DAVIES 

v. 

MANN.

Exch. of Pleas. Nov. 4, 1842.—The general rule of law respecting negligence is, that although there may have been negligence on the part of the plaintiff, yet unless he might by the exercise of ordinary care have avoided the consequences of the defendant's negligence, he is entitled to recover. Therefore, where the defendant negligently drove his horses and waggon against and killed an ass, which bad been left in the highway fettered in the fore-feet, and thus unable to get out of the way of the defendant's waggon, which was going at a smartish pace along the road, it was held, that the jury were properly directed, that although it was an illegal act on the part of the plaintiff so to put the animal on the highway, the plaintiff was entitled to recover.

[S.C. 12 L.J. Ex. 10; 6 Jur. 954. Applied, Dimes v. Petley, 1850, 15 Q. B. 276; Tuff v. Warman, 1858, 5 C.B. (N. S.) 573; The Bernina (2), 1887, 12 P. D. 89: affirmed nomine Mills v. Armstrong, 13 A.C. 1; The Altair, [1897] P. 105. Approved, Radley v. London and North Western Railway Company, 1876, 1 A.C. 759. Followed, Cayzer v. Canon Company, 1884, 9 A.C.  873. Explained, The Vera Cruz, 1884, 9 P.D. 94. Referred to, Armstrong v. Lancashire and Yorkshire Railway Company, 1875, L.R. 10 Ex. 52; Spaight v. Tedcastle, 1881, 6A.C. 226; Lee v. Nixey, 1890, 63 L.T. 286; The Highland Loch, [1911] P. 280.]

Case for negligence. The declaration stated, that the plaintiff theretofore, and at the time of the committing of the grievance thereinafter mentioned, to wit, on &c., was lawfully possessed of a certain donkey, which said donkey of the plaintiff was then lawfully in a certain highway, and the defendant was then possessed of a certain waggon and certain horses drawing the same, which said waggon and horses of the defendant were then under the care, government, and direction of a certain then servant of the defendant, in and along the said highway; nevertheless the defendant, by his said servant, so carelessly, negligently, unskilfully, and improperly governed and directed his said waggon and horses, that by and through the carelessness, negligence, unskilfulness, and improper conduct of the defendant, by his said servant, the said waggon and horses of the defendant then ran and struck with great violence against the said donkey of the plaintiff, and thereby then wounded, crushed, and killed the same, &c.

The defendant pleaded not guilty.

At the trial, before Erskine, J., at the last Summer As [10 M. & W. 547] sizes for the county of Worcester, it appeared that the plaintiff, having fettered the fore feet of an ass belonging to him, turned it into a public highway, and at the time in question the ass was grazing on the off side of a road about eight yards wide, when the defendant's waggon, with a team of three horses, coming down a slight descent, at what the witness termed a smartish pace, ran against the ass, knocked it down, and the wheels passing over it, it died soon after. The ass was fettered at the time, and it was proved that the driver of the waggon was some little distance behind the horses. The learned Judge told the jury, that though the act of the plaintiff, in leaving the donkey on the highway so fettered as to prevent his getting out of the way of carriages travelling along it, might be illegal, still, if the proximate cause of the injury was attributable to the want of proper conduct on the part of the driver of the waggon, the action was maintainable against the defendant; and his Lordship directed them, if they thought that the accident might have been avoided by the exercise of ordinary care on the part of the driver, to find for the plaintiff. The jury found their verdict for the plaintiff; damages 40s.

Godson now moved for a new trial, on the ground of misdirection. The act of the plaintiff in turning the donkey into the public highway was an illegal one, and, as the injury arose principally from that act, the plaintiff was not entitled to compensation for that injury which, but for his own unlawful act, would never have occurred. (Parke, B. The declaration states that the ass was lawfully on the highway, and the defendant bas not traversed that allegation; therefore it must be taken [152 Eng. Rep. 589] to be admitted.) The principle of law, as deducible from the cases, is, that where an accident is the result of faults on both sides, neither party can maintain an action. Thus, in Butterfield v. Forrester (11 East, 60), [10 M. & W. 548]it was held that one who is injured by an obstruction on a highway, against which he fell, cannot maintain an action, if it appear that he was riding with great violence and want of ordinary care, without which he might have seen and avoided the obstruction. So, in Vennall v. Garner (1 C. & M. 21), in case for running down a ship, it was held, that neither party can recover when both are in the wrong; and Bayley, B., there says, “I quite agree that if the mischief be the result of the combined negligence of the two, they must both remain in statu quo, and neither party can recover against the other.” Here the plaintiff, by fettering the donkey, had prevented him from removing himself out of the way of accident; had his fore feet been free, no accident would probably have happened. Pluckwell v. Wilson (5 Carr. & P. 375), Luxford v. Large (ibid. 421), and Lynch v. Nurdin (1 Ad. & E. (N. S.), 29; 4 P. & D. 672), are to the same effect.

LORD ABINGER, C. B. I am of opinion that there ought to be no rule in this case. The defendant has not denied that the ass was lawfully in the highway, and therefore we must assume it to have been lawfully there; but even were it otherwise, it would have made no difference, for as the defendant might, by proper care, have avoided injuring the animal, and did not, he is liable for the consequences of his negligence, though the animal may have been improperly there.

PARKE, B. This subject was fully considered by this Court in the case of Bridge v. The Grand Junction Railway Company (3 M. & W. 246), where, as appears to me, the correct rule is laid down concerning negligence, namely, that the negligence which is to preclude a plaintiff from recovering in an action of this nature, must be such as that he could, by [10 M. & W. 549]ordinary care, have avoided the consequences of the defendant's negligence. I am reported to have said in that case, and I believe quite correctly, that “the rule of law is laid down with perfect correctness in the case of Butterfield v. Forrester, that, although there may have been negligence on the part of the plaintiff, yet unless be might, by the exercise of ordinary care, have avoided the consequences of the defendant's negligence, he is entitled to recover; if by ordinary care he might have avoided them, he is the author of his own wrong.” In that case of Bridge v. Grand Junction Railway Company, there was a plea imputing negligence on both sides; here it is otherwise; and the Judge simply told the jury, that the mere fact of negligence on the part of the plaintiff in leaving his donkey on the public highway, was no answer to the action, unless the donkey's being there was the immediate cause of the injury ; and that, if they were of opinion that it was caused by the fault of the defendant's servant in driving too fast, or, which is the same thing, at a smartish pace, the mere fact of putting the ass upon the road would not bar the plaintiff of his action. All that is perfectly correct; for, although the ass may have been wrongfully there, still the defendant was bound to go along the road at such a pace as would be likely to prevent mischief. Were this not so, a man might justify the driving over goods left on a public highway, or even over a man lying asleep there, or the purposely running against a carriage going on the wrong side of the road.

GURNEY, B., and ROLFE, B., concurred.

Rule refused.

[80 Wn.2d 162] [492 P.2d 1031] Knapp & O'Dell, Hugh A. Knapp, Camas, Dusenbery, Martin, Bischoff & Templeton, Robert Glasgow, Portland, Or., for appellant.

Boettcher, La Londe, Kleweno, Lodge & Ladley, John L. La Londe, Vancouver, for respondent.

[492 P.2d 1032] HUNTER, Associate Justice.

The plaintiff, Lawrence Derheim (respondent), recovered a jury verdict for personal injuries incurred in a collision with a dump truck owned by defendant, N. Fiorito Company, Inc. (appellant), and operated by defendant's employee. Defendant's appeal to Division II of the Court of Appeals was certified to this court. Specifically, the so-called 'seat belt defense' is a principal issue in the case, and as this court has not addressed itself to the appropriateness of this defense in automobile litigation, the Court of Appeals concluded that a fundamental issue of broad public interest is presented.

The facts are as follows. On June 6, 1968, defendant construction company was engaged in performance of a highway improvement contract on a section of Interstate Highway 5 from Burnt Bridge Creek north to the Ridgefield junction, a distance of approximately 14 miles. The actual work was being performed by the defendant north of the 134th Street exit, approximately five miles north of Vancouver, Washington. Trucks were being loaded with dirt at a point approximately one mile from the 134th Street off ramp, and were then directed to proceed south along Interstate 5 to the off ramp, down this two-lane ramp roadway, under Interstate 5 for several hundred feet at which point they were to turn left across the end of two lanes of old Highway 99 (which two lanes joined the two-lane off ramp at that point), and across 15 feet of grass median to a [80 Wn.2d 163] parallel on ramp. At that point they turned north on the on ramp for approximately 600--800 feet to a dump area.

