Co. (1975), 421 U.S. 397, 44 L. Ed. 2d 251, 95 S. Ct. 1708, wherein the court adopted apportionment of damages over the previous rule of divided damages in admiralty, the court addressed an argument similar to that posited by defendants herein.

“[Defendants ask] us to continue the operation of an archaic rule because its facile application out of court yields quick, though inequitable, settlements, and relieves the courts of some litigation. Congestion in the courts cannot justify a legal rule that produces unjust results in litigation simply to encourage speedy out-of-court accommodations.” (United States v. Reliable Transfer Co. (1975), 421 U.S. 397, 408, 44 L. Ed. 2d 251, 261, 95 S. Ct. 1708, 1714.)

We believe that the defendants’ fears concerning the judicial administrative problems attendant upon the adoption of comparative negligence are exaggerated. (Kaatz v. State (Alaska 1975), 540 P.2d 1037, 1048; Scott v. Rizzo (1981), 96 N.M. 682, 687, 634 P.2d 1234, 1239.) But were defendants’ fears well founded, we could nevertheless not allow the contributory negligence rule to remain the law of this State in the face of overwhelming evidence of its harsh and unjust results.

Defendants’ claim that the adoption of comparative negligence would escalate insurance rates to an unbearable level. This has not been found to be the case. Effects, in fact, have been found to be minimal. Rosenberg, Comparative Negligence in Arkansas: A “Before and After” Survey, 13 Ark. L. Rev. 89, 108 (1959). See V. Schwartz, Comparative Negligence 338 (1974); Fleming, Foreword: Comparative Negligence at Last — By Judicial Choice, 64 Cal. L. Rev. 239, 243-44 (1976).

The amicus curiae brief submitted by the Illinois Defense Counsel suggests that, under the contributory negligence rule, the jury has sufficient flexibility to do substantial justice and that this flexibility negates the necessity for the adoption of comparative negligence. In essence, the Illinois Defense Counsel alludes to the oft-observed phenomenon that, once inside the jury room, juries often ignore the harshness of the contributory negligence rule and, instead, dole out justice by a common sense approach according to the relative culpability of the litigants. We agree that such may be the case and, in fact, find the proclivity of juries to ignore the law to be a compelling reason for the abolition of that law. The Supreme Court of Florida addressed this concern.

“[T]here is something basically wrong with a rule of law that is so contrary to the settled convictions of the lay community that laymen will almost always refuse to enforce it, even when solemnly told to do so by a judge whose instructions they have sworn to follow.
The disrespect for law engendered by putting our citizens in a position in which they feel it is necessary to deliberately violate the law is not something to be lightly brushed aside; and it comes ill from the mouths of lawyers, who as officers of the courts have sworn to uphold the law, to defend the present system by arguing that it works because jurors can be trusted to disregard that very law.” (Hoffman v. Jones (Fla. 1973), 280 So. 2d 431, 437.)

There is something inherently wrong with a rule of law so repulsive to a jury’s common sense of justice that veniremen feel compelled to ignore the law. Scott v. Rizzo (1981), 96 N.M. 682, 689, 634 P.2d 1234, 1241; Hoffman v. Jones (Fla. 1973), 280 So. 2d 431, 437; Li v. Yellow Cab Co. (1975), 13 Cal. 3d 804, 811, 532 P.2d 1226, 1231, 119 Cal. Rptr. 858, 863; Fleming, Foreword: Comparative Negligence at Last — By Judicial Choice, 64 Cal. L. Rev. 239, 242-43 (1976); Prosser, Comparative Negligence, 41 Cal. L. Rev. 1, 4 (1953).

HI

JUDICIAL v. LEGISLATIVE CHANGE

It is urged by defendants that the decision to replace the doctrine of contributory negligence with the doctrine of comparative negligence must be made by the legislature, not by this court. In each of the States that have judicially adopted comparative negligence, the court addressed the propriety of judicial versus legislative adoption. In each, the court found that contributory negligence is a judicially created doctrine which can be altered or totally replaced by the court which created it. (Scott v. Rizzo (1981), 96 N.M. 682, 686-87, 634 P.2d 1234, 1238-39; Placek v. City of Sterling Heights (1979), 405 Mich. 638, 657, 275 N.W.2d 511, 517, Bradley v. Appalachian Power Co. (W. Va. 1979), 256 S.E.2d 879, 881; Li v. Yellow Cab Co. (1975), 13 Cal. 3d 804, 813-14, 532 P.2d 1226, 1232-33, 119 Cal. Rptr. 858, 864-65; Kaatz v. State (Alaska 1975), 540 P.2d 1037, 1049; Hoffman v. Jones (Fla. 1973), 280 So. 2d 431, 434. See Skinner v. Reed-Prentice Division Package Machinery Co. (1978), 70 Ill. 2d 1, 13-14.) Indeed, the United States Supreme Court deemed it appropriate to “ ‘adopt the proportional fault doctrine without Congressional action.’ ” United States v. Reliable Transfer Co. (1975), 421 U.S. 397, 410, 44 L. Ed. 2d 251, 261, 95 S. Ct. 1708, 1715.

The Illinois Defense Counsel has, in its brief, urged that the legislature is better equipped to enact comparative negligence, asserting that “the legislative process *** involves a broad examination of the entire problem without emphasis on a particular fact situation.” The Defense Counsel and defendants claim that judicial adoption of comparative negligence would result in a piecemeal approach that would leave for future cases many ancillary questions. They claim that the law would be left in confusion and turmoil.

An examination of the States from which comparative negligence statutes have emerged reveals that such statutes are very general and brief and do not address collateral issues. Rather, the legislators apparently deemed it wise to leave the solution of collateral issues to the courts. Placek v. City of Sterling Heights (1979), 405 Mich. 638, 658, 275 N.W.2d 511, 518; Kirby v. Larson (1977), 400 Mich. 585, 630, 256 N.W.2d 400, 422; Fleming, Foreword: Comparative Negligence at Last — By Judicial Choice, 64 Cal. L. Rev. 239, 281 (1976); V. Schwartz, Comparative Negligence 360-61 (1974).

Defendants point out that, since 1976, six bills were introduced in the Illinois legislature to abolish the doctrine of contributory negligence (Senate Bill 1674 on April 6, 1976, referred to committee; House Bill 1093, introduced March 29, 1977; House Bill 1368, introduced March 31, 1977; House Bill 1614, introduced April 1, 1977; House Bill 542, introduced February 21, 1979; House Bill 784, introduced March 8, 1979). They interpret the failure of each bill to pass as a sign of the General Assembly’s desire to retain the present status of the rule. Another conclusion may be drawn, however, as pointed out by Mr. Justice Ward in his dissenting opinion in Maki v. Frelk (1968), 40 Ill. 2d 193, 203: See Scott v. Rizzo (1981), 96 N.M. 682, 686-87, 634 P.2d 1234, 1238-39; Kirby v. Larson (1977), 400 Mich. 585, 627-28, 256 N.W.2d 400, 420; Hoffman v. Jones (Fla. 1973), 280 So. 2d 431, 438; Fleming, Foreword: Comparative Negligence at Last — By Judicial Choice, 64 Cal. L. Rev. 239, 277 (1976).

“It can be argued that the legislature’s inaction in this area is attributable to its feeling that it is more appropriate, considering the history of the question in Illinois, for the judiciary to act.”

