specially concurring.
I agree with Justice Rooney that the majority “reached its result through a proper historical analysis of the case under existing statutes and previous case law.” Rather than overrule our earlier cases and reverse, I would opt to affirm this case and urge the legislature to reexamine our stat*1278utes and by appropriate legislation cure the inequities pointed out by Justice Rooney.
Under our statutory scheme, § 1-1-109, W.S.1977 (comparative negligence), and §§ 1-1-110 through 1-1-113, W.S.1977 (right to contribution among joint tort-feasors), a defendant with only slight fault could be required to pay the entire judgment (in the event the defendant who was principally at fault was insolvent). Also under our statutory scheme, a defendant who is principally at fault could settle for a token amount before trial and thus shift the remaining burden of a large judgment on a defendant whose fault is slight. (See examples set out by Justice Rooney in his dissent.)
I am not convinced the legislature intended the apparent inequity that I have pointed out. Our statutory scheme helps redistribute the wealth but I am not persuaded it is free from constitutional infirmities.
Kansas has a reasonable provision in its comparative negligence scheme:
“Where the comparative negligence of the parties in any action is an issue and recovery is allowed against more than one party, each such party shall be liable for that portion of the total dollar amount awarded as damages to any claimant in the proportion that the amount of his or her causal negligence bears to the amount of the causal negligence attributed to all parties against whom such recovery is allowed.” Kan. Stat.Ann. § 60-258a(d) (1983).
This statutory provision was construed in Brown v. Keill, 224 Kan. 195, 580 P.2d 867, 874 (1978):
“ * * * [W]e hold under the provisions of K.S.A. 60-258a the concept of joint and several liability between joint tort-fea-sors previously existing in this state no longer applies in comparative negligence actions. The individual liability of each defendant for payment of damages will be based on proportionate fault, and contribution among joint judgment debtors is no longer required in such cases.”