At approximately 1:20 in the afternoon, plaintiff, driving his 1959 Chevrolet in a southerly direction on Interstate 5, proceeded down the off ramp behind defendant's dump truck at a lawful rate of speed. Just north of the underpass, a sign stating 'End of Construction' was erected facing southbound traffic. The facts are in dispute as to whether two additional signs (one on each side of the roadway) stating 'Truck Crossing' were in place south of the underpass and approximately 500 to 600 feet north of the impact area.

The impact occurred when plaintiff, overtaking the defendant's truck, struck the left front of defendant's truck which was engaged in a left-turn maneuver preparatory to crossing the two lanes of old Highway 99 to reach the on ramp. There seems to be no dispute but that defendant's truck commenced its left turn from the right lane, swinging over to the right-hand shoulder of the road and back across both lanes to the left, or inside lane, at which point the impact occurred. The testimony conflicts as to whether or not the truck's left turn signal was on. Plaintiff received a fracture of his right kneecap and injury to his mouth.

Defendant assigns error to the giving of numerous instructions based upon the rules of the road, and the failure to instruct, under RCW 46.61.030 as it existed prior to amendment in 1969, that the rules of the road were inapplicable and only ordinary care need be exercised.

In particular, the court, by appropriate instructions, advised the jury that it is unlawful to turn from a direct course of travel or to move to the right or left upon a roadway unless such movement can be made with safety, (RCW 46.61.140(1) and 46.61.305(1)); that a driver must look to the rear prior to signaling for a turn to ascertain that such a turn can be made with safety, (Socony Mobil Corp. v. Forbes, 64 Wash.2d 369, 391 P.2d 971 (1964)); that one driving on a divided highway may not cross the divider or dividing space unless directed or permitted by official [80 Wn.2d 164] control devices or police officers, (RCW 46.61.150); that before turning, the operator of a motor vehicle must signal his intention to turn not less than 100 feet prior to commencement of turn, (RCW 46.61.305(2)); and that one intending to turn from a two-lane one-way roadway must approach the intended point of left turn in the extreme left-hand lane, (RCW 46.61.290(3)).

[492 P.2d 1033] If the rules of the road apply, the instructions given were correct. If not, defendant's proposed instructions, based upon RCW 46.61.030, and providing for a duty of ordinary care only, should have been given. The wording of RCW 46.61.030 in effect at the time of the accident is as follows:

Unless specifically made applicable, the provisions of this chapter except those contained in RCW 46.61.500 through 46.61.520 shall not apply to persons, teams, motor vehicles and other equipment while actually engaged in work upon the surface of a highway but shall apply to such persons and vehicles when traveling to or from such work.

This statute, by its terms, provides an exception to the rules of the road applicable to vehicular traffic on the roads and highways, allowing highway construction and maintenance work to proceed without public vehicular interference. In using the expression 'work upon the surface of a highway (or road)' and in excepting therefrom travel to and from the work area, it is apparent that the legislature was concerned with the movement of equipment and vehicles within the construction site area but was not excepting traffic traveling to and from the construction site. Here the vehicular traffic departing Interstate 5 on the 134th Street off ramp, was advised that they were leaving the construction area by the sign 'End of Construction'. Under these circumstances, the presence or absence of 'Truck Crossing' signs further down the highway, with their dubious effectiveness in warning motorists that some 500 to 600 feet beyond, a truck traveling in the right-hand lane might be expected to turn abruptly broadside across the left-hand [80 Wn.2d 165] lane, would not tend to establish exemption from the rules of the road under the statutory provision.

With regard to the possible superfluity of the trial court's instruction No. 13^[1], set forth in footnote below and based upon RCW 46.61.295, we note that while the defendant would have us interpret this so-called U-turn statute as applying only when one changes direction in the same roadway, the harm or danger which this statute is concerned with is equally existent in a change of direction maneuver such as was attempted here. The court also takes judicial notice that 'No U-Turn' signs are posted along divided portions of Interstate 5 prohibiting vehicles from reversing direction by crossing the grass divider from one roadway to another. The truck driver testified that his turn maneuver was one continuous turn to the left, as sharp as the truck turning radius would permit, so as to proceed in the opposite direction on the adjoining on ramp. We cannot see how the jury could have been misled by this statute and accordingly find no error in the giving of instruction No. 13.

While principally taking the position that the rules of the road were not applicable, the defendant also assigns error to the trial court's refusal to instruct the jury that a driver turning to the left may lawfully use such portion of the highway as may be necessary to make an intended left turn. Defendant bases this contention upon a rule of the road, RCW 46.61.290(3), as follows:

Left turns on other than two-way roadways. At any intersection where traffic is restricted to one direction on one or more of the roadways, the driver of a vehicle intending to turn left at any such intersection shall approach the intersection in the extreme left-hand lane lawfully available to traffic moving in the direction of [80 Wn.2d 166] travel of such vehicle and after entering the intersection the left turn shall be made so as to leave the intersection, [492 P.2d 1034] as nearly as practicable, in the left-hand lane lawfully available to traffic moving in such direction upon the roadway being entered.

Defendant misinterprets the statute. The accident site herein was not an intersection, and any degree of variance in making a turn is allowed with reference to the roadway being entered rather than the roadway from which the turn is commenced.

We therefore turn to the principal issue for consideration in this case. This issue was presented to the trial court in the following manner. Shortly before the trial commenced, defendant filed an amended answer raising the issue of contributory negligence on the part of the plaintiff for failure to wear an available seat belt and to sound the horn. The trial court allowed the amendment insofar as the horn was concerned, but denied the portion relating to the seat belt issue. In addition the trial court ruled, on plaintiff's motion in limine, that during the trial the defendant was prohibited from making any reference to plaintiff's failure to wear a seat belt. These pretrial rulings are assigned as errors. Specifically, defendant asserts that the plaintiff's failure amounted to contributory negligence, or in the alternative, that evidence should have been admitted in mitigation of damages or in proof of an avoidable consequence.

By way of offer of proof, defendant offered plaintiff's admission that his 1959 Chevrolet was equipped with seat belts and that he was not wearing one at the time of the accident. The defendant offered testimony of Dr. William Snell, a physician and surgeon in charge of the Department of Orthopedics at the University of Oregon Medical School, to the effect that plaintiff's knee injury would not have been sustained if his seat belt had been properly fastened. In response to a hypothetical question which assumed the relevant facts, including the use of a properly buckled seat strap, the doctor testified as follows:

[80 Wn.2d 167] A. Fine. Then my opinion is that he would not have sustained this knee injury had the seat belt been properly fitted. Q. Can you explain that? A. Yes, this is--as I mentioned previously, is a very common injury, automobile injury, with deceleration from the automobile striking something in front of it, and the passenger goes forward, and he's in a semi-sitting position, and the first thing that arrests him is when his knee hits the dash. If the force then is sufficient the next thing will usually be his head comes forward and hits either the wheel, or the windshield. And again depending upon the force, that may be the extent of it, or if it's more extensive he may go right on out the windshield. People that have--that wear seat belts do sustain injuries that are rather peculiar to them, but they are usually not severe, and as a result you can sort of catalog patients with this particular injury depending upon whether they are wearing seat belts or not.

We are thus called upon to determine the rule in this state with respect to the so-called 'seat belt defense'. No subject in the field of automobile accident litigation, with the possible exception of no-fault insurance, has received more attention in recent years than has the seat or lap belt defense. The question being one of first impression in this state, we have reviewed the published material extensively, concluding that while the research and statistical studies indicate a far greater likelihood of serious injuries in the event of nonuse, nevertheless the courts have been inconsistent in their handling of the defense.^[2] [492 P.2d 1035] This inconsistency seems to result from the fact that the defense does not fit conveniently into the familiar time-honored doctrines traditionally used by the courts in deciding tort cases. Thus, [80 Wn.2d 168] the conduct in question (failure to buckle up) occurs Before the defendant's negligence, as opposed to contributory negligence which customarily is thought of in terms of conduct contributing to the accident itself. While more precisely, contributory negligence is conduct contributing, with the negligence of the defendant in bringing about the plaintiff's harm, it is a rare case indeed where the distinction need be made. Furthermore, while states with comparative negligence do not have the problem to the same extent, contributory negligence in many states (such as Washington) is a complete bar to any recovery by a plaintiff-an obvious unjust result to apply in seat belt cases. The same result would be reached if the defense were presented in terms of assumption of risk, that is, that one who ventures upon the highway without buckling up is voluntarily assuming the risk of more serious injuries resulting from a possible accident proximately caused by the negligence of another.