In support of their view that the legislature intends to retain the rule, defendants point to various statutes which have incorporated the contributory negligence defense (Ill. Rev. Stat. 1979, ch. 24, par. 1 — 4—4 (regarding liability for injuries caused by firemen); Ill. Rev. Stat. 1979, ch. 24, pars. 1 — 4—5, 1 — 4—6 (indemnification for injuries caused by policemen); Ill. Rev. Stat. 1979, ch. 34, par. 301.1 (indemnity of sheriff or deputy); Ill. Rev. Stat. 1979, ch. 121, pars. 385, 386 (tort liability of county superintendent of highways); and Ill. Rev. Stat. 1979, ch. 1271/2, par. 46 (liability of firemen for injuries to person or property)). They claim that these statutes act as a legislative ratification of the doctrine of contributory negligence. We do not agree. We believe that in enacting such statutes the legislature did not focus on the merits of the contributory negligence rule, but, rather, conformed the statutes to the then-existing law as announced by the court.

We believe that the proper relationship between the legislature and the court is one of cooperation and assistance in examining and changing the common law to conform with the ever-changing demands of the community. There are, however, times when there exists a mutual state of inaction in which the court awaits action by the legislature and the legislature awaits guidance from the court. Such a stalemate is a manifest injustice to the public. When such a stalemate exists and the legislature has, for whatever reason, failed to act to remedy a gap in the common law that results in injustice, it is the imperative duty of the court to repair that injustice and reform the law to be responsive to the demands of society.

IV

STARE DECISIS

Defendants urge us to abide by the doctrine of stare decisis and follow the holding in Maki v. Frelk (1968), 40 Ill. 2d 193. They contend that it is crucial to the due administration of justice, especially in a court of last resort, that a question once deliberately examined and decided be closed to further scrutiny. It must first be pointed out that the Maki decision, filed 13 years ago, did not, as claimed by defendants, address the merits of the case. On the contrary, the court avoided the merits by holding that the problem was one for the legislature.

It is interesting to observe that if Illinois courts had, in fact, rigidly adhered to the stare decisis rule throughout this State’s legal history, the comparative standard could not have been adopted in Galena & Chicago Union R.R. Co. v. Jacobs (1858), 20 Ill. 478. Similarly, the comparative rule could not have been later discarded in Calumet Iron & Steel Co. v. Martin (1885), 115 Ill. 358, and City of Lanark v. Dougherty (1894), 153 Ill. 163.

The tenets of stare decisis cannot be so rigid as to incapacitate a court in its duty to develop the law. (Molitor v. Kaneland Community Unit District No. 302 (1959), 18 Ill. 2d 11, 26.) 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. This court can no longer ignore the fact that Illinois is currently out of step with the majority of States and with the common law countries of the world. We cannot continue to ignore the plight of plaintiffs who, because of some negligence on their part, are forced to bear the entire burden of their injuries. Neither can we condone the policy of allowing defendants to totally escape liability for injuries arising from their own negligence on the pretext that another party’s negligence has contributed to such injuries. We therefore hold that in cases involving negligence the common law doctrine of contributory negligence is no longer the law in the State of Illinois, and in those instances where applicable it is replaced by the doctrine of comparative negligence.

V

THE “PURE” VERSUS THE “MODIFIED” FORM OF COMPARATIVE NEGLIGENCE

There remains the question of the form of comparative negligence to be adopted. Under a “pure” form, the plaintiff’s damages are simply reduced by the percentage of fault attributable to him. Under a “modified” form, a negligent plaintiff may recover so long as the percentage of his fault does not exceed 50% of the total.

Defendants argue that should this court decide to adopt comparative negligence, the modified approach should be selected. They point to the basic unfairness of the “pure” system by example: A plaintiff who is 90% negligent has suffered $100,000 in damages. A defendant who is only 10% negligent has suffered only $10,000 in damages. Defendants here point out the basic unfairness of requiring the 10% negligent defendant to pay $10,000 to a plaintiff who was 90% at fault. The United States Supreme Court answered a similar claim concerning liability under admiralty law.

“That a vessel is primarily negligent does not justify its shouldering all responsibility, nor excuse the slightly negligent vessel from bearing any liability at all.” (United States v. Reliable Transfer Co. (1975), 421 U.S. 397, 406, 44 L. Ed. 2d 251, 259, 95 S. Ct. 1708, 1713.)

The liability of a defendant should not depend upon what- damages he sustained but should be determined by the relationship of his fault to the ultimate damages. In a suit under a “pure” form of comparative negligence in which the defendant counterclaims for his own damages, each party must bear the burden of the percentage of damages of all parties in direct proportion to his fault. In the example above, the 90% negligent plaintiff will bear 90% of his own damages as well as 90% of defendant’s. On the other hand, the 10% negligent defendant will be made to bear 10% of his own damages as well as 10% of plaintiff’s. Neither party is unjustly enriched. Neither party escapes liability resulting from his negligent acts or omissions. It is difficult to see unfairness in such a distribution of liability. See Hoffman v. Jones (Fla. 1973), 280 So. 2d 431, 439; Scott v. Rizzo (1981), 96 N.M. 682, 689-90, 634 P.2d 1234, 1241-42; V. Schwartz, Comparative Negligence 345 (1974).

Opponents of the “pure” form of comparative negligence claim that the “modified” form is superior in that it will increase the likelihood of settlement and will keep down insurance costs. However, studies done comparing the effects of the “pure” versus the “modified” forms show the differences in insurance rates to be inconsequential. (V. Schwartz, Comparative Negligence 346 (1974).) Fears as to the likelihood of settlement are not supported in fact or logic. It is argued that the negligent plaintiff will refuse to settle knowing that, under the “pure” system he will be able to recover “something” in court. The converse can as easily apply: the defendant may be encouraged to settle knowing that he cannot rely on the “modified” 50% cut-off point to relieve him of liability. A comparison of results under both the “pure” and “modified” forms showed that in Arkansas there was only a slight decrease in number of settlements when the State changed from “pure” to “modified.” Rosenberg, Comparative Negligence in Arkansas: A “Before and After” Survey, 13 Ark. L. Rev. 89 (1959).

Wisconsin’s “modified” system has been criticized because a large number of cases appealed focused on the narrow question of whether plaintiff’s negligence amounted to 50% or less of the aggregate. (Prosser, Comparative Negligence, 41 Cal. L. Rev. 1, 23 (1953).) This, in fact, caused the Wisconsin Supreme Court to examine the question of whether the “modified” system should be replaced with the “pure” form of comparative negligence. (Vincent v. Pabst Brewing Co. (1970), 47 Wis. 2d 120, 177 N.W.2d 513.) There, as in Maki v. Frelk (1968), 40 Ill. 2d 193, the merits of the case were not addressed, for the majority of the court ruled that the determination should be left to the legislature, which had originally adopted the “modified” form by statute. One dissenting and three concurring justices, however, expressed their intent to judicially adopt the “pure” form if the legislature failed to do so. See Li v. Yellow Cab Co. (1975), 13 Cal. 3d 804, 829, 532 P.2d 1226, 1243, 119 Cal. Rptr. 858, 875; Placek v. City of Sterling Heights (1979), 405 Mich. 638, 660-61, 375 N.W.2d 511, 519; Kirby v. Larson (1977), 400 Mich. 585, 642-44, 256 N.W.2d 400, 428.

