Peterson v. Culp

DENECKE, J.,

specially concurring.

I concur in the decision of the majority. I do not, however, concur in the suggestion that because the issue is one of public policy any change is exclusively *273within the power of the legislature. Contributory negligence is court-made law and the court can consistent with the doctrine of the separation of powers lawfully change the law in this regard. We repudiated the doctrine of charitable immunity (which also was court-made law); we are as free to repudiate the doctrine of contributory negligence if we deem it desirable for the court to do so. However, I agree with the majority that in this instance legislative change is preferable. If the legislature is inactive on this subject I would favor re-examining the problem.

Sloan and O’Connell, JJ., join in this specially concurring opinion.