After Hilen v. Hays - Kentucky's New Comparative Negligence
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NEW COMPARATIVE NEGLIGENCE
INTRODUCTION
In the recent decision of Hilen v. Hays Kentucky's Supreme Court
rejected its long-established rule pertaining to contributory
negligence and took the bold step of adopting a new rule of com-
parative negligence.1 The court's decision was indeed significant,
allowing the Commonwealth of Kentucky to join a growing majority
of jurisdictions which now utilize one of several possible forms of
comparative negligence.2 Implications beyond the confines of the
holding in Hilen are as yet unclear, but one thing is certain: the
contributory negligence defense will no longer serve its traditional
role as a complete bar to recovery in an action founded upon
negligence A pure scheme of comparative negligence is the new
way for the Commonwealth'.
This comment shall 1) briefly discuss the case of Hilen v. Hayes;
2) review the recently rejected doctrine of contributory negligence;
3) give an overview of the development of the comparative
negligence standard; and 4) peer around the corner, after the Hilen
decision, to determine how Kentucky's judicially-mandated com-
parative negligence standard should apply to selected areas of the
law.
I. THE CASE-HILEN V. HAYS
Hilen v. Hays5 grew out of what one might, at first glance, think
to be a rather ordinary kind of negligence action. The appellant
in the case, Margie Montgomery Hilen, was a passenger in an
automobile driven by the appellee, Keith Hays. While in an intox-
icated state, Hays overturned his vehicle by running into the back
of another vehicle. Hilen, as a result, suffered injuries and sought
redress for the negligent manner in which Hays had driven his
1. Hilen v. Hays, 673 S.W.2d 713 (Ky. 1984) [Hereinafter cited as Hilen].
2. See C. HEFT & J. HEFT, COMPARATIVE NEGLIGENCE MANUAL 3 (1978) [hereinafter cited
as HEFT & HEFT]; Woods, The Trend Toward Comparative Fault, A Major Development in
Products Liability Litigation, 20 TRIAL 16 (1984) [hereinafter cited as Woods]; LAUFENBERG,
COMPARATIVE NEGLIGENCE PRIMER, DEF. RESEARCH INST. 8 (1975) [hereinafter cited as
LAUFENBERG].
3. See Hilen, supra note 1.
4. Id. at 720.
5. Hilen, supra note 1.](ViewImageLocal?handle=hein.journals/nkenlr13&div=13&collection=&method=preview&ext=.png&size=3)
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After Hilen v. Hays - Kentucky's New Comparative Negligence
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