Nga Li v. Yellow Cab Co.

CLARK, J.

I dissent.

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

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

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

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

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

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

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

McComb, J., concurred.

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

Tyrone v. Kelley (1973) 9 Cal.3d 1, 10-11 [106 Cal.Rptr. 761, 507 P.2d 65]; Friends of Mammoth v. Board of Supervisors (1972) 8 Cal.3d 247, 256 [104 Cal.Rptr. 761, 502 P.2d 1049]; Mannheim v. Superior Court (1970) 3 Cal.3d 678, 686 [91 Cal.Rptr. 585, 478 P.2d 17]; Scala v. Jerry Witt & Sons, Inc. (1970) 3 Cal.3d 359, 366 [90 Cal.Rptr. 592, 475 P.2d 864]; Merrill v. Department of Motor Vehicles (1969) 71 Cal.2d 907, 918 [ 80 Cal.Rptr. 89, 458 P.2d 33],

“It remains to identify the precise form of comparative negligence which we now. adopt for application in this state. Although there are many variants, only the two basic forms need be considered here.” (Ante, p. 827.)

See, e.g., Codling v. Paglia (1973) 32 N.Y.2d 330, 344-345 [345 N.Y.S.2d 461, 298 N.E.2d 622]; McGraw v. Corrin (Del. 1973) 303 A.2d 641, 644; Bridges v. Union Pacific Railroad Company (1971) 26 Utah 2d 281 [488 P.2d 738]; Parsonson v. Construction Equipment Company (1971) 386 Mich. 61 [191 N.W.2d 465] (concurring opinion); Krise v. Gillund (N.Dak. 1971) 184 N.W.2d 405; Peterson v. Culp (1970) 255 Ore. 269 [465 P.2d 876]; Vincent v. Pabst Brewing Co. (1970) 47 Wis.2d 120 [177 N.W.2d 513]; Maki v. Frelk (1968) 40 Ill.2d 193 [239 N.E.2d 445, 32 A.L.R.3d 452]; compare Hoffman v. Jones (Fla. 1973) 280 So.2d 431.