The “pure” form of comparative negligence is the only system which truly apportions damages according to the relative fault of the parties and, thus, achieves total justice. We agree with the Li court that “the ‘50 percent’ system simply shifts the lottery aspect of the contributory negligence rule to a different ground.” (Li v. Yellow Cab Co. (1975), 13 Cal. 3d 804, 827, 532 P.2d 1226, 1242, 119 Cal. Rptr. 858, 874.) 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.

Mindful of the facts stated and that the vast majority of legal scholars who have studied the area recommend the “pure” approach, we are persuaded that the “pure” form of comparative negligence is preferable, and we therefore adopt it as the law of Illinois.

The collateral issue of contribution among joint tortfeasors has already been resolved under the principles of comparative negligence in Skinner v. Reed-Prentice Division Package Machinery Co. (1978), 70 Ill. 2d 1, 14, wherein this court found that “governing equitable principles require that ultimate liability for plaintiff’s injuries be apportioned on the basis of the relative degree to which [each defendant’s] conduct proximately caused them.” (See also Ill. Rev. Stat. 1979, ch. 70, par. 301 et seq.) We have already noted that the doctrine of “last clear chance” was created to escape the harshness of the contributory negligence rule. As the need for it disappears in the face of this decision, the vestiges of the doctrine of “last clear chance” are hereby abolished.

We believe that the use of special verdicts and special interrogatories will serve as a guide to assist the jury in its deliberations. We leave the resolution of other collateral issues to future cases.

VI

APPLICATION

Finally, we address the question of the applicability of the rule here announced. We hold that this opinion shall be applied to the parties before us on appeal and to all cases in which trial commences on or after June 8, 1981, the date on which the mandate in this case shall issue. This opinion shall not be applicable to any case in which trial commenced before that date — except that if any judgment be reversed on appeal for other reasons, this opinion shall be applicable to any retrial.

For the reasons stated, we hereby abolish the common law doctrine of contributory negligence and adopt in its place the doctrine of comparative negligence in its pure form. The judgments of the appellate court and circuit courts are reversed and the causes are remanded to the respective circuit courts for further proceedings in accordance with the views expressed herein.

Reversed and remanded.

MR. JUSTICE UNDERWOOD,

dissenting:

While I acknowledge the court’s power to radically change a rule of law which has existed in this State for nearly a century, I still believe, as I did when Maki v. Frelk (1968), 40 Ill. 2d 193, was decided, that the decision to change is best left to the General Assembly.

The action which is taken today by a majority of my colleagues is not unforeseen. (Skinner v. Reed-Prentice Division Package Machinery Co. (1977), 70 Ill. 2d 1, 20 (Underwood, J., dissenting).) That fact does not, however, make its wisdom less questionable. One of the major problems with a judicially decreed change of this magnitude is its effect upon a great many other, related areas of law. What modifications, for example, are now to be made in the doctrines of strict products liability (Daly v. General Motors Corp. (1978), 20 Cal. 3d 725, 575 P.2d 1162, 144 Cal. Rptr. 380), assumption of the risk, wilful and wanton misconduct, the liability of property owners to licensees, invitees, and trespassers, and many others? While the newly decreed rule of comparative negligence may ultimately affect all of these situations to a now unknown degree, the court can consider only one case at a time. Unless the legislature acts, it will in all probability be years before these questions can be judicially answered. Meanwhile, litigants and the trial courts must attempt to predict the manner in which this court will eventually resolve these now unresolved questions. The fact that the General Assembly could, if it considered a change desirable, adopt one of the comprehensively drafted bills with which it has been presented and resolve these related questions simultaneously is, to me, a persuasive reason for this court to exercise a greater degree of judicial restraint.

There are other reasons to prefer legislative action. If a change is to be made, what should the new rule be? The majority chooses the “pure” form of comparative negligence because it “is the only system which truly apportions damages according to the relative fault of the parties and, thus, achieves total justice.” (85 Ill. 2d at 27.) That is not, however, a universal view. The Supreme Court of Appeals of West Virginia, in adopting a modified form of comparative negligence, had this to say of the pure form:

“While it can be conceded that there is an obvious injustice in the current contributory negligence rule which bars recovery no matter how light the plaintiffs negligence, nevertheless the pure comparative negligence rule seems equally extreme at the other end of the spectrum.
The history of the common law is one of gradual judicial development and adjustment of the case law to fit the changing conditions of society. We see no practical benefit to be gained by the radical break from the common law’s tort-fault methodology that the pure comparative negligence rule requires. There are basic inequities inherent in the pure comparative negligence rule and its resulting singular emphasis on the amount of damages and insurance coverage as the ultimate touchstone of the viability of instituting a suit.
We do not accept the major premise of pure comparative negligence that a party should recover his damages regardless of his fault, so long as his fault is not 100 percent. Without embarking on an extended philosophical discussion of the nature and purpose of our legal system, we do state that in the field of tort law we are not willing to abandon the concept that where a party substantially contributes to his own damages, he should not be permitted to recover for any part of them. We do recognize that the present rule that prohibits recovery to the plaintiff if he is at fault in the slightest degree is manifestly unfair, and in effect rewards the substantially negligent defendant by permitting him to escape any responsibility for his negligence.
* * *
By way of summary, we believe that moderating the harshness of our contributory negligence rule achieves a more satisfactory balance in the allocation of fault as it relates to recovery in our tort system. Our comparative negligence rule still bars the substantially negligent plaintiff from obtaining a recovery, but it does permit the plaintiff who is more than slightly at fault to recover his injuries diminished by his percentage of contributory negligence. The rule is an intermediate position between the absolute bar of the present contributory negligence rule and the almost total permissiveness of the pure comparative negligence rule. It represents a considerable improvement over the present rule without undertaking a radical change in our present fault-based tort system, as would be the case with pure comparative negligence.” Bradley v. Appalacian Power Co. (W. Va. 1979), 256 S.E.2d 879, 883-85, 887.

While I do not totally disagree with the proposition that modification of our heretofore existing contributory negligence rule is desirable, I am not at all certain that the pure form of comparative negligence is the preferred substitute. If it is, it seems odd that of the 36 States which have adopted some form of comparative negligence approximately two thirds have chosen a modified form. And, while the majority says the pure form “achieves total justice,” the fact that this form permits a grossly negligent but severely injured plaintiff to recover substantial damages from a slightly negligent defendant with only minor injuries certainly represents a radical departure from the concept of individual responsibility which has heretofore underlain our system of tort law. Despite the assertion by the majority that the pure form produces a utopian form of justice, most of the States adopting a comparative neghgence rule have preferred to deny recovery to one whose own neghgence was the principal cause of his injuries.

Whether a change is desirable, and, if so, what that change should be, are major pohcy questions. Their resolution will have a substantial effect upon the people of this State. Recovery will henceforth be possible for conduct of a significantly less reprehensible nature than heretofore. Litigation will surely increase, thus augmenting the burden upon our already overburdened courts, and insurance rates wih likely rise in unknown amounts. Pohcy choices such as those involved here are, it seems to me, best left to the judgment of a General Assembly staffed and equipped to explore, consider, and resolve simultaneously these many-faceted questions.

