OPINION BY: FRANK F. DROWOTA, III

In this personal injury action, we granted Plaintiff's application for permission to appeal in order to decide whether to adopt a system of comparative fault in Tennessee. [. . .]

In the early morning darkness of November 2, 1986, Plaintiff-Harry Douglas McIntyre and Defendant-Clifford Balentine were involved in a motor vehicle accident resulting in severe injuries to Plaintiff. The accident occurred in the vicinity of Smith's Truck Stop in Savannah, Tennessee. As Defendant-Balentine was traveling south on Highway 69, Plaintiff entered the highway (also traveling south) from the truck stop parking lot. Shortly after Plaintiff entered the highway, his pickup truck was struck by Defendant's Peterbilt tractor. At trial, the parties disputed the exact chronology of events immediately preceding the accident.

Both men had consumed alcohol the evening of the accident. After the accident, Plaintiff's blood alcohol level was measured at .17 percent by weight. Testimony suggested that Defendant was traveling in excess of the posted speed limit.

Plaintiff brought a negligence action against Defendant-Balentine and Defendant-East-West Motor Freight, Inc. Defendants answered that Plaintiff was contributorially negligent, in part due to operating his vehicle while intoxicated. After trial, the jury returned a verdict stating: "We, the jury, find the plaintiff and the defendant equally at fault in this accident; therefore, we rule in favor of the defendant."

After judgment was entered for Defendants, Plaintiff brought an appeal alleging the trial court erred by (1) refusing to instruct the jury regarding the doctrine of comparative negligence, and (2) instructing the jury that a blood alcohol level greater than .10 percent creates an inference of intoxication. The Court of Appeals affirmed, holding that (1) comparative negligence is not the law in Tennessee, and (2) the presumption of intoxication provided by T.C.A. § 55-10-408(b) (1988) is admissible evidence in a civil case.

I.

The common law contributory negligence doctrine has traditionally been traced to Lord Ellenborough's opinion in Butterfield v. Forrester, 11 East 60, 103 Eng. Rep. 926 (1809). There, plaintiff, "riding as fast as his horse would go," was injured after running into an obstruction defendant had placed in the road. Stating as the rule that "one person being in fault will not dispense with another's using ordinary care," plaintiff was denied recovery on the basis that he did not use ordinary care to avoid the obstruction. [. . .]

The contributory negligence bar was soon brought to America as part of the common law, see Smith v. Smith, 19 Mass. 621, 624 (1824), and proceeded to spread throughout the states. [. . .] This strict bar may have been a direct outgrowth of the common law system of issue pleading; issue pleading posed questions to be answered "yes" or "no," leaving common law courts, the theory goes, no choice but to award all or nothing. [. . .] A number of other rationalizations have been advanced in the attempt to justify the harshness of the "all-or-nothing" bar. Among these: the plaintiff should be penalized for his misconduct; the plaintiff should be deterred from injuring himself; and the plaintiff's negligence supersedes the defendant's so as to render defendant's negligence no longer proximate. [. . .]

In Tennessee, the rule as initially stated was that "if a party, by his own gross negligence, brings an injury upon himself, or contributes to such injury, he cannot recover;" for, in such cases, the party "must be regarded as the author of his own misfortune." Whirley v. Whiteman, 38 Tenn. 610, 619 (1858). In subsequent decisions, we have continued to follow the general rule that a plaintiff's contributory negligence completely bars recovery. [. . .]

Equally entrenched in Tennessee jurisprudence are exceptions to the general all-or-nothing rule: contributory negligence does not absolutely bar recovery where defendant's conduct was intentional, [. . .] where defendant's conduct was "grossly" negligent, [. . .] where defendant had the "last clear chance" with which, through the exercise of ordinary care, to avoid plaintiff's injury, [. . .] or where plaintiff's negligence may be classified as "remote." [. . .]

In contrast, comparative fault has long been the federal rule in cases involving injured employees of interstate railroad carriers, see Federal Employers' Liability Act, ch. 149, § 3, 35 Stat. 66 (1908) (codified at 45 U.S.C. § 53 (1988)), and injured seamen. [. . .] See generally V. Schwartz, Comparative Negligence § 1.4(A) (2d ed. 1986).

