Can Comparative Negligence be Used as a Defense to an Intentional Act?

When you are injured because of someone’s negligence, they are allowed to claim that you, as the victim, were also negligent, and that it was actually you who caused the accident or your own injuries, in full or in part.

If they are correct, your verdict in trial could be reduced by the percentage that you are found to have caused your own injuries–and in fact, if you are found to be 50% or more at fault for the accident or your injuries, you could end up recovering nothing at all.

That’s why it’s easy to see why defendants love alleging comparative negligence. It gives them an avenue to put blame on you, and potentially to walk away from the accident owing you nothing.

Intentional Torts

But that’s a defense to negligence claims. What about intentional torts?

As the name implies, an intentional tort is something that someone does purposefully. This may be a battery, a sexual battery, an attack, or some other act that isn’t “an accident,” but rather is a purposeful action.

Can the Defendant Allege Comparative Negligence?

By law, a Defendant who is alleged to have committed an intentional tort, cannot use comparative negligence as a defense.

That just doesn’t make logical sense. Someone can’t have acted negligently to cause an accident, when the action alleged to have caused the injury or harm, isn’t an accident in the first place. As a victim, you cannot “contribute” to or cause someone else’s purposeful, knowing and intentional act.

And when it comes to intentional acts, the Defendant cannot “victim blame,” the way it can in negligence cases.

For example, if a store security guard hits and injures you, the store cannot say that you didn’t answer the security guard’s questions, thus “causing” him to hit you. In sexual abuse cases, it would clearly be inappropriate, if not completely offensive, to allow an abuser to say that a victim did anything to cause the assault, such as wearing provocative clothes.

Intentional and Negligence Claims

There are times when a complaint in a personal injury suit, will allege both an intentional harm, as well as negligence–an accident. If that is the case, then the Defendant could use comparative negligence as a defense, although only as a defense to the negligence claim brought against it.

Other Defenses

Although the Defendant cannot use comparative negligence as a defense in intentional tort cases, that doesn’t mean that they cannot use other defenses. One of the main ones is that the actions taken were justified or necessary. Take, for example, someone who is beaten by a bouncer at a bar and sues; the bar would likely say that the force was necessary if the victim’s behavior warranted it.

All of this won’t stop Defendants from using comparative negligence in intentional tort cases as a defense. It’s up to you, through your injury attorney, to tell the court that these kinds of defenses cannot be used.

Injured by an intentional tort or purposeful act? Call our Boston personal injury lawyers at The Law Office of Joseph Linnehan, Jr. today at 617-275-4200.

Source:

opencasebook.org/casebooks/2566-torts/sections/20-xviii-defenses-contributory-and-comparative-fault/