The majority emphasizes as justification for its action the cliche that courts which created a rule can modify it, and cites cases from some six States which have adopted comparative neghgence. There are a greater number, including Maki, to the contrary (Baab v. Shockling (1980), 61 Ohio St. 2d 55, 56-57, 399 N.E.2d 87, 88; McGraw v. Corrin (Del. 1973), 303 A.2d 641, 644; Codling v. Paglia (1973), 32 N.Y.2d 330, 344-45, 298 N.E.2d 622, 630, 345 N.Y.S.2d 461, 472 (legislature has since adopted comparative neghgence); Krise v. Gillund (N.D. 1971), 184 N.W.2d 405, 409 (legislature has since adopted comparative neghgence); Bridges v. Union Pacific R.R. Co. (1971), 26 Utah 2d 281, 285, 488 P.2d 738, 740 (legislature has since adopted comparative neghgence); Peterson v. Culp (1970), 255 Or. 269, 272, 465 P.2d 876, 877 (legislature has since adopted comparative negligence)). Representative comments by some of the courts which have resisted importunings to legislate on this subject are also significant:

“This court does not deem it necessary at this time to discuss the positive and negative aspects of the doctrine of comparative negligence, as it is our considered opinion that such a change in this area of the law should emanate from the General Assembly. In so deferring to legislative judgment, we find that we are not alone.” Baab v. Shockling (1980), 61 Ohio St. 2d 55, 57, 399 N.E.2d 87, 88.
“We should recognize that, although courts, at times, in arriving at decisions have taken into consideration social needs and policy, it is the paramount role of the legislature as a coordinate branch of our government to meet the needs and demands of changing times and legislate accordingly.” Bissen v. Fujii (1970), 51 Haw. 636, 638, 466 P.2d 429, 431.
“[W]here the change is of such far-reaching effect as the adoption of a comparative-negligence rule which would take the place of the rule of contributory negligence which has been followed in North Dakota since before statehood, we believe that it would be desirable that such change should be made by the Legislative Assembly, and not by the courts.” Krise v. Gillund (N.D. 1971), 184 N.W.2d 405, 409.

The fact that our legislature has indicated its approval of the contributory negligence rule is, it seems to me, demonstrated by its incorporation of that rule in numerous statutes. (See, e.g., Ill. Rev. Stat. 1979, ch. 24, pars. 1 — 4—4, 1 — 4—5, 1 — 4—6; ch. 34, par. 301.1; ch. 121, pars. 385, 386.) The majority chooses to characterize this action as conformance to existing law, ignoring the fact that the legislature was under no obligation to conform if it preferred otherwise.

It is to me anomalous for the majority to cite the introduction, consideration, and rejection of six bills in the legislature in less than five years as support for the proposition that there has been legislative “inaction” on the subject. (85 Ill. 2d at 22.) Rather, it seems to me, the introduction of so many bills indicates a considerable amount of activity, and an additional bill, House Bill 0142, providing a system of comparative negligence, is presently pending. The General Assembly has been well aware from our annual reports to it that the large majority of the judges of Illinois were in favor of legislative adoption of some form of comparative negligence. There is no reason to believe, as the majority'suggests, that the absence of legislation doing so should now be viewed as indicating the legislature is awaiting action by this court. Rather, I would have thought the substantial volume of proposed legislation on the subject which had failed to pass indicated the General Assembly’s considered judgment that no change should be made. If that assumption is correct, my colleagues are simply overruling the judgment of the members of our General Assembly on a major question of public policy because they “believe that the concept of comparative negligence which produces a more just and socially desirable distribution of loss is demanded by today’s society” (85 Ill. 2d at 17) and “it is the imperative duty of the court to repair that injustice [contributory negligence], and reform the law to be responsive to the demands of society” (85 Ill. 2d at 23-24). I would respectfully suggest that the 236 members of the General Assembly are far better situated than the members of this court to determine what is “socially desirable” and to gauge the “demands of society.” In a republic in which law-making power is vested, at least theoretically, in our elected representatives, I would have thought a greater degree of judicial self-restraint desirable. (Kelsay v. Motorola (1978), 74 Ill. 2d 172, 190 (Underwood, J., concurring in part and dissenting in part).) The willingness of the judiciary to invade the legislative realm simply encourages additional resort to the courts for resolution of difficult questions of public policy better left to the legislative branch. Beer, On Behalf of Judicial Restraint, 15 Trial 37-39 (Apr. 1979); Deukmejian 8c Thompson, All Sail and No Anchor — Judicial Review Under the California Constitution, 6 Hastings Const. L.Q. 975-1010 (1979); Fernandez, Custom and the Common Law: Judicial Restraint and Lawmaking by Courts, 11 Sw. U.L. Rev. 1237-93 (1979).

While I do not, of course, suggest that rules of law should be immune to judicial improvement, I would, as we did in Maki, leave the question of change and its nature to the General Assembly in a situation as complex as this. Maki v. Frelk (1968), 40 Ill. 2d 193.

MR. JUSTICE RYAN,

also dissenting:

I join in the dissent of Mr. Justice Underwood. However, I wish to add a few observations, realizing that some of them may be simply saying in another way that which has already been stated.

Although not necessary to this dissent, I wish to state that I do not completely agree with the majority opinion’s conclusion concerning the development of the doctrine of contributory negligence and comparative negligence in Illinois. Nor do I believe that the cases cited demonstrate that this State was, in the past, a jurisdiction which followed the comparative negligence doctrine. Instead, I view the Illinois cases cited, wherein references are made to “gross” negligence or “slight” negligence and similar statements, as formulating, through common evolutions, the concept that contributory negligence is not a defense to wilful and wanton misconduct.

It is not my intention to herein debate the relative merits of comparative negligence as against contributory negligence. As Mr. Justice Underwood has stated, and as I later state herein, that is a question which the legislature should resolve. It is interesting to note, however, that comparative negligence has not received universal acceptance. There are apparently 14 States that have resisted the pressure to adopt this doctrine, including the legislature of this State in the 12 years since Maki v. Frelk (1968), 40 Ill. 2d 193. It also appears that comparative negligence has not always been considered to be as desirable as the majority opinion indicates it now is. Recently, in some recreational reading, the following statement was found. It was made by John W. Davis, a former member of Congress, a former solicitor general of the United States, an attorney who argued 140 cases before the United States Supreme Court, and the Democratic candidate for President of the United States in 1924. In discussing the Federal Employers’ Liability Act (cited in the majority opinion as being a statute which adopted comparative negligence), Davis stated: “The Act *** destroys contributory negligence as a defense [and] restores the doctrine of comparative negligence long since repudiated by the courts *** .” (Harbaugh, Lawyer’s Lawyer, The Life of John W. Davis 62-63 (Oxford University Press 1973).) Since comparative negligence has enjoyed such a vacillating acceptance, one can only wonder if this court will again be called upon at some time in the future to change the “judge-made law” we create today.

For the sake of stability, if for no other reason, it would appear preferable to have such a radical change as this made by the legislature. This court in Maki recognized that a substantial body of law has developed incorporating the doctrine of contributory negligence and that the legislature was in a manifestly better position to consider the numerous problems involved in a departure from that doctrine. Now, just 12 years later, with only two members of the Maki court still serving, this court has reversed itself and has held that this court and not the legislature should reject contributory negligence in favor of comparative negligence. Conceivably in a few years, when the present members of this court will no longer be serving and when their replacements may be less enthusiastic about comparative negligence, this court could reject the judge-made law of this case. If we were to adhere to the holding of Maki and accept the action or inaction of the legislature, as the case may be, as the policy of this State, the law would be free from this possible uncertainty and we would either follow the doctrine of contributory negligence or comparative negligence free from judicial tinkering.