The doctrine of avoidable consequences has been suggested as a possible solution to this conceptual dilemma, but here again, the problem is one of appearing to stretch the doctrine to fit an unusual fact pattern. As a legal theory, avoidable consequences is closely akin to mitigation of damages, and customarily is applied when plaintiff's conduct After the occurrence fails to meet the standards of due care. Moreover, courts have traditionally said that a defendant whose negligence proximately causes an injury to plaintiff, 'takes the plaintiff as he finds him.'

The practical implications of allowing seat belt evidence, has also given the courts pause. For example, most automobiles are now manufactured with shoulder straps in addition to seat belts, and medical evidence could be anticipated in certain cases that particular injuries would not have [80 Wn.2d 169] resulted if both shoulder belts and seat belts had been used. Additionally, many automobiles are now equipped with headrests which are designed to protect one from the so-called whiplash type of injury. But to be effective, its height must be adjusted by the occupant. Should the injured victim of a defendant's negligence be penalized in ascertainment of damages for failure to adjust his headrest? Furthermore, the courts are aware that other protective devices and measures are undergoing testing in governmental and private laboratories, or are on the drawing boards. The concern is, of course, that if the seat belt defense is allowed, would not the same analysis require the use of all safety devices with which one's automobile is equipped. A further problem bothers the courts, and that is the effect of injecting the seat belt issue into the trial of automobile personal injury cases. The courts are concerned about unduly lengthening trials and if each automobile accident trial is to provide an arena for a battle of safety experts, as well as medical experts, time and expense of litigation might well be increased.

These problems, legal and practical, are found in reviewing the most recent cases decided by other jurisdictions confronting the issue. In 1966, the Supreme Court of South Carolina held in Sams v. Sams, 247 S.C. 467, 148 S.E.2d 154 (1966), that a defendant should be allowed to prove, if he can, that the failure of the plaintiff to use a seat belt under the facts and circumstances of the case amounted to a contributing [492 P.2d 1036] cause of plaintiff's injuries, as opposed to the trial court's striking of the defense simply on the pleadings. The following year, the Supreme Court of Wisconsin in Bentzler v. Braun, 34 Wis.2d 362, 149 N.W.2d 626 (1967), concluded that there is a common law duty to use available seat belts, and that where credible evidence is presented by one qualified to express the opinion of how the use or nonuse of seat belts would have affected the particular injuries, the jury should be instructed in this regard.

In 1968, the Supreme Court of North Carolina decided a leading case in this area, Miller v. Miller, 273 N.C. 228, 160 [80 Wn.2d 170] S.E.2d 65 (1968). There, the plaintiff, a passenger, sued the driver for personal injuries incurred when the car negligently left the road. The defendant, asserting that plaintiff failed to buckle an available seat belt which, if buckled would have prevented the injuries, alleged no unusual circumstances prior to the accident which created any hazard over and above the ordinary risks incident to highway travel. The court held that, since there is no statutory or common law duty to wear seat belts in routine travel, the defendant had alleged no facts which would constitute contributory negligence or breach of the duty to minimize damages. Also in 1968, the Supreme Court of Oregon reached the same result, deferring to its legislature to resolve the question of whether or not available seat belts should be worn. Robinson v. Lewis, 254 Or. 52, 457 P.2d 483 (1968).

In 1969, the New Jersey Supreme Court in Dziedzic v. St. John's Cleaners & Shirt Laund., Inc., 53 N.J. 157, 249 A.2d 382 (1969), only tangentially touching upon the seat belt issue with reference to a passenger who was standing in a delivery truck at the time of a collision, expressly refused to decide if a reasonable man would fasten an available seat belt, but based its holding on the lack of evidence of causation of injury sustained by such omission.

In 1970, the Alabama Supreme Court, after a detailed analysis of the case law to date, held that evidence of failure to wear available seat belts is inadmissible to mitigate damages or in proof of avoidable consequences, and that the admission of the evidence was tantamount to the adoption of comparative negligence. The court was careful to point out, however, that it was not faced with, and actually was reserving its decision on, the question of whether nonuse of seat belts may constitute contributory negligence, since the case was tried solely on a wanton negligence theory. Britton v. Doehring, 286 Ala. 498, 242 So.2d 666 (1970).

The Supreme Court of Mississippi held in 1971, in a case where the defense was raised but no evidence introduced as [80 Wn.2d 171] to whether or not the sue of a seat belt would have affected the injuries received, that the plaintiff was not guilty of comparative negligence as a matter of law for failure to avail herself of an available seat belt, and the question was properly kept from the jury by the trial court. D. W. Boutwell Butane Co. v. Smith, 244 So.2d 11 (Miss.1971).

The same divergence of approach is noted in law review articles and texts. See 47 Or.L.Rev. 204, 213 (1968); 10 Ariz.L.Rev. 523, 535 (1968), and 38 Fordham L.Rev. 94, 103 (1969). Also see W. Prosser, Handbook of the Law of Torts, 423 (4th ed. 1971); 2 Restatement (Second) of Torts § 465 (1965).

We believe the cases in those jurisdictions rejecting the 'seat belt defense' are the better reasoned cases. It seems extremely unfair to mitigate the damages of one who sustains those damages in an accident for which he was in no way responsible, particularly when, as in this jurisdiction, there is no statutory duty to wear seat belts.

Moreover, in the state of Washington the installation of seat belts is required only in cars sold in this state manufactured after 1964. RCW 46.37.510. The problem of unequal [492 P.2d 1037] treatment of owners and occupants of motor vehicles immediately arises. To charge a person with negligence for failure to wear an available seat belt and thereby require a mitigation of his damages resulting therefrom, would constitute preferential treatment to owners of vehicles who failed to have their cars equipped with seat belts, and passengers who knowingly entered cars not equipped with seat belts who sustained injuries. Under the proposed rule, no mitigation of their damages resulting from their failure to wear seat belts would be required. The resolution of this problem encompasses the legislative judgment of whether all vehicles on the roads or highways should be equipped with seat belts.

In addition, the state of Washington has not adopted the doctrine of comparative negligence. As viewed by the court of Alabama, Britton v. Doehring, Supra, the admission of evidence on the 'seat belt defense' issue is tantamount to [80 Wn.2d 172] adopting the rule of comparative negligence. Also see D. W. Boutwell Butane Co. v. Smith, Supra. This poses a question of a change in public policy as to the doctrine of comparative negligence, which issue is not properly before us in this case.

For the reasons heretofore stated, we believe the trial court was correct in refusing admission of evidence on the 'seat belt defense.'

The judgment of the trial court is affirmed.

HAMILTON, C.J., and FINLEY, ROSELLINI, HALE and WRIGHT, JJ., concur.

UTTER, J., not participating.

NEILL, Associate Justice (concurring).

I have not subscribed the majority opinion due to reservations about some of the language employed therein. My concern is that the majority opinion, broadly read, could be taken as relieving a plaintiff from any legal consequences of a breach of his own duties of self-protection, even when such results in an apportionable exacerbation of the harm suffered in an accident, so long as that breach is not a contributing cause of the accident. I am not at all convinced that such a position would be correct; and I do not think it necessary to reach that point in disposing of this appeal.

I concur in the result of the majority opinion because, as noted by the majority, the legislature has not seen fit to impose an affirmative duty to wear seat belts. And I am not prepared to declare a common law duty to wear seat belts while traveling in motor vehicles. Therefore, I agree with the affirmance on the basis that a failure by plaintiff to wear a seat belt would not, in the present state of things, amount to a breach of his duty to exercise reasonable care in his own behalf.

STAFFORD, J., concurs.

[1] Instruction No. 13: 'The laws of the State of Washington provide that no vehicle shall be turned so as to proceed in the opposite direction upon any curve, or on the approach to or near the crest of a grade where such vehicle cannot be seen by the driver of any other vehicle approaching from either direction within five hundred feet within a residence or business district, and within one thousand feet in all other directions.'

[2] A complete list of cases dealing with the seat belt defense is found in a symposium on the seat belt defense reported in 53 Marq.L.Rev. 172, 226 (1970). To this list we would add the most recent cases, following in alphabetical order: Britton v. Doehring, 286 Ala. 498, 242 So.2d 666 (1970); Clark v. State, 28 Conn.Supp. 398, 264 A.2d 366 (1970); D. W. Boutwell Butane Co. v. Smith, 244 So.2d 11 (Miss.1971); Dziedzic v. St. John's Cleaners & Shirt Laund., Inc., 53 N.J. 157, 249 A.2d 382 (1969); Estate of Abrams v. Woods, 64 Misc.2d 1093, 316 N.Y.S.2d 750 (1970); Genger v. Campbell, Or., 469 P.2d 776 (1970); Henderson v. United States, 429 F.2d 588 (10th Cir. 1970); MacDonnell v. Kaiser, 68 D.L.R.2d 104 (1968); Miller v. Haynes, 454 S.W.2d 293 (Mo.App.1970); Petersen v. Klos, 426 F.2d 199 (5th Cir.1970).

