Steinman v. Strobel , 1979 Mo. LEXIS 306 ( 1979 )

BARDGETT, Chief Justice,

dissenting.

I would adopt a comparative fault system in this case and abandon contributory negligence, last clear chance, and humanitarian doctrines in Missouri.

The purpose of this dissent is to make clear that there is an alternative to the concepts enunciated by Judge Donnelly in his dissenting opinion which is also known as “pure” comparative fault but which does not involve abandonment of joint liability nor permit a person to be joined as a party even though no judgment could be rendered against him.

In the state of California “pure” comparative fault was adopted in Li v. Yellow Cab Co., 13 Cal.3d 804, 119 Cal.Rptr. 858, 532 P.2d 1226 (1975), as opposed to other types of comparative negligence systems, such as the one in effect in the state of Wisconsin which prohibits recovery if the claimant is more than fifty percent negligent. In American Motorcycle Assn. v. Superior Court, 20 Cal.3d 578, 146 Cal.Rptr. 182, 578 P.2d 899 (1978), the Supreme Court of California adopted the system of distribution of fault as between tort-feasors very similar to what this court adopted in Missouri Pacific Railroad Co. v. Whitehead & Kales Co., 566 S.W.2d 466 (Mo. banc 1978). In American Motorcycle, supra, the Supreme Court of California dealt with the ancillary matters attending the adoption of a comparative fault system and, inter alia, retained joint liability, but as between tort-feasors allowed the same type of apportionment as this Court allowed in the Whitehead & Kales case. The reader may see those cases for the reasoning and details of the system in effect in California.

Essentially, I would adopt the system as set forth in Li v. Yellow Cab, supra, and American Motorcycle Assn. v. Superior Court, supra.