I am bothered by the idea that no more than four individuals, four members of this court (five members have joined in the majority in this case), can radically change the fabric of the law that will hereafter govern the conduct of the 11 million residents of this State. I am bothered by the fact that this court has snatched the problem from the hands of the 236 elected representatives of those 11 million people and has decreed that it, not the elected representatives, shall determine whether this State will follow comparative negligence and whether it will be the “pure” or “modified” form. I am particularly disturbed that this court could do this after having held in Maki that any change in this area should be made by the legislature and after the proponents of comparative negligence have, on at least six occasions since Maki, been unable to convince a majority of the elected representatives of the People of the merit of the proposition. I am not only disturbed but offended by the idea that the proponents of comparative negligence, not being able after six tries to convince the representatives of the People, should decide that it would be easier to persuade the majority of this seven-member court, which represents no constituency.

This court must not assume the role of a super general assembly which can be called into session to enact a rule of law whenever the proponents of that rule are unable to secure its passage in the proper forum. This court has not been favored with an omnipotence not possessed by this State’s coequal branches of government. Nor should we, as a court, consider ourselves to be more profound or more perceptive with regard to the needs of the citizens of this State than is the legislature. “The power of the courts is great indeed, but it is not a power to be construed with evangelic illusions of legislative or political primacy. If this is true, then the self-restraint by the courts in lawmaking must be their greatest contribution to the democratic society.” C. Britell, The Lawmakers, 65 Colum. L. Rev. 749, 777 (1965).

Although it may be true that the doctrine of contributory negligence developed through judicial decisions, as noted in Maki and in the majority opinion here, in the years since the adoption of this doctrine a considerable amount of legislatively created law incorporated and relied on the doctrine of contributory negligence. Thus, with these legislative enactments woven into the fabric of a doctrine created by judicial decisions, I do not agree that this court is at liberty to excise from the fabric that portion thereof which has been judicially created, leaving the remnants of legislatively created law intact. Today’s decision, of course, can have no effect on those legislative enactments which have incorporated contributory negligence, nor will the law announced today have any effect on those statutes where contributory negligence is not a defense. It appears that this State will be operating under the doctrine of contributory negligence in the areas where the legislature has acted, and under the doctrine of pure comparative negligence in common law negligence cases. Besides being confusing and difficult to apply, will not the existence of these two doctrines create equal protection problems similar to those considered in Harvey v. Clyde Park District (1964), 32 Ill. 2d 60, and Grasse v. Dealer’s Transport Co. (1952), 412 Ill. 179? In those cases the equal protection violations were the result of legislative action. Equal protection requirements, however, apply as well to judicially made law. (See 16A Am. Jur. 2d Constitutional Law sec. 798 (1979); 16A C.J.S. Constitutional Law sec. 505 (1956).) It seems to me that the problems created could be resolved if we would have adhered to the holding of Maki, which recognized that the legislature is in a manifestly better position to deal with the many questions involved in such a drastic change than is this court. My opposition to the majority opinion does not stem from my firm belief that judges should not participate in the law-making process. I do not oppose judicial participation in this area in proper cases. This is demonstrated by the fact that I authored the opinion in Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, and joined in the opinions in Skinner v. Reed-Prentice Division Package Machinery Co. (1977), 70 Ill. 2d 1, Stevens v. Silver Manufacturing Co. (1977), 70 Ill. 2d 41, and Robinson v. International Harvester Co. (1977), 70 Ill. 2d 47.

Earlier I stated I did not intend to debate the relative merits of comparative negligence as against contributory negligence. I do, however, wish to explore the nature of comparative negligence.

Contributory negligence is, of course, based upon the fault concept of tort law. Comparative negligence, while ostensibly involving the fault concept, is, in reality, a product of that school of tort law which has held that it was unjust for one who is injured not to be compensated for his loss. This is particularly true of “pure,” as compared with “modified,” comparative negligence. Thus the focus of pure comparative negligence is on compensation and the distribution of the loss and retains only a semblance of the fault basis as a means of accomplishing its main purpose. In other words, in my opinion, pure comparative negligence is another fiction in the law which those who refuse to accept the no-fault theory of recovery have promoted to accomplish essentially no-fault recovery.

The history of the popularity of comparative negligence indicates that between 1908 and 1941 various statutory modifications of contributory negligence were passed by Congress and by a few State legislatures. Also during that period a few States enacted general comparative negligence statutes. From 1941 to 1970 there was little activity by either the courts or legislative bodies promoting comparative negligence. During this period the writers on the subject, while supporting the principles of comparative negligence, acknowledged the problems attendant to its implementation. (See W. Prosser, Comparative Negligence, 51 Mich. L. Rev. 465 (1953).) It was not until the early 1970’s that interest was again evidenced in comparative negligence, when 13 States adopted the doctrine by legislation between 1971 and 1973. Coincidentally, at about this same time, academicians had mounted an attack against the negligence theory of recovery and had suggested alternatives to the common law fault standard of tort liability. (See O’Connell, Expanding No Fault Beyond Auto Insurance: Some Proposals, 59 Va. L. Rev. 749 (1973).) It has been suggested that the rush to embrace comparative negligence in the early 1970’s may be seen as an effort to preserve the negligence theory against the prospective competition of no-fault theories. See G.P. White, Tort Law in America 164-68 (1980).

I have heretofore, on at least two occasions, deplored the use of legal fictions to enable injured persons to recover under a negligence theory when in fact the fiction employed permits recovery on a no-fault basis. See Renslow v. Mennonite Hospital (1977), 67 Ill. 2d 348, 379-81 (Ryan, J., dissenting); Spidle v. Steward (1980), 79 Ill. 2d 1, 25 (Ryan,J., dissenting in part).

Statutory remedies permitting recovery without fault traditionally have required a quid pro quo for the right to recover free from defenses available to a defendant under the common law. The quid pro quo in many statutes, such as the Worker’s Compensation Act (Ill. Rev. Stat. 1979, ch. 48, par. 138.1 et seq.), is a limitation on the amount that may be recovered. (See Wright v. Central Du Page Hospital Association (1976), 63 Ill. 2d 313, 327.) Under pure comparative negligence, as adopted by the majority, the injured plaintiff will have the best of both worlds. He will be able to recover for his injuries without fault and at the same time not be limited in the amount he may recover.

To say that a jury will discount a plaintiff’s recovery by his degree of negligence is not realistic. Just as sympathetic juries operating under limitations of contributory negligence apply a form of comparative negligence, juries operating under pure comparative negligence will, in effect, compensate a plaintiff for his injuries, regardless of the degree of his fault.

Again I urge the legislature, as I did in Renslow and in Spidle, to review the entire negligence tort field and either out and out adopt a no-fault theory or retain the fault concept and adopt a modified no-fault theory for those who are injured as a result of their own negligence or who cannot recover because of some defense available under the common law. To me, there is something basically false about devising fictions to permit recovery under a negligence theory when, in fact, recovery is had under the principle of no fault. I am sure that these fictions will in the future be viewed with the same degree of derision with which we now view the fictions developed in the Middle Ages to circumvent the strictures of the law, both civil and criminal, of that time.

For these reasons I must dissent from the opinion of the court.

Dissenting Opinion Upon Denial of Rehearing

MR. JUSTICE RYAN,

dissenting:

Following the filing of the original opinion in this case, there was considerable confusion among the members of the bar and the judiciary as to the applicability of its holding. The majority has attempted to clarify this problem by modifying the opinion on denial of rehearing.