An even longer list of annotations and recent articles on the seat belt defense is contained in an appendix bibliography commencing on page 227 in the above referenced law review article.

REVERSED AND REMANDED FOR NEW TRIAL.

Townley Price, James E. Frasier, Steven R. Hickman, Frasier, Frasier & Hickman, Tulsa, for Appellant.

Marthanda J. Beckworth, Walter D. Haskins, Atkinson, Haskins, Nellis, Boudreaux, Holeman, Phipps & Brittingham, Tulsa, for Appellee.

OPINION

STUBBLEFIELD, Judge.

Plaintiff appeals from judgment on jury verdict entered in favor of defendant in a medical negligence action. Defendant doctor has appealed from the order assessing costs. Based on our review of the record on appeal and applicable law, we reverse.

David Fritts was seriously injured in a one-vehicle accident, which occurred during the early morning hours of February 20, 1990. David Fritts and his friend, David Manus, had been drinking prior to the accident. There was some dispute about which one of the two men was driving the Fritts pickup truck at the time of the accident. In any event, the vehicle hit a tree at approximately seventy miles per hour and overturned.

David Fritts sustained serious injuries as a result of the accident. He was diagnosed with a Lefort II fracture--literally all of his major facial bones were broken. He was placed in intensive care due to concern over the impact injury to his chest but later moved into a regular room.

On February 25, 1990, Fritts was scheduled to undergo surgery for repair of his facial fractures.^[1] Although an oral surgeon was to perform the facial repairs, Defendant, Dr. Richard McKinne, an otorhinolaryngologist, was called on to assist the oral surgeon by performing a tracheostomy to allow Fritts to breathe during surgery. He was also to repair damage, if it existed, to Fritts' sinuses.

As Dr. McKinne started the tracheostomy, Fritts began bleeding profusely from a cut or rupture of the innominate artery. The tracheostomy was not completed, and the rest of the surgery was delayed. Fritts lost a major amount of blood, failed to regain consciousness [934 P.2d 373] and died in the hospital some three days later.

Plaintiff Beth Ann Fritts, surviving spouse of David Fritts, deceased, filed this wrongful death action. She originally named other parties, but we are concerned here only with the claim against Dr. McKinne, which proceeded to jury trial.

Plaintiff claimed that Dr. McKinne violated the standard of care in performing the tracheostomy in that he failed to properly identify and isolate the innominate artery. As a result, he cut the artery and then failed to promptly and properly arrest the loss of blood while waiting for a vascular or thoracic surgeon to arrive. She claimed that her husband died from complications associated with the massive blood loss.

Dr. McKinne denied negligence. He further asserted that the problems encountered during the tracheostomy resulted from the fact that Fritts had an anomalous innominate artery--it was found up in his neck area, when normally it should have been in the chest. Dr. McKinne maintained that the artery was injured during the accident and that the injury was subclinical--not evident from physical examination or x-ray studies. He claimed that, when he started the tracheostomy and removed tissue from the trachea, the weakness and injury in the innominate artery resulted in a rupture of the blood vessel, which caused a "horrendous gush of blood."

The Doctor also asserted a comparative negligence defense based on the contention that Fritts was injured while driving drunk or was drunk while riding in a vehicle with Manus, who also was drunk.^[2] In apparent response, Plaintiff filed a motion in limine, requesting the trial court to exclude any mention of Fritts' use of drugs or alcohol. Plaintiff admitted that Dr. McKinne should be allowed to introduce evidence about injury to her husband's artery during the accident. However, she asserted that evidence of her husband's intoxication, at the time of the accident, was not admissible to prove his negligence and was inflammatory.

Dr. McKinne objected to the motion in limine claiming that such evidence was (1) relevant to the issue of Fritts' comparative negligence--"[his] injury arose in the automobile accident that he caused, because he was either driving drunk or elected to ride with somebody that [sic ] was driving drunk," and because "[his] negligence was the sole cause of his death;" and, (2) relevant to the issue of damages--he would present expert testimony that Fritts had a substantially diminished life expectancy due to his drug and alcohol use. The trial court denied the motion.

At trial, over Plaintiff's objection, counsel for Dr. McKinne introduced, through various witnesses and exhibits, evidence regarding Fritts' past history of and treatment for substance abuse^[3] and his consumption of alcohol on the night of his automobile accident. Indeed, the use of alcohol on the night of the accident and the history of substance abuse became the principal focus of the doctor's defense. Also over Plaintiff's objection, the trial court instructed the jury on the issue of Fritts' comparative negligence. These instructions included an instruction on "General Duty of Drivers," which stated that "[i]t is the duty of the driver of a motor vehicle to use ordinary care to prevent injury to himself or to other persons."

The jury returned a verdict in favor of Dr. McKinne. The trial court entered judgment on this verdict and also awarded Dr. McKinne costs in the amount of $3,579.18. Plaintiff appeals from the judgment entered on jury verdict, and Dr. McKinne counter-appeals, claiming that the trial court erred in failing to award him the entire amount of requested costs--$11,092.29.

Plaintiff raises two interrelated propositions of error on appeal. She claims that the trial court erred in admitting evidence regarding her deceased husband's history of substance abuse and in allowing the jury to [934 P.2d 374] consider comparative negligence--based on the events of the automobile accident--as a basis for reducing or denying recovery on the medical negligence claim. According to Plaintiff, her husband's drug and alcohol problems and his negligence with regard to the automobile accident were not relevant to the medical negligence claim, were highly prejudicial, and instructing the jury on such issues was reversible error. For the following reasons, we must agree.

We first address the proposition regarding comparative negligence--whether it was proper for the trial court to allow the jury to consider the matter of the decedent's possible negligence in the accident which led to his hospitalization and medical treatment. To establish a case of medical negligence, Plaintiff was required to show that Dr. McKinne's actions were below the requisite standard of care and that such acts resulted in her husband's death. See Boxberger v. Martin, 552 P.2d 370 (Okla.1976); Robertson v. LaCroix, 534 P.2d 17 (Okla.Ct.App.1975). Dr. McKinne denied that his treatment of Fritts deviated in any manner from the appropriate standard of care. He defended against the allegations of negligence by contending that, due to Fritts' unusual anatomy and the resultant injury to his artery from the high speed impact, the rupture of the artery was inevitable. This was a proper and appropriate defense. However, we conclude that the interjection of the issue of Fritts' possible negligence in the automobile accident, a matter unrelated to the medical procedures, was a substantial error that removed the jury's consideration from the relevant issues and led to an erroneous excursion into irrelevant and highly prejudicial matters.

There are limited circumstances under which reasonableness of patient conduct can be an appropriate consideration in medical negligence cases. For example, evidence of a patient's failure to reveal medical history that would have been helpful to his physician raises the issue of contributory negligence, particularly where the evidence also shows that the patient may have been advised of the importance of this information. Graham v. Keuchel, 847 P.2d 342, 358 n. 78 (Okla.1993). A patient's furnishing of false information about his condition, failure to follow a physician's advice and instructions, or delay or failure to seek further recommended medical attention also are appropriate considerations in determining contributory negligence.^[4] Under certain circumstances, a patient's actions prior to seeking medical attention properly may be considered as evidence of contributory negligence. Sales v. Bacigalupi, 47 Cal.App.2d 82, 117 P.2d 399 (1 Dist.1941) (in action against physician for malpractice in treating infection to plaintiff's foot after she stepped on a nail, whether patient was contributorily negligent in her attempts to first treat foot herself was for jury). There is nothing akin to any of these factual situations in this case.

Under the guise of a claim of contributory negligence, a physician simply may not avoid liability for negligent treatment by asserting that the patient's injuries were originally caused by the patient's own negligence. "Those patients who may have negligently injured themselves are nevertheless entitled to subsequent non-negligent medical treatment and to an undiminished recovery if such subsequent non-negligent treatment is not afforded." Martin v. Reed, 200 Ga.App. 775, 409 S.E.2d 874, 877 (1991).

Thus, aside from limited situations, negligence of a party which necessitates medical treatment is simply irrelevant to the issue of possible subsequent medical negligence. Herein, Dr. McKinne testified that, at the time of the surgery, which was five days after the accident, "alcohol was not a problem." Yet, from the time of his opening statement, the principal focus of the doctor's counsel was on the behavior of the decedent before and leading up to the automobile accident:

[T]he evidence in this case, Ladies and Gentlemen, is going to be about a tragedy. [934 P.2d 375] And the tragedy ... what this evidence in this case will be about is drinking and driving and what it can do to a man and his family.