Similarly, by the early 1900s, many states, including Tennessee, had statutes providing for the apportionment of damages in railroad injury cases. See V. Schwartz, supra, at § 1.4. While Tennessee's railroad statute did not expressly sanction damage apportionment, it was soon given that judicial construction. In 1856, the statute was passed in an effort to prevent railroad accidents; it imposed certain obligations and liabilities on railroads "for all damages accruing or resulting from a failure to perform said duties." Act of Feb. 28, 1856, ch. 94, § 9, 1855-56 Tenn. its 104. [. . .] Apparently this strict liability was deemed necessary because "the consequences of carelessness and want of due skill [in the operation of railroads at speeds previously unknown] . . . are so frightful and appalling that the most strict and rigid rules of accountability must be applied." See East Tennessee & G.R.R. v. St. John, 37 Tenn. 524, 527 (1858) [. . .] The statute was then judicially construed to permit the jury to consider "negligence of the person injured, which caused, or contributed to cause the accident . . . in determining the amount of damages proper to be given for the injury." Louisville & N.R.R. v. Burke, 46 Tenn. 45, 51-52 (1868). This system of comparative fault was utilized for almost a century until 1959 when, trains no longer unique in their "astonishing speeds," the statute was overhauled, its strict liability provision being replaced by negligence per se and the common law contributory negligence bar. [. . .]

Between 1920 and 1969, a few states began utilizing the principles of comparative fault in all tort litigation. [. . .] Then, between 1969 and 1984, comparative fault replaced contributory negligence in 37 additional states. [. . .] In 1991, South Carolina became the 45th state to adopt comparative fault [. . .], leaving Alabama, Maryland, North Carolina, Virginia, and Tennessee as the only remaining common law contributory negligence jurisdictions.

Eleven states have judicially adopted comparative fault. Thirty-four states have legislatively adopted comparative fault.

II.

Over 15 years ago, we stated, when asked to adopt a system of comparative fault:

We do not deem it appropriate to consider making such a change unless and until a case reaches us wherein the pleadings and proof present an issue of contributory negligence accompanied by advocacy that the ends of justice will be served by adopting the rule of comparative negligence.

Street v. Calvert, 541 S.W.2d at 586. Such a case is now before us. After exhaustive deliberation that was facilitated by extensive briefing and argument by the parties, amicus curiae, and Tennessee's scholastic community, we conclude that it is time to abandon the outmoded and unjust common law doctrine of contributory negligence and adopt in its place a system of comparative fault. Justice simply will not permit our continued adherence to a rule that, in the face of a judicial determination that others bear primary responsibility, nevertheless completely denies injured litigants recompense for their damages.

We recognize that this action could be taken by our General Assembly. However, legislative inaction has never prevented judicial abolition of obsolete common law doctrines, especially those, such as contributory negligence, conceived in the judicial womb. [. . .] Indeed, our abstinence would sanction "a mutual state of inaction in which the court awaits action by the legislature and the legislature awaits guidance from the court," Alvis v. Ribar, 85 Ill. 2d 1, 421 N.E.2d 886, 896, 52 Ill. Dec. 23 (1981), thereby prejudicing the equitable resolution of legal conflicts.

Nor do we today abandon our commitment to stare decisis. While "confidence in our courts is to a great extent dependent on the uniformity and consistency engendered by allegiance to stare decisis, . . . mindless obedience to this precept can confound the truth and foster an attitude of contempt." Hanover, 809 S.W.2d at 898.

III.

Two basic forms of comparative fault are utilized by 45 of our sister jurisdictions, these variants being commonly referred to as either "pure" or "modified." In the "pure" form, a plaintiff's damages are reduced in proportion to the percentage negligence attributed to him; for example, a plaintiff responsible for 90 percent of the negligence that caused his injuries nevertheless may recover 10 percent of his damages. In the "modified" form, plaintiffs recover as in pure jurisdictions, but only if the plaintiff's negligence either (1) does not exceed ("50 percent" jurisdictions) or (2) is less than ("49 percent" jurisdictions) the defendant's negligence. See generally V. Schwartz, supra, at §§ 3.2, 3.5.