After having operated under the contributory negligence doctrine for 100 years, I fail to understand the rush to apply pure comparative negligence. It would seem only fair and equitable to apply this judge-made law prospectively to causes of action arising after the issuance of the mandate in this case, June 8, 1981, as this court did in Skinner v. Reed-Prentice Division Package Machinery Co. (1977), 70 Ill. 2d 1, Stevens v. Silver Manufacturing Co. (1977), 70 Ill. 2d 41, Robinson v. International Harvester Co. (1977), 70 Ill. 2d 47, Renslow v. Mennonite Hospital (1977), 67 Ill. 2d 348, and Molitor v. Kaneland Community Unit District No. 302 (1959), 18 Ill. 2d 11.

To attempt to apply the holding of this case other than purely prospectively can only lead to harsh and inequitable results. A seriously injured but contributorially negligent plaintiff whose case was filed in a county with a fairly current calendar may have been denied recovery or, in evaluating his case, may have accepted nominal settlement, relying upon the contributory negligence doctrine. However, an equally seriously injured and' equally contributorially negligent plaintiff who was injured at an earlier date, but whose case was filed in a county with a backlog of personal injury cases, and whose case was not called for trial before June 8, 1981, can now amend his complaint and recover under the pure comparative negligence doctrine. Also, defendants, in evaluating their exposure to liability in accidents which happened before the decision in this case, did so on the basis of the contributory negligence doctrine. Now they are exposed to liability in those same cases to which they had not been previously exposed.

The opinion also states that the holding of this case does not apply to any case in which trial was commenced before June 8, 1981, “except that if any judgment be reversed on appeal for other reasons, this opinion shall be applicable to any retrial.” (85 Ill. 2d at 28.) I do not understand the equity in permitting a person, on retrial, to allege comparative negligence a year or two hence, when a person who went to trial a week or two ago could not rely upon the holding in this case.

The above are only a few of the many potential inequities that will arise by the majority’s application of the holding of this case. After having operated under contributory negligence for so long, it would not appear to severely jeopardize our system of jurisprudence to apply comparative negligence only to injuries received after June 8, 1981. All those who received injuries before that date would then receive equal treatment. Some would not be disadvantaged because their attorneys were not dilatory or the courts wherein their cases were filed operated more efficiently in disposing of personal injury cases. Also, some would not receive favored treatment simply because their cases were fortuitously reversed on appeal and remanded for new trials.

MR. JUSTICE UNDERWOOD joins in this dissent.


source: Caselaw Access Project

author: MR. JUSTICE WARD

license: Public Domain

text:
    (Nos. 53250, 53299 cons.
    HOMER F. ALTEVOGT et al., Appellants, v. THOMAS BRINKOETTER et al. (Thomas B. Brinkoetter, Appellee and Cross-Appellant; John (Sonny) Hinton, Jr., Appellee).

      Opinion filed March 31, 1981.

    — Rehearing denied June 4, 1981.

      Gary F. Geisler, of Geisler, Waks & Geisler, of Decatur, for appellants Homer F. Altevogt and Sarah M. Altevogt.
    Samuels, Miller, Schroeder, Jackson 8c Sly, of Decatur (William O. Martin, Jr., of counsel), for appellee and cross-appellant, Thomas B. Brinkoetter.
    Rosenberg, Rosenberg, Bickes 8c Johnson, Chartered, of Decatur (Jeffrey D. Richardson, of counsel), for appellee John (Sonny) Hinton.
    Baker & Bellatti, of Springfield (James P. Baker, of counsel), for amicus curiae the Homebuilders Association of Illinois.
   MR. JUSTICE WARD

delivered the opinion of the court:

The plaintiffs, Homer F. Altevogt and Sarah M. Altevogt, filed a complaint in the circuit court of Macon County on July 12, 1978, against Tom Brinkoetter and Company, the Citizens National Bank of Decatur, and John (Sonny) Hinton, Jr., seeking damages of $20,000 for alleged defects in a new house purchased from Tom Brinkoetter and Company and built by Hinton. The complaint was dismissed, as was a first amended complaint, and on March 9, 1979, the plaintiffs filed a second amended complaint which substituted Thomas B. Brinkoetter for Tom Brinkoetter and Company as the defendant from whom the plaintiffs had purchased the property. Motions by each of the four defendants to dismiss the second amended complaint were granted by the circuit court.

The plaintiffs took an appeal to the appellate court from the dismissal of the action as to Thomas B. Brinkoetter and Hinton. The court reversed the judgment and remanded the cause as to Brinkoetter, and affirmed the judgment as to Hinton. (81 Ill. App. 3d 711.) We granted petitions for leave to appeal filed by the plaintiffs and by Brinkoetter under Rule 315(a) (73 Ill. 2d R. 315(a)) and consolidated the appeals. Tom Brinkoetter and Company and the Citizens National Bank of Decatur are not parties to the appeals.

The second amended complaint was in three counts. Count I sought recovery from Brinkoetter for the alleged breach of an implied warranty that the house was fit for habitation. Count II sought recovery from the bank on the same theory. Count III sought recovery from Hinton for breach of a warranty to build the house in a reasonably workmanlike manner. We consider first the action against Brinkoetter.

The complaint alleged that Brinkoetter was the beneficial owner of a lot in Decatur, legal title to which was held by the bank as trustee, and that he contracted with Hinton, on a date not stated in the complaint, to build a house on this lot. It was further alleged that on May 1, 1973, the plaintiffs and Brinkoetter entered into a written contract whereby the latter was to sell the premises to the plaintiffs for the sum of $30,500, which sum had been fully paid. A copy of the contract was attached to the complaint. The premises were conveyed to the plaintiff on June 8.

Count I does not allege that the house was in existence when the contract of sale was executed, nor, on the other hand, does it allege that Brinkoetter promised the plaintiffs to build a house on the lot as part of the transaction. And neither the complaint nor the contract states that the subject of the sale was the lot as improved with a house. The house may have been in the process of construction when the contract was executed, for added to the printed form is a handwritten list of eight items, including the installation of drywall and plumbing fixtures and electrical outlets, which the seller agrees to complete.

Count I is also silent as to when the house was completed. Count III, however, alleges that it was not finished until the last week of July. In answers to interrogatories the plaintiffs stated that they moved into the house on June 23.

Count I enumerates five defects which allegedly rendered the house unfit for habitation. It is alleged that these defects were not known to the plaintiffs and could not reasonably have been discovered at the time of purchase or at the time of completion.

In his motion to dismiss and on this appeal Brinkoetter contends that the action against him was barred by limitations, and that the complaint fails to state a cause of action because it does not allege that he was the builder as well as the vendor of the house. The appellate court considered only the first of these contentions.

The warranty which is the basis of the action against Brinkoetter arose out of the written agreement between Brinkoetter and the plaintiffs (Petersen v. Hubschman Construction Co. (1979), 76 Ill. 2d 31, 41). The warranty was not set forth in the contract, however, but was implied by law. The question thus arises as to whether this case is governed by the 10-year period prescribed by section 16 of the Limitations Act (Ill. Rev. Stat. 1979, ch. 83, par. 17) for actions on a written contract or the five-year period prescribed by section 15 (Ill. Rev. Stat. 1979, ch. 83, par. 16) for “actions on unwritten contracts, express or implied *** and all civil actions not otherwise provided for.”