....

[T]he evidence will be that Mr. Fritts made a choice to drink and drive, and that resulted in his death.

... And he'd had a problem with alcohol, and he'd had a problem with some substance abuse that had gone on for a number of years. And this problem kept coming back. But on February 20th of 1990 this problem came back with a vengeance.

Counsel wound up his closing statement by asking the jury to consider:

Where did the tragedy begin? Where did the negligence exist that took David Fritts' life? On February 20, 1990, David Fritts ... made a very bad decision. He made a decision to start drinking again, after he had been counseled at the Bill Willis Community Mental Health Center.... [H]e did something that each and every one of us ... all know is negligent. He made a decision to drink and drive. And that's a problem that our society is well confronted with, and that we have not been able to control....

Thus, the trial shifted from one of medical malpractice to the assignment of negligence in the automobile accident.

Counsel for Dr. McKinne continually focused on the cause of the automobile accident, involving highly inflammatory matters of intoxication and chronic alcohol abuse, instead of focusing on whether Fritts' injuries in the automobile accident resulted in his death. It is totally illogical to argue that, if Fritts had not been driving while intoxicated, he would not have required a physician.^[5] In effect, that is just how Dr. McKinne's defense proceeded.

Thus, we conclude that the submission of the issue of comparative negligence--decedent's conduct unrelated to his medical treatment--was error. We also find a strong probability that the erroneously given instructions misled the jurors and caused them to reach a result different from what they would have reached but for the flawed instructions.

Next, we examine the purported error in admitting evidence of the decedent's drinking at the time of the automobile accident as well as evidence of his prior chronic substance abuse. Our prior discussion has pointed out the irrelevant and inflammatory nature of such evidence. However, Dr. McKinne asserts that Plaintiff waived any such error because she failed to object when such evidence was first addressed with a witness. Although we have found that the submission of the issue of comparative negligence was reversible error, we address this matter to provide guidance on new trial.

Plaintiff filed a motion in limine to prohibit opposing counsel from referring to or offering evidence on these highly prejudicial matters, but the trial court overruled the motion. Thereafter, the evidence was the focus of Dr. McKinne's counsel in his opening statement, and Plaintiff's counsel did not object when the matter was first the subject of testimony. It is the rule that a motion in limine is advisory, and that to preserve an objection for appeal, an objection must be made when the evidence is submitted. Corbell v. State ex rel. Dept. of Transp., 856 P.2d 575 (Okla.Ct.App.1993).

However, from our review of the record, we conclude that although counsel did not interpose contemporaneous objections to every inquiry regarding the irrelevant evidence, see Bauman v. International Harvester Co., 191 Okla. 392, 130 P.2d 287 (1942), there were numerous objections. Indeed, Plaintiff was granted a continuing objection, which negated the need of continued objections that would serve little additional purpose but to focus the jury's attention on the potentially prejudicial matters. We conclude that there was no waiver and that the issue [934 P.2d 376] of the admissibility of the evidence was properly preserved.

Here, much of the evidence and statements of counsel were, indeed, irrelevant and highly inflammatory. The fact of the automobile collision was certainly relevant--but the cause of that collision was not. Where alcohol was not a factor in the medical treatment, the fact that Fritts' injury may have been caused by his consumption of alcohol simply has no material bearing whatsoever on whether his eventual death was the result of negligent treatment by Dr. McKinne.

Fritts' history of substance abuse is relevant to the issue of damages where there is evidence of its effect on probable life expectancy, and Plaintiff seeks damages based on loss of future earnings. However, like evidence of Fritts' drinking on the night of the accident, it was not proper for the jury to consider such evidence in regard to the claim of negligence against Dr. McKinne. Where evidence is admissible on a certain point only, the trial court should at least advise the jury to consider it on that point alone in order to assure that the evidence will not be applied improperly. St. Louis & San Francisco Ry. Co. v. Murray, 50 Okla. 64, 150 P. 884 (1915) (syllabus 3); see also American Biomedical Group, Inc. v. Norman Regional Hosp. Auth., 855 P.2d 1074, 1080 (Okla.Ct.App.1993). Here, where the evidence is extremely inflammatory, bifurcation of trial of the liability and damages issues would have avoided completely the possibility of prejudice from the evidence.

We find that evidence of Fritts' intoxication and history of substance of abuse, along with repeated references to it by defense counsel, was sufficiently prejudicial to Plaintiff's case as to have prevented a full and fair trial of the issues. Furthermore, the admission of relevant but inflammatory evidence, admissible for only one issue, was reversible error in the absence of limiting instructions or bifurcated trial.

As for Dr. McKinne's counter-appeal, the reversal of the judgment necessarily entails reversal of his award of costs based on prevailing party status. Therefore, we need not address his claim of inadequacy of the cost award.

The judgment in favor of Dr. McKinne is REVERSED. The cause is remanded to the trial court with directions to grant a new trial.

GOODMAN, P.J., and BOUDREAU, J., concur.

[1] The surgery was performed five days after admission to allow swelling in his face to go down.

[2] A blood sample taken from Fritts approximately three to four hours following the accident revealed an alcohol content of .20.

[3] The trial court allowed Plaintiff a continuing objection to evidence of Fritts' substance abuse history. Evidence admitted included Fritts' treatment at a mental health center.

[4] See Rochester v. Katalan, 320 A.2d 704 (Del.1974); LeBlanc v. Northern Colfax County Hosp., 100 N.M. 494, 672 P.2d 667 (Ct.App.1983); Musachia v. Rosman, 190 So.2d 47 (Fla.App. 3 Dist.1966).

[5] In Eiss v. Lillis, 233 Va. 545, 357 S.E.2d 539, 543 (1987), the court rejected such an argument as "obviously wrong," noting that if it were accepted, in any case where the patient was responsible for events that led to his hospitalization, the treating physician could avoid liability for malpractice.

[650 So.2d 713] Wanda T. Anderson-Tate, Metairie, for applicant.

Jacob J. Amato, Jr., Lisa A. Dunn, Amato & Creely, Gretna, for respondent.

Lawrence S. Kullman, New Orleans, J.J. McKernan, Baton Rouge, for amicus curiae La. Trial Lawyers Ass'n.

FACTS AND PROCEDURAL HISTORY

[93-2818 La. 1] KIMBALL, Justice.^[*]

In June, 1988, Christi Veazey leased an apartment in the Elmwood Plantation Apartments complex in Metairie, Louisiana, from Tonti Management Corporation ("Tonti"). About two weeks later, the complex was sold and Southmark Management Corporation ("Southmark") assumed management of the complex. At approximately 1:45 a.m., on October 3, 1988, an intruder entered plaintiff's second-story apartment through her bedroom window and raped her. Plaintiff was unable to identify the rapist, and the rapist's identity remains unknown.

In November, 1988, Christi Veazey commenced the instant action in negligence against Southmark. Plaintiff's allegations regarding Southmark's negligence can be grouped into two categories: (1) misrepresenting the amount of security at the complex and the number of past criminal acts occurring on the complex premises, and (2) furnishing inadequate security. As to the misrepresentations, plaintiff alleged that management represented to her and to her mother that Jefferson Parish Sheriff's Office deputies lived on the premises and provided security and that, with the exception of a burglary that occurred a few years earlier, no criminal offenses had been reported to management as having been committed on the complex premises. The truth, [93-2818 La. 2] plaintiff alleged, was the security officers were only convenience officers who had no responsibility for protecting the residents, and management was aware that other rapes or attempted rapes had been committed on the complex premises over the past year. As to the inadequacy of security, plaintiff alleged that Southmark failed to provide adequate locks on the windows, failed to maintain the premises so as to discourage potential intruders, and failed to provide adequate lighting. With regard to the latter, plaintiff further alleged that she had complained to management about the lighting in general, and about the non-functioning pool lights, in particular.

Southmark answered plaintiff's complaint generally denying all of plaintiff's allegations. Southmark also filed a third-party demand against Tonti, who had leased the apartment to plaintiff. Tonti responded by filing a motion for summary judgment. While the trial court denied Tonti's motion, the court of appeal granted writs, finding that Tonti was entitled to summary judgment. Tonti was thus dismissed from the suit, and the case proceeded to trial solely against Southmark. At the close of the four-day jury trial, Southmark requested, pursuant to La.Code Civ.Pro. art. 1812(C)(2),^[1] that the trial court submit [650 So.2d 714] a special interrogatory so as to permit the allocation of fault to the nonparty rapist. The trial court denied Southmark's request as well as its motion for a continuance to seek emergency writs on the issue.