Although we conclude that the all-or-nothing rule of contributory negligence must be replaced, we nevertheless decline to abandon totally our fault-based tort system. We do not agree that a party should necessarily be able to recover in tort even though he may be 80, 90, or 95 percent at fault. We therefore reject the pure form of comparative fault.

We recognize that modified comparative fault systems have been criticized as merely shifting the arbitrary contributory negligence bar to a new ground. [. . .] However, we feel the "49 percent rule" ameliorates the harshness of the common law rule while remaining compatible with a fault-based tort system. [. . .] We therefore hold that so long as a plaintiff's negligence remains less than the defendant's negligence the plaintiff may recover; in such a case, plaintiff's damages are to be reduced in proportion to the percentage of the total negligence attributable to the plaintiff.

In all trials where the issue of comparative fault is before a jury, the trial court shall instruct the jury on the effect of the jury's finding as to the percentage of negligence as between the plaintiff or plaintiffs and the defendant or defendants. [. . .] The attorneys for each party shall be allowed to argue how this instruction affects a plaintiff's ability to recover.

IV.

Turning to the case at bar, the jury found that "the plaintiff and defendant [were] equally at fault." Because the jury, without the benefit of proper instructions by the trial court, made a gratuitous apportionment of fault, we find that their "equal" apportionment is not sufficiently trustworthy to form the basis of a final determination between these parties. Therefore, the case is remanded for a new trial in accordance with the dictates of this opinion.

V.

We recognize that today's decision affects numerous legal principles surrounding tort litigation. For the most part, harmonizing these principles with comparative fault must await another day. However, we feel compelled to provide some guidance to the trial courts charged with implementing this new system.

First, and most obviously, the new rule makes the doctrines of remote contributory negligence and last clear chance obsolete. The circumstances formerly taken into account by those two doctrines will henceforth be addressed when assessing relative degrees of fault.

Second, in cases of multiple tortfeasors, plaintiff will be entitled to recover so long as plaintiff's fault is less than the combined fault of all tortfeasors.

Third, today's holding renders the doctrine of joint and several liability obsolete. Our adoption of comparative fault is due largely to considerations of fairness: the contributory negligence doctrine unjustly allowed the entire loss to be borne by a negligent plaintiff, notwithstanding that the plaintiff's fault was minor in comparison to defendant's. Having thus adopted a rule more closely linking liability and fault, it would be inconsistent to simultaneously retain a rule, joint and several liability, which may fortuitously impose a degree of liability that is out of all proportion to fault.

Further, because a particular defendant will henceforth be liable only for the percentage of a plaintiff's damages occasioned by that defendant's negligence, situations where a defendant has paid more than his "share" of a judgment will no longer arise, and therefore the Uniform Contribution Among Tort-feasors Act, T.C.A. §§ 29-11-101 to 106 (1980), will no longer determine the apportionment of liability between codefendants.

Fourth, fairness and efficiency require that defendants called upon to answer allegations in negligence be permitted to allege, as an affirmative defense, that a nonparty caused or contributed to the injury or damage for which recovery is sought. In cases where such a defense is raised, the trial court shall instruct the jury to assign this nonparty the percentage of the total negligence for which he is responsible. However, in order for a plaintiff to recover a judgment against such additional person, the plaintiff must have made a timely amendment to his complaint and caused process to be served on such additional person. Thereafter, the additional party will be required to answer the amended complaint. The procedures shall be in accordance with the Tennessee Rules of Civil Procedure.

Fifth, until such time as the Tennessee Judicial Conference Committee on Civil Pattern Jury Instructions promulgates new standard jury instructions, we direct trial courts' attention to the suggested instructions and special verdict form set forth in the appendix to this opinion.

VI.

The principles set forth today apply to (1) all cases tried or retried after the date of this opinion, and (2) all cases on appeal in which the comparative fault issue has been raised at an appropriate stage in the litigation.

[. . .]

For the foregoing reasons, the judgment of the Court of Appeals is reversed in part and affirmed in part, and the case is remanded to the trial court for a new trial in accordance with the dictates of this opinion. The costs of this appeal are taxed equally to the parties.