NCJ Number
141297
Journal
Vanderbilt Law Review Volume: 46 Issue: 1 Dated: (January 1993) Pages: 121- 174
Date Published
1993
Length
54 pages
Annotation
This article discusses reasons for using comparative fault in intentional tort cases, justifications offered to support the blanket prohibition on the use of comparative fault in intentional tort cases, when comparative fault should be used in intentional tort cases, and whether comparative fault would impose an untoward administrative burden.
Abstract
In cases in which both parties were at fault in causing plaintiff's injury, the courts have long endured the unreasonable position of having to ignore the fault of one party to the benefit of the other (all or nothing). Most jurisdictions have resolved this predicament in negligence and strict liability cases by using comparative fault. In the case of intentional torts, however, the courts continue to decide cases on an all-or-nothing basis, usually by ignoring the plaintiff's fault and imposing the entire liability on the defendant. With the advent of comparative fault, this remnant of the all-or-nothing approach should be reassessed. People, be they plaintiffs or defendants, should bear some responsibility for the injuries caused by their faulty conduct. This concept should apply in many intentional tort cases, when doing so recognizes the faults of both parties in the incident at issue. Still, there are instances in which a defendant's conduct is such that he should be prevented from complaining of the plaintiff's fault. When defendant wanted to inflict the damage of which the plaintiff complains, aware of facts under which he had no right to inflict such damage, or when defendant took advantage of the plaintiff's fault, defendant usually has used the plaintiff's fault for his own purposes and consequently has forfeited any right he had to complain about that fault. Most types of intentional tort cases, however, would be more fairly decided if the courts could consider the fault of both parties. 189 footnotes