Washington Law Review


Robert B. Fisko


On December 21, 1978, the Washington Supreme Court decided in Robberts v. Johnson to overrule the common law gross negligence rule applied in Lau and earlier cases, and to adopt the ordinary negligence rule, followed by a majority of states. Remanding to trial on an ordinary negligence standard, the court gave plaintiff Robberts the retroactive benefit of the new rule, but remained silent on any further retroactive effect of the decision. The principal issue in Lau's second appeal, argued after the filing of the Robberts decision, was whether and to what extent the Robberts overruling decision should be given further retroactive effect. In Lau v. Nelson the Washington Supreme Court rejected Lau's request to apply the new rule to his case, refusing to order a new trial on the ordinary negligence standard. Three judges dissented, terming the denial of retroactivity "an unconscionable and unexplainable injustice."

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