dissenting.
I would abandon contributory negligence and the last clear chance and humanitarian *296doctrines as viable concepts in Missouri and would reverse and remand this case for trial under a concept of pure comparative fault.
I am mindful of the classical common law process articulated in R. Bridwell and R. Whitten, The Constitution and the Common Law 13-15 (Lexington, Massachusetts: D. C. Heath and Company, 1977). That process is given flexibility to embrace change by the doctrine “of desuetude, or the repeal of custom by disuse. Just as custom would be gradually introduced and adopted by consent, so might it gradually be abrogated by the ‘tacit consent of all.’ ” Id. at 22.
In James, Comments on Maki v. Frelk, 21 Vand.L.Rev. 891, 895 (1968), it was noted “that juries now do for plaintiffs illicitly what the change [to comparative negligence] would do for them forthrightly. * * * Juries * * * probably speak for the community sense of fairness more faithfully than do legislatures. Consistent jury acceptance of proportional negligence * * * suggests that legislative failure to enact this reform reflects inertia rather than community sentiment.”
I agree. In my view, juries in Missouri have effectually repealed the “all-or-nothing” doctrine of contributory negligence by disuse. Now embraced by general acceptance is the concept that where persons contribute to cause an occurrence, and damage is suffered, each should bear responsibility only in proportion to his fault. As I perceive it, this is the essence of the concept of pure comparative fault.
In Missouri Pacific Railroad Co. v. Whitehead & Kales Co., 566 S.W.2d 466, 474 (Mo. banc 1978), this Court held that the “principle of fairness imbedded within our law compels * * * [the] adoption of a system for the distribution of joint tort liability on the basis of relative fault.” Most significantly, we embraced the concept, as explicated in Rawls, A Theory of Justice, that “in exchange for the opportunity of some undertaking, we each promise all others that we will be liable for the damage which our own negligence in the undertaking has caused.” Id. at 469. Therefore, the essential question in this case narrows to whether the Rawls concept should apply to all parties — defendants and plaintiffs. Of course, it must.
The doctrine of contributory negligence is court-made. Butterfield v. Forrester, 11 East 60, 103 Eng.Rep. 926 (1809). The last clear chance and humanitarian doctrines are court-made. Davies v. Mann, 10 M & W 546, 152 Eng.Rep. 588 (1842); McCleary, The Bases of the Humanitarian Doctrine Reexamined, 5 Mo.L.Rev. 56 (1940). The teaching of Abernathy v. Sisters of St. Mary’s, 446 S.W.2d 599 (Mo. banc 1969) is that we need not defer to the General Assembly in the circumstances of this case.
Accordingly, I would adopt a system of pure comparative fault, as follows:
I. Effect of Contributory Fault.
(a) In an action based on fault to recover damages for injury or death to person or harm to property, any contributory fault chargeable to a claimant diminishes proportionately the amount awarded as compensatory damages for any injury attributable to that claimant’s contributory fault, but does not bar recovery. This rule applies whether or not the claimant’s contributory fault heretofore constituted a defense or was disregarded under applicable legal doctrines, such as the last clear chance and humanitarian doctrines.
(b) “Fault” includes acts or omissions that are in any measure negligent or reckless toward the person or property of the actor or others, or that subject a person to strict tort liability. The term also includes breach of warranty, unreasonable assumption of risk not constituting an enforceable express consent, misuse of a product for which the defendant otherwise would be liable, and unreasonable failure to avoid an injury or to mitigate damages. Legal requirements of causal relation apply both to fault as the basis for liability and to contributory fault.
II. Apportionment of Damages.
(a) In all actions involving fault of more than one person, the court, unless otherwise agreed by all parties, shall in*297struct the jury to make findings, indicating:
(1) the amount of damages each claimant would be entitled to recover if his contributory fault is disregarded; and
(2) the percentage of the total fault that is allocable to each tort-feasor-party, including claimants. For this purpose the court may determine that two or more persons are to be treated as a single party. The percentages shall total 100%.
(b) A tort-feasor’s percentage of fault shall be taken into consideration in determining the total fault even though judgment cannot be entered against him. Where the evidence warrants it, the court shall add that person as a party solely for the purpose of determining and allocating fault upon a 100% basis.
(c) In determining the percentages of fault, the trier of fact shall consider both the nature of the conduct of the person and the extent of the causal relation between the conduct and the damages claimed.
(d) The court shall determine the award of damages to each claimant, and shall state in the judgment the amount which represents each party’s share of the obligation to each claimant in accordance with the respective percentages of fault found, holding each party responsible by judgment only for his apportioned amount. There shall be no set-off between claimants.
(e) The court shall not enter judgment against a tort-feasor-party, in accordance with the percentage of his fault found, if the claim against him is barred by release or by law.
It should be apparent that in adopting a system of pure comparative fault in Missouri I would borrow freely, but selectively, from the Uniform Comparative Fault Act, 12 U.L.A. (1977). See also Wade, A Uniform Comparative Fault Act — What Should It Provide?, 10 Univ. of Mich.J. of L.Ref. 220 (1977).
It should also be apparent that in the usual comparative fault situation I would do away with joint and several liability among tort-feasors held responsible by the trier of fact; they should be liable only severally, and not jointly. See Adams, Settlement After Li: But Is It “Fair”? 10 Pac.L.J. 729, 739-40 (1979). Otherwise, “one defendant could, in derogation of the stated purposes [of pure comparative fault], be apportioned a responsibility for satisfying damages greater than his own proportionate share of fault.” Timmons and Sil-vis, Pure Comparative Negligence in Florida: A New Adventure in the Common Law, 28 Univ. of Miami L.Rev. 737, 778 (1974). See also Note, Multiple Party Litigation Under Comparative Negligence in Kansas— Damage Apportionment as a Replacement for Joint and Several Liability, 16 Washburn L.J. 672 (1977); Note, Reconciling Comparative Negligence, Contribution, and Joint and Several Liability, 34 Wash. & Lee L.Rev. 1159, 1170-71 (1977).
I respectfully dissent.