- Brinkoetter contends that it is section 15 which applies, citing in support of his position Mowatt v. City of Chicago (1920), 292 Ill. 578. Mowatt did not involve an implied warranty, and it is not controlling here. The question whether an action such as this should be characterized as one on a written contract has not received a uniform answer in the courts of other States. (See Annot., 1 A.L.R.3d 914, 917 (1965).) It need not be resolved here, however, for the plaintiffs agree in their brief that the case should be governed by the five-year period. We therefore proceed on that assumption, as did the appellate court.

The next question for consideration is the date when the five-year period started to run. Brinkoetter contends that it was May 1, 1973, when the contract was executed. The plaintiffs contend that it was the last week of July of that year, i.e., from July 24 to July 31, when construction of the house was completed. The significance of the choice of starting points is that the original complaint was filed on July 12, 1978, whereas the second amended complaint, in which Brinkoetter was first made a defendant, was not filed until March 9, 1979. Measured from the execution of the contract, the original complaint, and thus the second amended complaint,' would each have been untimely, but measured from the completion of construction the original complaint, although not the second amended complaint, would have been timely.

The appellate court held that while the warranty arose out of the contract of sale the subject of the warranty was “the condition of the house at the time it is completed and the deed has passed.” (Emphasis in original.) (81 Ill. App. 3d 711, 713.) That conclusion is consistent with the characterization of an implied warranty of habitability made in Petersen v. Hubschman Construction Co. (1979), 76 Ill. 2d 31, 42. Petersen, in which the court first recognized the existence of an implied warranty of habitability in the sale of a new home, did not deal with the limitations question, and its facts differed from those of this case in that the property had never been conveyed. As applied to the allegations of the present complaint, however, we consider that the appellate court was correct in holding that no breach of warranty could occur prior to the completion of the house, and that the limitations period accordingly did not begin to run at any earlier point. Cf. Sponseller v. Meltebeke (1977), 280 Or. 361, 570 P.2d 974.

Dismissal of a complaint is proper under section 48(l)(e) of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 48(l)(e)) if it appears from the face of the complaint that the action was not commenced within the time limited by law. The appellate court nevertheless did not affirm the judgment of the circuit court but reversed and remanded. Its ground for so doing was that it did not appear from the face of count I of the complaint (the only count directed against Brinkoetter) that the action was barred, since the allegation of the date when construction was completed was made only in count III, which sought relief only against the builder, Hinton. We think that the appellate court erred in thus fragmenting the complaint. The better practice might perhaps have been for Brinkoetter to append to his motion to dismiss an affidavit stating the date when construction was completed. The latter is not controverted by the plaintiffs, however, and a reversal and remand would therefore merely postpone the determination of the case without altering the result, for on the remand Brinkoetter could allege the date in his answer, and move for judgment on the pleadings.

The plaintiffs also maintain that their claim is not barred for the reason that the addition of Brinkoetter as a defendant in the second amended complaint relates back to the filing of the original complaint by virtue of section 46(4) of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 46(4)). Subsection (4) permits relation back only if the plaintiff meets each of five specified conditions. One of the conditions, specified in subsection (4)(c), is that summons was served upon the defendant or his agent. When the original complaint was filed the record shows that summons was served on the registered agent of Tom Brinkoetter and Company and the registered agent of the Citizens National Bank of Decatur. No claim is made that summons was also served on Thomas B. Brinkoetter personally. The plaintiffs argue in their brief that service upon the corporation and the trustee sufficed since each of them should be regarded as the agent of Brinkoetter. Despite the similarity between Brinkoetter’s name and that of the corporation, the complaint does not allege that either the corporation or its registered agent was Brinkoetter’s agent. The complaint, indeed, does not allege the existence of any relationship whatever between Brinkoetter and the corporation.

So far as service upon the bank is concerned, the provision of subsection (4)(c) relating to service upon a trustee does not apply to every trust but only to a trust whose trustee has “no power of management or control” over the real property constituting the trust. As the historical and practice notes point out, this subsection was aimed at the conventional Illinois land trust where the names of the beneficiaries are not disclosed. (Ill. Ann. Stat., ch. 110, par. 46(4)(c), at 257 (Smith-Hurd 1968).) The complaint contains no allegations that would bring subsection (4)(c) into play.

We therefore conclude that count I was barred by the statute of limitations, and it is unnecessary to decide whether it states a cause of action.

We turn then to the claim against the defendant Hinton asserted by count III. That count alleges Brinkoetter’s ownership of the lot, his entry into a contract with Hinton to build a house on it, the purchase of the property by the plaintiffs, and the completion of construction during the last week of July 1973. No copy of a contract between Brinkoetter and Hinton is attached to the complaint, and its terms and date of execution are not alleged, despite section 36 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 36).

Paragraphs 5 and 6 allege as follows:

“5. THAT in contracting to build and in building said residence, Defendant, JOHN (SONNY) HINTON, JR., impliedly warranted that said residence would be constructed in a reasonably workmanlike manner.
6. THAT the Defendant, JOHN (SONNY) HINTON, JR., knew that said residence was not to be inhabited by THOMAS B. BRINKOETTER, but was to be held out for sale to unidentified prospective buyers.”

Paragraph 9 alleges that the house was not constructed in a reasonably workmanlike manner by reason of one or more of 13 enumerated defects. These include all of the five defects alleged in count I and eight others. It is alleged that the plaintiffs did not know of and could not reasonably have discovered any of the defects either at the time of the purchase or the time when construction was completed.

The plaintiffs’ briefs make it clear that the warranty by Hinton referred to in paragraph 5 is not claimed to have been made to the plaintiffs, but only to Brinkoetter. There is no allegation of any contract or even any negotiations between the plaintiffs and Hinton. The plaintiffs’ claim is rather that they are entitled to sue upon the warranty as third parties for whose benefit it was made.

The starting point for analysis of whether count III states a cause of action is the principle that Hinton’s liability to the plaintiffs as third parties is limited by the terms of his obligation to the promisee, Brinkoetter (2 Williston on Contracts sec. 364A (3d ed. 1959); 4 Corbin on Contracts sec. 773 (1951); Restatement (Second) of Contracts sec. 140 (1981)). The appellate court noted this point but did not discuss it.

A contract to construct a building is a contract to render services, and courts applying Illinois law have recognized that such a contract may carry an implied undertaking that the various jobs of which the overall construction is composed will be performed in a reasonably workmanlike manner (Georgetown Township High School District No. 218 v. Hardy (1976), 38 Ill. App. 3d 722, 724; Dean v. Rutherford (1977), 49 Ill. App. 3d 768, 770; Economy Fuse & Manufacturing Co. v. Raymond Concrete Pile Co. (7th Cir. 1940), 111 F.2d 875, 878-79). This undertaking is often spoken of as a “warranty,” although the latter term, strictly speaking, is applicable to the sale of property rather than the furnishing of services (Stewart Warner Corp. v. Burns International Security Services, Inc. (N.D. Ill. 1972), 343 F. Supp. 953, 954).

Hinton’s motion to dismiss asserts that count IH should be dismissed for failure to sufficiently allege that the defects complained of resulted from Hinton’s failure to perform in a workmanlike manner. While there may be some question on this score, we need not address it, since we agree with the appellate court that the plaintiffs are not intended beneficiaries of the contract.