The jury returned a verdict itemizing plaintiff's damages as follows: $150,000 in general damages and $30,000 in special damages, for a total damage award of $180,000. The jury, however, returned an inconsistent verdict on liability. Specifically, the jury responded to interrogatory # 1 that defendant Southmark was at fault, to interrogatory # 2 that plaintiff Christi Veazey was free from fault, and to interrogatory # 3 that Southmark was 60% at fault and [93-2818 La. 3] plaintiff was 40% at fault.^[2] The trial court, nonetheless, entered judgment adopting the verdict of the jury as the judgment of the court, assessing 40% fault to plaintiff and 60% fault to defendant. Plaintiff filed a motion for clarification and, in the alternative, motions for a judgment notwithstanding the verdict ("JNOV") and new trial. The trial court granted both the motions for clarification and JNOV, reallocating all of the fault to Southmark and finding it liable for the entire $180,000 damage award.

Affirming, the court of appeal found that while the trial court's granting of the motion for clarification was improper, its granting of the JNOV was proper. Veazey v. Elmwood Plantation Associates, Ltd. and Southmark Management Corp., 625 So.2d 675 (La.App. 5th Cir.1993). No error exists, the court of appeal reasoned, simply because the judgment was styled a clarification and a JNOV, as in substance "the judgment [took] on the legal posture of a JNOV and nothing more." Id. at 681. The court of appeal further reasoned that because "the record [was] devoid of any facts that would support finding Christi Veazey at fault for her own rape," the granting of the JNOV, which reallocated all of the fault to Southmark, was not manifestly erroneous. Id. at 680-81.

[93-2818 La. 4] The court of appeal also found no reversible error in the trial court's refusal to submit a special interrogatory to the jury for allocation of fault to the nonparty rapist. In support of its finding, the court of appeal cited the following two rationales: (1) the wide discretion La.Code Civ.Pro. art. 1812 affords the trial court in determining whether to submit such an interrogatory; and (2) the jurisprudential "mandates" that denying a requested jury charge is reversible error only if it results in the jury being misled to such an extent as to prevent it from doing justice. Applying both rationales, the court of appeal concluded that "after careful review, we can only say the trial court did not commit reversible error because of the wide discretion granted by our statutory scheme, and, more importantly, we conclude the trial court's action did not cause the jury to be misled to such an extent as to prevent it from doing justice." Id. at 679. In reaching that result, however, the court of appeal also concluded, based on its "exhaustive search of suggested guidelines," that "it is permissible to assess fault between intentional and negligent tortfeasors." Id.

On Southmark's application, we granted certiorari to consider the correctness of the court of appeal's decision. Christi Veazey v. Elmwood Plantation Associates, Ltd. and [650 So.2d 715] Southmark Management Corporation, 93-2818 (La. 2/4/94), 633 So.2d 158.

ISSUE

While Southmark contends that the lower courts erred in finding it at fault and in holding it liable for plaintiff's damages which resulted from the rapist's intentional criminal acts, we have reviewed the record and find substantial evidence supporting the finding that the management of the apartment complex misrepresented to plaintiff the security afforded at the complex, that window locks were inadequate, that lighting was poor and that security provided by the complex was substandard. Therefore, the finding of fault on the part of Southmark, which was a contributing cause of plaintiff's damages, is not manifestly erroneous.

As such, the only issues we consider herein are whether the fault of an intentional tortfeasor and a negligent tortfeasor: (1) can; and (2) should, be compared by the finder of fact.

[93-2818 La. 5] LAW

The issues of whether Louisiana comparative fault principles can and, if so, should apply when the fault of both an intentional tortfeasor and a negligent tortfeasor contributes to the same damages are significant issues of first impression in this Court. The Louisiana comparative fault law was enacted by Act 431 of 1979 (effective August 1, 1980), and thus governs the instant case. Act 431 ushered into Louisiana a comparative fault system by amending and re-enacting La.C.C. articles 2103,^[3] 2323 and 2324. To adjust procedurally for those substantive changes in the Civil Code provisions, Act 431 also amended and re-enacted La.Code Civ.Pro. arts. 1811^[4] and 1917. These provisions of the comparative fault law all share a common characteristic; "[they all] use the term 'fault' when referring to tortfeasor conduct and 'negligence' when referring to victim conduct." D. Robertson, Ruminations on Comparative Fault, Duty-Risk Analysis, Affirmative Defenses, and Defensive Doctrines in Negligence and Strict Liability Litigation in Louisiana, 44 La.L.Rev. 1341, 1344 n. 18 (1984) (hereinafter "Ruminations "); Turner v. New Orleans Public Service, Inc., 476 So.2d 800 (La.1985); M. Plant, Comparative Negligence and Strict Tort Liability, 40 La.L.Rev. 403, 413 (1980) (hereinafter "Plant ").

The significant effects of the comparative fault law on Louisiana tort law were two-fold. First, the comparative fault law eliminated the harsh all-or-nothing doctrine of contributory negligence, which Louisiana had borrowed from the common law. "Consequently, a plaintiff's claim for damages no longer can be barred totally because of his negligence. At most his claim may be reduced in proportion to his fault." Bell v. Jet Wheel Blast, Div. of Ervin Ind., 462 So.2d 166, 170 (La.1985); La.C.C. art. 2323. Second, the comparative fault law altered the rules regarding the relationship between joint tortfeasors, changing the basis for contribution [93-2818 La. 6] among them from virile share defined as per head to virile share defined in terms of proportionate fault, La.C.C. arts. 1804,^[5] and, by later amendment, limiting solidary liability between them. La.C.C. art. 2324, as amended in 1987. In short, the comparative fault law " 'provide[d] the framework for a comprehensive scheme of loss apportionment [650 So.2d 716] in multiple party litigation.' Chamallas, Comparative Fault and the Multiple Party Litigation in Louisiana: A Sampling of the Problems, 40 La.L.Rev. 373 (1981)." Cole v. Celotex Corp., 599 So.2d 1058, 1062 n. 13 (La.1992).

The comprehensive framework provided by the comparative fault law, however, left several major questions unanswered. See Murray v. Ramada Inns, Inc., 521 So.2d 1123, 1133 (La.1988) (citing Turner, supra ). One of the questions left unanswered is the basic question presented here, i.e., whether comparative fault principles should apply when one tortfeasor acts negligently and another tortfeasor acts intentionally to produce the same damages. D. Robertson, 1 Louisiana Practice Series: The Louisiana Law of Comparative Fault: A Decade of Progress 5 (1991) (hereinafter "Decade of Progress ") (noting that this is one of the " 'tough details [the legislature has] left for the courts to decide'; the comparative fault statutes are opaque on this question"). Forecasting this as a "multiparty difficulty" sure to arise for the courts to decide, the same commentator framed the question before us as follows: whether (and, if so, how) "comparative fault assessment [should] work in a case against defendant A in intentional tort and defendant B in negligence." Ruminations, supra at 1343-44 n. 14.

Construing La.C.C. art. 2323,^[6] we have held that it adopted the substantive principle of comparative fault and that it left the particulars of its application for the courts to decide. Bell, supra; Turner, supra; Howard, supra. One such particular is the scope of the [93-2818 La. 7] comparative fault law's application. Speaking to this issue, La.C.C. art. 2323 simply states that comparative fault applies "[w]hen contributory negligence is applicable to a claim for damages." While that limiting language could conceivably be construed as confining comparative fault to negligence cases, we have declined to read it so narrowly. Bell, supra; Turner, supra. Rejecting such a narrow reading, we reasoned in Turner, supra, that if the legislature had intended to confine the comparative fault law, it could have easily done so; "[o]ne word would have done the job, i.e., 'only when contributory negligence is applicable.' " Turner, 476 So.2d at 804 (emphasis added). Likewise, we reasoned in Bell, supra, that La.C.C. art. 2323 neither "state[s] when the courts shall permit a defense of contributory or comparative negligence to affect a plaintiff's recovery, nor does it prohibit the courts from applying comparative negligence to a claim previously insusceptible to the bar of contributory negligence." Bell, 462 So.2d at 170. In sum, rather than reading La.C.C. art. 2323 as restricting judicial expansion of comparative fault to other contexts, we have read that article as leaving it to the court's discretion to determine in what contexts the judicially crafted doctrine of contributory negligence should be invoked and, in turn, mandating that in such contexts the court apply, in its place, comparative fault. Turner, 476 So.2d at 806 (Dennis, J., assigning additional reasons); Bell, supra; Howard v. Allstate Ins. Co., 520 So.2d 715, 718 (La.1988). Consequently, it is settled that La.C.C. art. 2323 neither prohibits nor mandates the contexts in which the comparative fault law applies.

