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Urging a Change in the Law: When to Set Aside Precedent?

By Thomas R. Newman and Steven J. Ahmuty, Jr.
May 6, 2015
New York Law Journal

Urging a Change in the Law: When to Set Aside Precedent?

By Thomas R. Newman and Steven J. Ahmuty, Jr.
May 6, 2015
New York Law Journal

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Thomas Newman
Thomas R. Newman

The common law doctrine of stare decisis provides that once a court has decided a legal issue, subsequent cases presenting similar facts should be decided in conformity with the earlier decision.[1] But the doctrine is not an inflexible rule. Judicial decisions simply determine the rights of the parties to an action that is before the court at a particular time in history. They are not, and are not meant to be, immutable laws governing the conduct of mankind and designed for the ages, such as the Ten Commandments. Rather, opinions "must be read in the setting of the particular cases and as the product of preoccupation with their special facts."[2] The "precedential value of a judicial opinion is limited to the question presented by the facts of the case before the court."[3]

Stare decisis is "a principle of policy" and not a mechanical formula of adherence to a prior decision, however questionable.[4] While the doctrine is not to be lightly cast aside, a court should not hesitate to overrule its precedents "when persuaded by the 'lessons of experience and the force of better reasoning.'"[5] Adherence to a precedent "should depend upon its continuing practicality and the demands of justice."[6]

As Chief Judge Charles Breitel explained, "Invariably, the concern is with the exercise of restraint in overturning established well-developed doctrine and, on the other hand, the justifiable rejection of archaic and obsolete doctrine which has lost its touch with reality."[7] The doctrine "was intended, not to effect a 'petrifying rigidity,' but to assure the justice that flows from certainty and stability. If, instead, adherence to precedent offers not justice but unfairness, not certainty but doubt and confusion, it loses its right to survive, and no principle constrains us to follow it."[8]

The Court of Appeals has observed that it acts "in the finest common-law tradition when we adapt and alter decisional law to produce common-sense justice."[9] And, as Judge Benjamin Cardozo put it, "If judges have woefully misinterpreted the mores of their day, or if the mores of their day are no longer those of ours, they ought not to tie, in helpless submission, the hands of their successors."[10]

In his lecture on "Adherence to Precedent," Cardozo observed that "the labor of judges would be increased almost to the breaking point if every past decision could be reopened in every case, and one could not lay one's own course of bricks on the secure foundation of the courses laid by others who had gone before him."[11] However, this does not mean courts should slavishly follow an earlier decision "where it can be shown that the law has been misapplied, or where the former determination is evidently contrary to reason"[12] or "out of step with the times and the reasonable expectations of members of society."[13] In such cases, "where justice demands it," it is not only the right but "the duty of courts to re-examine the question."[14]

Not all precedents are accorded equal deference; some are more susceptible to being overruled than others. Thus, where the interpretation of the Constitution is at issue, courts are more prone to correct an error stemming from an earlier decision than they are in cases involving statutory provisions where Congress or a state Legislature can readily correct any perceived misinterpretation by the court of the legislative intent.[15] But courts will not be bound by aberrant interpretations inconsistent with a long line of well-reasoned opinions. In such cases, "the courts need not wait for the Legislature to repair the damage."[16]

Examining the Source

The source of the existing rule is a significant consideration. "When the courts themselves have originated the rule, as for instance a common-law rule of tort, the courts will more readily re-examine it and, if necessary, set it aside."[17]

Tort cases, especially those involving personal injuries, are examples of where "courts will, if necessary, more readily re-examine established precedent to achieve the ends of justice in a more modern context,"[18] than in cases involving real property, the interpretation of wills and commercial transactions where "the need for stability and predictability in the law outweigh the need to purge an erroneous decision."[19] "[R]ules of law on which men rely in business dealings should not be changed in the middle of the game, but…[that has nothing] to do with bringing to justice a tort feasor who surely has no moral or other right to rely on a decision of the New York Court of Appeals."[20] Examples of the court's willingness to bring tort common law into conformity with present day conditions abound.

