Document Type

Article

Publication Title

Vanderbilt Law Review

Publication Date

1993

Abstract

All or nothing. For years this idea of absolutes has been a hallmark of tort law despite the inequities it has caused. Plaintiffs must either win a total victory or suffer total defeat. In recent years courts and legislatures have begun to recognize the injustice of the all-or-nothing approach and to replace it with rules that permit partial recoveries that are more equitably tailored to the particular facts of each case. The most dramatic example of this more equitable approach is the nearly universal rejection of contributory negligence in favor of comparative fault in negligence cases. Almost all jurisdictions, however, still refuse to use comparative fault when defendant is alleged to have committed an intentional tort; in that case, the all-or-nothing approach still prevails. Admittedly, the perpetrators of certain intentional torts should not benefit from comparative fault rules: why, for example, should a thief be able to avoid paying the full value of the items he stole by proving that the victim was careless in leaving her possessions unguarded? On the other hand, it takes little imagination to conceive of intentional tort situations in which resort to comparative fault is quite appealing. To use an example familiar to many law students, a defendant who, while legally hunting wolves, shoots at, hits, and kills plaintiff's dog, which looks exactly like a wolf, has committed an intentional tort. The dog's owner may recover the full value of the dog even though defendant reasonably believed he was shooting a wolf. But what if the dog owner was negligent in releasing his wolf-like dog during wolf-hunting season? Why should this negligence be ignored in determining the extent of defendant's liability? Had defendant been negligent (suppose, for example, he aimed at a wolf but carelessly hit plaintiff's dog), plaintiff's fault in releasing the dog would have been used either to reduce defendant's liability or to bar plaintiff from all recovery. Although the equities favor the morally innocent intentional tort defendant over both this negligent defendant and the negligent plaintiff, the law presently insists that the intentional tort defendant pay the negligent plaintiff in full but allows the negligent defendant either to escape without any liability or to pay for only part of the damage. The thesis of this Article is that comparative fault ought to govern the liability of my hypothetical wolf hunter, as well as the liability of the other defendants mentioned above and other similarly situated intentional tortfeasors. The reasons for using comparative fault in many intentional tort cases are discussed in Part II. Part III considers the justifications that have been offered to support the refusal to use comparative fault in these cases and finds them wanting. A system for determining when the use of comparative fault is appropriate in intentional tort cases is explained in Part IV. Part V explores the administrative costs that might be associated with the use of comparative fault in these cases

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