That the comparative fault doctrine extends beyond the negligence arena into other areas of tort law is likewise settled. Bell, supra (applying comparative fault to some strict products liability cases); Landry v. State, 495 So.2d 1284 (La.1986) (applying comparative fault to case arising under La.C.C. art. 2317); Howard v. Allstate Insurance Co., 520 So.2d 715 (La.1988) (applying comparative fault to cases arising under La.C.C. art. 2321); Turner v. New Orleans Public Service, Inc., 471 So.2d 709 (La.1985) (applying comparative fault to motorist-pedestrian case); see also Pelt v. City of DeRidder, 553 So.2d 1097 (La.App. 3d Cir.1989) [650 So.2d 717] (applying comparative fault to case under La.C.C. art. 667 and collecting cases); Decade of Progress, supra (collecting cases). Indeed, a long line of jurisprudence, which we sampled in Landry, supra, establishes that the comparative fault concept applies to a wide array of strict [93-2818 La. 8] liability cases, despite the conceptual and semantical difficulties in applying the doctrine to such non-negligence based liability. Landry, 495 So.2d at 1290.

The issue before us, here, of course, is whether the comparative fault law extends to wrongful conduct at the opposite end of the spectrum--intentional torts. See 3 Comparative Negligence § 19.10[iii] (noting that "[a]t the opposite extreme from strict liability lies cases in which defendant has injured plaintiff intentionally"). Recently, several Louisiana appellate courts have concluded that comparative fault principles under La.C.C. art. 2323 apply to intentional torts, some with, and some without, offering reasons or comments for doing so. In so holding, these cases, explicitly or implicitly, have construed the term "fault" contained in the various provisions of the comparative fault law as encompassing both unintentional and intentional conduct that causes injury. Thompson v. Hodge, 577 So.2d 1172, 1177 (La.App. 2d Cir.1991); Peacock's, Inc. v. Shreveport Alarm Co., 510 So.2d 387, 405 (La.App.2d Cir.), writ denied, 513 So.2d 826 (La.1987) (citing F. Stone, Tort Doctrine, 12 La.Civil Law Treatise § 61 (1977)); see also Morris v. Yogi Bear's Jellystone Park Camp Resort, 539 So.2d 70 (La.App. 5th Cir.), writ denied, 542 So.2d 1378 (La.1989) (applying comparative fault to quantify intentional fault of rapist without reasons or comments); McCullom v. Regional Transit Authority, 616 So.2d 239 (La.App. 4th Cir.), writ denied, 620 So.2d 852 (La.1993). Likewise, commentators have suggested that comparative fault law is broad enough to encompass intentional torts. J. Dear and S. Zipperstein, Comparative Fault and Intentional Torts: Doctrinal Barriers and Policy Considerations, 24 Santa Clara L.Rev. 1, 37 (1984) (hereinafter "Dear & Zipperstein "); Decade of Progress, supra.

A contrary view, however, has been voiced by some Louisiana appellate courts and a commentator. See Broussard v. Lovelace, 610 So.2d 159 (La.App. 3d Cir.1992), writ denied, 615 So.2d 343 (La.1993) (declining to apply comparative fault to conversion case); Bradford v. Pias, 525 So.2d 134 (La.App. 3d Cir.1988) (declining to apply comparative fault to battery case); Hebert v. First Guaranty Bank, 493 So.2d 150 (La.App. 1st Cir.1986) (declining to apply comparative fault to conversion case); F. Stone, Tort Doctrine, 12 La.Civil Law Treatise § 61 (1994 Supp.) (hereinafter "Tort Doctrine ") (citing holding in Yogi Bear's Jelly Stone Park, supra, and noting caveat that it is "[c]learly an erroneous holding since contributory negligence is inapplicable to intentional torts").

[93-2818 La. 9] Also significant is the legislature's selection of the dynamic, all-encompassing civilian concept of "fault" as the standard for the tortfeasor's conduct. As noted, the provisions of the comparative fault law all share a common characteristic; they all speak in terms of plaintiff's "negligence" and defendant's or tortfeasor's "fault." Fault, historically, has been the basis for tort liability in Louisiana, being the key word used in La.C.C. art. 2315,^[7] the "fountainhead" of tort responsibility in Louisiana. Langlois v. Allied Chemical Corp., 258 La. 1067, 249 So.2d 133, 136-37 (1971). The Civil Code, however, does not define "fault," and this Court has described attempts at defining fault as a "logomachy,"^[8] noting in Langlois that "[b]ecause of the difficulty in defining fault for all times and purposes and instead of defining fault by listing numerous activities which constitute fault (much as we enumerate the activities which constitute criminal conduct in our Criminal Code), our law has left this determination to our courts." Langlois, 249 So.2d at 137; Tort Doctrine, supra, at § 60 (noting that "fault is the mirror of our times: [650 So.2d 718] ... fault is a fluid term definable only with respect to its surroundings").

However, certain definitions of the word have been judicially articulated and are instructive in our analysis. One such articulation is that "fault is a broad concept embracing all conduct falling below a proper standard." Weiland v. King, 281 So.2d 688, 690 (La.1973) (citing Langlois, supra, and Tort Doctrine, supra ). As this definition reflects, "fault" under civilian theory clearly includes more than just negligence; it extends the gamut from strict liability to intentional torts. Tort Doctrine, supra at § 61 (describing fault as including "intentional harm caused to another without consent or privilege"); see Plant, supra at 413-15.

Given the existing statutory scheme and this Court's prior case law, we find that comparative fault law as it exists in Louisiana is broad enough in an appropriate factual setting to encompass the comparison of negligent and intentional torts. However, our conclusion that such a comparison can be made does not end the inquiry; instead, it simply raises the more [93-2818 La. 10] difficult question of whether such a comparison should be made in general and, more specifically, whether such a comparison should be made in this particular case.^[9]

As we have previously explained herein, this Court has heretofore read La.C.C. art. 2323 as leaving it to the Court's discretion to determine in what contexts the doctrine of comparative negligence should be applied. See Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106, 1113 (La.1990); Murray v. Ramada Inns, Inc., 521 So.2d 1123, 1133 (La.1988); Howard v. Allstate Ins. Co., 520 So.2d 715, 718 (La.1988); Landry v. State, 495 So.2d 1284 (La.1986); Turner v. New Orleans Public Service, Inc., 471 So.2d 709 (La.1985); Bell v. Jet Wheel Blast, Div. of Ervin Ind., 462 So.2d 166 (La.1985). As this Court stated in Bell, supra:

For example, the question of whether other classes of cases fall within the category to which comparative fault may apply must be decided on a case-by-case basis.

Bell, 462 So.2d at 172.

Though the accident at issue in Bell occurred before the effective date of comparative fault, we have adhered to the line of reasoning expressed in that case, i.e., that application of comparative fault principles in certain types of cases requires a case-by-case analysis. For instance, in the area of strict liability, though we have repeatedly held that comparative fault principles generally apply in strict liability cases involving victim fault, we have also consistently maintained that application of comparative fault principles to allocate fault between an injured plaintiff and the party with garde or custody of the property or object producing the harm in a particular case depends in part upon the court's determination of whether reducing the injured party's recovery through a comparative fault allocation will serve as an incentive for a similarly situated person to exercise care or, in contrast, operate to reduce the incentive of the owner of the thing at issue to remove the risk of harm. See Sistler, supra; Landry, supra ("The courts [93-2818 La. 11] are applying the comparative fault principles to strict liability cases on a case by case basis and as the facts and circumstances lead the courts to do so."). This case-by-case approach is also reflected in our appellate courts' decisions to alternatively either apply, or decline to apply, comparative fault principles in intentional tort cases involving battery and conversion, depending upon the facts and circumstances presented in the particular cases at issue. See supra.

Given the fact that we have held herein that the concept of comparative fault as it exists in Louisiana is broad enough to encompass the comparison of intentional acts [650 So.2d 719] and negligence in appropriate factual circumstances, we see no reason why the same sort of case-by-case analysis as that employed by the courts in a strict liability setting should not be employed by the courts in determining whether to apply comparative fault principles in cases where it is alleged that comparative fault exists among intentional tortfeasors and negligent tortfeasors. That being said, public policy considerations inherent in the question of whether such a comparison should be made compel us to find, as did the trial court, that such a comparison should not be made in this particular case.

