No. 24012 -- Ray Junior Moran and Mary V. Moran,
Husband and Wife, v. Atha Trucking, Inc., a corporation; James
A. Fornash; Chuck Kirkpatrick; and E.&S. Coal Company, Inc.
No. 24081 -- Deborah A. Fletcher v. Raymond R. Sias
Starcher, J., concurring:
I concur with the majority's
opinion, and write to emphasize that all negligence cases are to be tried exclusively
under the umbrella of comparative negligence principles.
As the majority opinion deftly discusses, the common law is constantly flexing to change with the times. Nineteenth century concepts of contributory negligence have given way to principles of comparative negligence. However, vestigial doctrines of the contributory negligence era, such as the sudden emergency doctrine or the clear distance ahead rule, as well as other doctrines, continue to exist.
It seems to me that with the clear principle of comparative negligence, as adopted by this Court in Bradley v. Appalachian Power Co., 163 W.Va. 332, 256 S.E.2d 879 (1979), other doctrines, that heretofore may have been defenses, should be merged under the umbrella doctrine of comparative negligence and simply become factors for the jury to consider in determining the comparative negligence of the parties.
I refer specifically to doctrines
such as assumption of risk,See footnote
1 1 last clear chance,See
footnote 2 2 sudden emergency, rescue doctrine,See
footnote 3 3 and the clear distance ahead doctrine. These factors,
when relevant to a particular case, should be instructed upon by the judge,
but it should be made clear that these are simply factors in determining
the comparative negligence of the parties, and not defenses when assigning
comparative fault to the parties.
And, accordingly, a party should certainly be allowed to argue to the jury the relevance of any of these doctrines as they are applicable to a particular case.
I therefore concur with the majority's opinion that courts should rarely give a sudden emergency instruction, and only then as a part of a comparative negligence instruction.