Part of the price we pay for a system wisely dedicated to even-handed justice under law is that courts often fail to identify those exceptional cases in which the highest aims of the system are served rather than threatened by a judicial break with precedent. Thus it happens that in the long, slow story of law reform, a recent case in the Illinois courts raised hopes for a rare and distinctive breakthrough. In Maki v. Frelk, responding to an invitation from the state's supreme court to reexamine the well entrenched rule that contributory negligence of an injured person is a complete bar to recovery for harm negligently caused by another, the appellate court for the second district proposed to abrogate the traditional rule and establish instead a rule apportioning damages.' On appeal, however, by a five-to-two decision, the Supreme Court of Illinois adhered to the old rule and suggested that if change is to come, it must come from the legislature. But since today's dissenting opinion may be tomorrow's judgment, Maki v. Frelk deserves to be rated not merely as an opportunity lost, but also as a step forward toward more enlightened rules on the legal effect of contributory fault. It is a small step, perhaps, but significant nonetheless.
Robert E. Keeton,
21 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol21/iss6/4