In Welch v. Schiebelhuth[21], the complaint alleged that Joan Welch purchased a cake baked in defendant's bakery and that her husband and guests of theirs (the husband's brother and mother) became ill as a result of eating the cake which was found to contain certain toxic matter. The court granted plaintiffs' motion to amend their complaint to add a cause of action for breach of an implied warranty of quality and wholesomeness in the sale of food, despite the lack of privity of contract between the seller and the injured parties. "The law is not static, but dynamic, and it is the duty of our courts to bring the law abreast of present-day standards of wisdom and justice…. Our…[common] law cannot hope to survive by stubborn adherence to decisions written for a different world. We cannot and should not apply seventeenth and eighteenth century rules to twentieth century conditions."

These same sentiments led the Court of Appeals, in Gallagher v. St. Raymond's Roman Catholic Church[22], to "purify our law of what has, with the passage of time, become a most anomalous exception to the general common-law rule of due care," which held that there was no duty to illuminate an exterior stairway "with artificial light, in the absence of defective conditions, or conditions of peculiar danger, that may call for special warning."[23] The court held that the owner of a public building is under a duty to keep exterior steps illuminated so as to provide the public with a safe means of ingress and egress. The court explained how it reached its result.

It is saying the obvious but it bears repetition that whether a society will tolerate a particular course of conduct is, to a large measure, dependent upon the development of society at the particular moment when the courts are called upon to enunciate a proper standard of care. We can conceive of no reason why at the present time the owner of a public building should not be required to light the exterior of his building at those times when it is open to the public. The traditional rule no longer expresses a standard of care which accords with the mores of our society. The public is entitled to a safe and reasonable means to enter and exit from an open public building. In this day and age, this should mean a lit path or stairway to the street…Few public buildings are now without exterior illumination. People, especially the elderly, should not be required to risk their health or lives groping in the dark hoping to find a handrail by which they might guide themselves in safety to the public sidewalk. The burden on the owner for taking this simple precaution, in terms of the cost of electricity and maintenance, is slight compared to the injuries or worse that can be avoided.[24]

In Buckley v. City of New York[25], the Court of Appeals abolished the fellow-servant rule under which an employee, injured by a fellow employee in the workplace, has no recourse against the employer in respondeat superior, stating: "The rule had its birth in the 19th century, was severely crippled with the advent of workers' compensation [where the rule is no defense to a Worker's Compensation claim], and was dealt an almost fatal blow in this state in Poniatowski. Today, in rejecting this rule entirely, we inter its remains." The court pointed out that "[w]hile the longevity of a rule requires that its re-examination be given careful scrutiny, it does not demand that its effect be given permanence. The continued vitality of a rule of law should depend heavily upon its continuing practicality and the demands of justice, rather than upon its mere tradition."[26]

Woods v. Lancet[27], a medical malpractice action, is another example of how "the common law has been molded and changed and brought up-to-date." In Woods, a 1951 case, the infant plaintiff was in his mother's womb during the ninth month of her pregnancy when, through the negligence of defendant, he sustained serious injuries that caused him to be permanently disabled. Defendant moved to dismiss the complaint as not stating a cause of action, taking the position that its allegations, though true, gave the infant no right to recover damages under then prevailing New York law. Special Term granted the motion and dismissed the suit, citing Drobner v. Peters[28], a case indistinguishable from Woods. The Appellate Division affirmed, with one justice voting for reversal with an opinion in which he described the obvious injustice of the rule, noted a decisional trend (in other states and Canada) toward giving relief in such cases, and suggested that since Drobner was decided 30 years ago by a divided vote, the Court of Appeals might well re-examine it.

Court of Appeals Judge Charles Desmond, writing for the majority in Woods, stated the issue before the court as follows: "It will hardly be disputed that justice (not emotionalism or sentimentality) dictates the enforcement of such a cause of action. The trend in decisions of other courts, and the writings of learned commentators, in the period since Drobner was handed down in 1921, is strongly toward making such a recovery possible. The precise question for us on this appeal is: Shall we follow Drobner, or shall we bring the common law of this state, on this question, into accord with justice?"[29]

Justice trumped outmoded precedent, and the court reversed the judgment below, with Desmond borrowing the following colorful passage "from our British friends": "When the ghosts of the past stand in the path of justice clanking their medieval chains, the proper course for the judge is to pass through them undeterred."[30] Judge Edmund Lewis dissented. Although he agreed with the majority that "prenatal injury to the child should not go unrequited by the one at fault," he believed that the change in the law should come from the Legislature.[31]