The parties are in agreement that the general principles in this State on the right of a person not a party to a contract to enforce it are to be found in Carson Pirie Scott & Co. v. Parrett (1931), 346 Ill. 252. In that case a corporation which was engaged in budding a new hotel had issued bonds secured by a chattel mortgage on equipment and furnishings to be installed in the hotel. The corporation subsequently encountered financial difficulties, and the underwriters refused to disburse further funds. Two officers of the corporation then entered into a contract with the underwriters of the bonds, promising that certain equipment and furnishings would be purchased from named vendors and would be installed in the hotel by a date certain, and guaranteeing payment for the merchandise by the corporation. Upon the corporation’s default one of the vendors sued the guarantors to recover for merchandise sold and delivered.

The court held that the plaintiff had standing to maintain the action. Since the ultimate purpose of the contracting parties was to protect the underwriters against loss and thereby enable the corporation to finish the hotel and place it in operation, the contention was made that any benefit to the plaintiff was incidental rather than direct, and that the plaintiff was not entitled to sue. The court rejected that contention on the ground that in naming the plaintiff the contract showed an intention to confer a benefit upon it. In the court’s view the promisors were not merely insuring that the plaintiff would be compensated for any merchandise which might be bought from it, but were expressing an intention that the merchandise be obtained from that source. See 346 Ill. 252, 265.

While some other jurisdictions might view the matter differently, Illinois, as shown by the Carson Pirie Scott decision, holds that a third party is a direct rather than an incidental beneficiary only if the contracting parties have manifested in their contract an intention to confer a benefit upon the third party. As the court stated:

“The rule is, that the right of a third party benefited by a contract to sue thereon rests upon the liability of the promisor, and this liability must affirmatively appear from the language of the instrument when properly interpreted and construed. The liability so appearing can not be extended or enlarged on the ground, alone, that the situation and circumstances of the parties justify or demand further or other liability. [Citation.] ” 346 Ill. 252, 258.

This principle was recently applied in People ex rel. Resnik v. Curtis & Davis, Architects & Planners, Inc. (1980), 78 Ill. 2d 381. In that case the Illinois Building Authority, which at the time was not a State agency but an independent public corporation, contracted for architectural and other services in connection with the construction of a building to be leased by the Authority to the State Department of Public Safety for use as a correctional center. The contract made frequent reference to the Department, and directed that the architects consult with it concerning the design of the building.

The court, quoting the same passage from Carson Pine Scott which is given above, held that the State could maintain an action to recover damages for breach of contract as a third-party beneficiary. (See 78 Ill. 2d 381, 384-85.) After noting that there were surrounding circumstances which also showed an intention of the parties to benefit the State, the court added:

“Yet, we repeat that it is the contract which is controlling and is persuasive here; and on that basis we limit our holding: the State is a proper party plaintiff because it is a direct beneficiary clearly identified and intended in the contract before us.” 78 Ill. 2d 381, 386-87.

The opinion of the appellate court relies in part on the failure of the complaint to allege that Hinton knew that it was the plaintiffs who would be the purchasers of the house. In this regard the appellate court erred. It is not necessary that a contract for the benefit of a third party identify him by name. The contract may define a third party by description of a class, and it is sufficient if the plaintiff may be identified at the time performance is due as a member of the class intended to be benefited. Restatement (Second) of Contracts sec. 139 (1981); 4 Corbin, Contracts sec. 781 (1951); 2 Williston, Contracts sec. 356A (3d ed. 1959).

In the construction of a single building designed for some particular purchaser, as was the case in People ex rel Resnik v. Curtis & Davis, Architects & Planners, Inc., the contract with the builder might well identify the third-party beneficiary by name. On the other hand, a developer who has contracted with a builder to construct houses in a subdivision for sale to members of the general public and who desires to confer upon some as yet unknown purchaser a right to satisfactory performance by the builder is not likely to refer to the purchaser by name.

It remains true, nevertheless, that if the purchaser predicates his suit upon his status as a third-party beneficiary of the contract, he must allege facts which show an intent on the part of the developer to confer the benefit, which normally would be expressed in the agreement between the promisor and promisee. Here the contract is not a part of the record, nor does the complaint allege that under the contract the parties intended to benefit a third person. That requirement is of particular importance in this case, where the plaintiffs would impose upon Hinton a contractual liability which is broader than that asserted against Brinkoetter, who was charged only with having sold the plaintiffs a house whose defects rendered it uninhabitable.

The plaintiffs point to the allegation of paragraph 6 that Hinton “knew” that the house was not to be occupied by Brinkoetter but would be offered for sale to other persons. We note initially the absence of any allegation that Brinkoetter had informed Hinton that such was his intention prior to the execution of the contract. Apart from that consideration, we do not believe that Hinton’s knowledge that a third party would occupy the house establishes that the plaintiffs were direct beneficiaries.

A similar contention was rejected in Rozny v. Marnul (1969), 43 Ill. 2d 54, 60. There the court declined to expand the third-party beneficiary doctrine so as to permit the purchasers of an improved lot to recover damages from a surveyor who had prepared, at the request of the prior owner, a survey, which was in fact inaccurate, even though the surveyor knew that the plat would be relied on by others, including the plaintiffs (43 Ill. 2d 54, 67). Recovery was sought in Rozny on the basis of an express warranty; the holding there would a fortiori control where only an implied warranty is claimed.

The plaintiffs cite Stotlar v. Hester (1978), 92 N.M. 26, 582 P.2d 403, in support of their position. In Stotlar the purchasers of real estate sought damages from an appraiser, employed by the vendors, who had furnished the latter with an inaccurate appraisal on which the purchasers’ offering price was based. The court held that the purchasers would qualify as third-party beneficiaries if the purpose of the appraisal was to enable the purchasers to obtain financing which would permit the vendors to receive a price high enough to cover the cost of a replacement home. (See 92 N.M. 26, 30-31, 582 P.2d 403, 407-08.) No comparable state of affairs is alleged in the present complaint.

In Gilbert Financial Corp. v. Steelform Contracting Co. (1978), 82 Cal. App. 3d 65, 145 Cal. Rptr. 448, also cited by the plaintiffs, the plaintiff had entered into a contract with a general contractor to construct a building on his land, and the defendant was a subcontractor who had been engaged by the general contractor to install the roof. The court held that the plaintiff could recover damages for defects in the roof as the third-party beneficiary of an implied warranty of workmanship made by the defendant to the general contractor.

The decision in Gilbert is contrary to the position taken in section 133 of the Restatement (Second) of Contracts (1981), which defines an “intended” beneficiary (corresponding to what is called a “direct” beneficiary in Carson Pirie Scott) and an incidental beneficiary. Illustration 18 to section 133 is as follows:

“A contracts to erect a building for C. B then contracts with A to supply lumber needed for the building. C is an incidental beneficiary of B’s promise, and B is an incidental beneficiary of C’s promise to pay A for the building.” See also 4 Corbin, Contracts sec. 779D, at 46-47 (1951).

Gilbert, in any event, does not involve the situation here, where the plaintiffs are not the owners who contracted for the construction of the building, but subsequent purchasers. In that situation our decision in Rozny v. Marnul remains applicable, and the plaintiffs accordingly may not maintain an action against Hinton as direct beneficiaries.

For the reasons given in this opinion we reverse the judgment of the appellate court and affirm that of the circuit court with respect to the claim against the defendant Brinkoetter asserted by count I of the complaint. As to the claim against the defendant Hinton asserted by count III we affirm the judgment of the appellate court.

Appellate court affirmed in part and reversed in part; circuit court affirmed.

MR. JUSTICE SIMON took no part in the consideration or decision of this case.