Composition of Court

Finally, neither the closeness of a vote in a precedential case nor a change in the membership of the court furnishes any justification for reopening a settled legal controversy. "The authoritative force of a decision as a precedent in succeeding cases is not determined by the unanimity or division in the court. The controversy settled by a decision in which a majority concur should not be renewed without sound reasons…"[32] And, as Breitel put it, "the accident of a change of personalities in the judges of a court is a shallow basis for jurisprudential evolution."[33] "Only a major reappraisal by the court, rather than the accident of a change in its composition, would justify the overruling of [a] precedent."[34]

Thomas R. Newman is of counsel to Duane Morris and author of 'New York Appellate Practice' (Matthew Bender). Steven J. Ahmuty, Jr. is a partner at Shaub, Ahmuty, Citrin & Spratt.


  1. People v. Bing, 76 N.Y.2d 331, 337-338 (1990).
  2. Danann Realty v. Harris, 5 N.Y.2d 317, 322 (1959).
  3. J.A. Preston Corp. v. Fabrication Enterprises, 68 N.Y.2d 397, 407 (1986); People v. Olah, 300 N.Y. 96, 101 (1949)("no opinion is an authority beyond the point actually decided and no judge can write freely if every sentence is to be taken as a rule of law separate from its association").
  4. Bing, supra, 76 N.Y.2d at 338; Helvering v. Hallock, 309 U.S. 106, 119 (1940).
  5. Ibid.
  6. Buckley v. City of New York, 56 N.Y.2d 300, 305 (1982).
  7. People v. Hobson, 39 N.Y.2d 479, 487 (1976).
  8. Ibid.
  9. Woods v. Lancet, 303 N.Y. 349, 355 (1951).
  10. The Nature of The Judicial Process, 152 (Yale Univ. Press 1921)(four lectures at Yale Law School by Benjamin N. Cardozo, then Associate Judge of the New York Court of Appeals, published in a book that is now considered a classic of judicial analysis, describing how judges arrive at their decisions).
  11. Id., at 149
  12. Matter of Eckart, 39 N.Y.2d 493, 499 (1976).
  13. People v. Hobson, 39 N.Y.2d 479, 489 (1976).
  14. Woods v. Lancet, supra, 303 N.Y. at 354-355; Rumsey v. New York & N.E. R.R., 133 N.Y. 79, 85 (1892).
  15. Hobson, supra, 39 N.Y.2d at 488; Illinois Brick v. Illinois, 431 U.S. 720, 736 (1977).
  16. Eckart, supra, 39 N.Y.2d at 499.
  17. Eckart, supra, 39 N.Y.2d at 499.
  18. Hobson, supra, 39 N.Y.2d at 488.
  19. Eckart, supra, 39 N.Y.2d at 499 ("Some precedents are more durable than others").
  20. Woods, supra, 303 N.Y. at 354.
  21. 11 Misc.2d 312, 317 (Sup. Ct., Kings Co. 1957).
  22. 21 N.Y.2d 554 (1968). The successful plaintiff was represented by Benjamin H. Siff, the originator of this column in December 1971 and a founder of Siff & Newman.
  23. Id., at 556, citing McCabe v. Mackay, 253 N.Y. 440, 442 (1930).
  24. Id. 21 N.Y.2d at 558.
  25. 56 N.Y.2d 300 (1982).
  26. Id., 56 N.Y.2d at 304-305; Poniatowski v. City of New York, 14 NY2d 76 (1964).
  27. 303 N.Y. 349, 354 (1951).
  28. 232 N.Y. 220 (1921).
  29. 303 N.Y. at 355.
  30. 303 N.Y. at 355.
  31. 303 N.Y. at 357 (dissent).
  32. Semanchuck v. Fifth Avenue & 37th St. Corp., 290 N.Y. 412, 420 (1943).
  33. Hobson, supra, 39 N.Y.2d at 491.
  34. Simpson v. Loehmann, 21 N.Y.2d 305, 314 (1967)(Breitel, J., concurring opinion).

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