First, and foremost, the scope of Southmark's duty to the plaintiff in this case clearly encompassed the exact risk of the occurrence which caused damage to plaintiff. As a general rule, we find that negligent tortfeasors should not be allowed to reduce their fault by the intentional fault of another that they had a duty to prevent. See Kansas State Bank & Trust Co. v. Specialized Transportation Services, Inc., 249 Kan. 348, 819 P.2d 587, 606 (1991).

Second, Southmark, who by definition acted unreasonably under the circumstances in breaching their duty to plaintiff, should not be allowed to benefit at the innocent^[10] plaintiff's expense by an allocation of fault to the intentional tortfeasor under comparative fault principles. Given the fact that any rational juror will apportion the lion's share of the fault to the intentional tortfeasor when instructed to compare the fault of a negligent tortfeasor and an intentional tortfeasor,^[11] application of comparative fault principles in the circumstances presented in this [93-2818 La. 12] particular case would operate to reduce the incentive of the lessor to protect against the same type of situation occurring again in the future. Such a result is clearly contrary to public policy.

Third, as Dean Prosser has explained it, intentional wrongdoing "differs from negligence not only in degree but in kind, and in the social condemnation attached to it." Prosser and Keeton on the Law of Torts § 65, at p. 462 (5th Ed.1984). In our view, this is a correct assessment of the character and nature of the conduct which defendant herein seeks to have the courts compare. Because we believe that intentional torts are of a fundamentally different nature than negligent torts, we find that a true comparison of fault based on an intentional act and fault [650 So.2d 720] based on negligence is, in many circumstances, not possible.^[12]

[93-2818 La. 13] In sum, we hold that while Louisiana law is broad enough to allow comparison of fault between intentional tortfeasors and negligent tortfeasors, determination of whether such a comparison should be made must be determined by the trial court on a case by case basis, bearing in mind the public policy concerns discussed herein.^[13] We further hold, for the reasons stated herein, that comparison of Southmark's negligence and the rapist's fault in this particular case is not appropriate. As such, it was not error for the trial judge in this case to refuse to [93-2818 La. 14] submit a special interrogatory to the jury for comparison of Southmark's and the rapist's respective fault.

DECREE

AFFIRMED.

WATSON, J., joins the opinion and adds additional reasons.

LEMMON and HALL, JJ., dissent and assign reasons.

MARVIN, J., dissents for the reasons assigned by HALL, J.

[650 So.2d 721] [93-2818 La. 1] WATSON, Justice, adding concurring reasons.

The dissenters urge that we adopt their new (for Louisiana) theory of comparing intentional fault with negligence or strict liability, saying that difficulty of comparison is no reason to eschew this idea. It is not the difficulty of comparison: it is the impossibility.

The rapist or murderer is 100% at fault. His intentional fault cannot be compared logically with the negligence of a party who facilitates the crime. Likewise, there can be no comparison with the injured victim's fault, as appealing as the theoretical concept may be.

I join the opinion and respectfully add these brief comments.

HALL, Justice, dissenting.

I respectfully dissent.

After a scholarly and accurate analysis of fault and comparative fault principles, the majority opinion correctly concludes that comparative fault law as it exists in Louisiana is broad enough in an appropriate factual setting to encompass the comparison of negligent and intentional acts. This conclusion does not, as the majority opinion states, end the inquiry. We must determine whether such a comparison should be made in general or, more specifically, should be made in this case. Stated otherwise, we must determine whether there are any policy considerations that would preclude an application of comparative fault principles to intentional tort cases in general, and to the facts of this case in particular. It is in this further determination that I part company with the majority. I conclude that there are no public policy considerations which militate against applying the comparative fault and limited solidary liability principals of LSA-C.C. arts. 2323, 2324 and 1804, and LSA-C.C.P. art. 1812, to allocate fault between an intentional tortfeasor and a negligent tortfeasor consistent with the development of comparative fault law in this state.

Focusing first on the facts of this particular case, the question presented here is whether to compare the fault of an intentional co-tortfeasor--the non-party rapist--against that of a negligent co-tortfeasor--Southmark. This particular question takes this case outside of the traditional "two party model"--the contributorily negligent plaintiff and the intentional negligent tortfeasor--and places it into the multiple tortfeasor context. J. Leibman, Comparative Contribution and Intentional Torts: A Remaining Roadblock to Damages Apportionment, 30 [93-2818 La. 2] Am.Bus.L.J. 677 (1993) (hereinafter "Leibman "). In the multiple tortfeasor setting, additional issues of contribution and solidary liability between joint tortfeasors are interjected. Id.; Blazovic v. Andrich, 124 N.J. 90, 590 A.2d 222, 229, 18 A.L.R.5th 1031 (1991) (noting that "[a] court's determination whether certain conduct is amenable to apportionment under the [New Jersey Comparative Negligence] Act affects not only the plaintiff's potential recovery, but also the liability among joint tortfeasors"). For guidance on the issue before us, we should turn to our recent jurisprudence addressing two multiparty issues that arise under the comparative fault law.

The first multiparty issue we recently resolved is that the comparative fault law applies to all "phantom" tortfeasors. Gauthier v. O'Brien, 618 So.2d 825 (La.1993).^[1] Employing expressly the phantom tortfeasor term, we wrote:

Louisiana juries are not unfamiliar with the allocation of fault to non-parties. Phantom tortfeasors' fault has been assessed pursuant to former La.Code of Civ.Proc. art. 1811(B)(2), now article 1812. Allocation of fault pursuant to [La.C.C.] article 2324 is not likely to result in jury confusion in light of the prior experience in this area. Failure to submit a special jury interrogatory to the jury to determine the fault, if any, of a third party constitutes error.

Gauthier, 618 So.2d at 831 (citations omitted). In reaching that conclusion, we noted that "[t]he rationale for allocating fault to all [650 So.2d 722] who may be culpable is that '[t]rue apportionment cannot be achieved unless that apportionment includes all tortfeasors guilty of causal negligence either causing or contributing to the occurrence in question, whether or not they are parties to the case.' " 618 So.2d at 830 (quoting Pocatello Indus. Park Co. v. Steel West, Inc., 101 Idaho 783, 621 P.2d 399, 403 (1980)); see also Chamallas, Comparative Fault and the Multiple Party Litigation in Louisiana: A Sampling of the Problems, 40 La.L.Rev. 373, 389 (1981) (hereinafter "Chamallas ") (noting that the comparative fault law "contemplates that the conduct of all persons responsible for plaintiff's injury should be evaluated by the fact finder").

The procedural mechanism by which phantom tortfeasor fault is considered is set forth in LSA-C.C.P. Art. 1812(C)(2), which provides for submission of a special jury interrogatory regarding whether another person, whether nonparty or not, was at fault.^[2] Construing LSA-[93-2818 La. 3] C.C.P. Art. 1812(C), we held in Lemire v. New Orleans Public Service, Inc., 458 So.2d 1308, 1309 (La.1984), that "[w]hile La.C.C.P. art. 1812C provides that the court may (unless waived by all parties) submit special written questions to the jury, the apparent intent is that the court in such circumstances is required to submit the questions." Lemire, 458 So.2d at 1309 (citing 1983 Revision Comments to LSA-C.C.P. Art. 1812, Section (b)). Hence, Lemire mandates the submission of such special interrogatory, when appropriate. See Veal v. Forrest, 543 So.2d 1121, 1123 n. 3 (La.App. 1st Cir.1989). Submission of such special interrogatory becomes appropriate when evidence supporting a finding of fault on the part of a phantom tortfeasor is presented. Brock v. Winn Dixie Louisiana, Inc., 617 So.2d 1234, 1238 (La.App. 3d Cir.), writ denied, 620 So.2d 848 (La.1993) (citing Devereux v. Allstate Ins. Co., 557 So.2d 1091 (La.App.2d Cir.1990)). When such evidence exists, the trial court's refusal to submit such special interrogatory to the jury to permit the allocation of fault to the phantom tortfeasor is erroneous. Gauthier, 618 So.2d at 831; Perez v. State, Through Dept. of Transportation and Development, 578 So.2d 1199 (La.App. 4th Cir.), writ denied, 581 So.2d 706 (La.1991).

Recapping, a settled substantive issue is "that Gauthier requires the quantification of the fault of all types of phantom tort-feasors." D. Robertson, Solidary Liability in Tort: Understanding Gauthier and Touchard, Who Pays How Much?, Part 2, 41 La.Bar J. 334, 335 (1993) ("Understanding Gauthier "). The rationale for this rule is that " '[t]o limit the jury to viewing the negligence of only one tortfeasor and then ask it to apportion that negligence to the overall wrong is to ask it to judge a forest by observing just one tree. It cannot, and more importantly should not, be done. It simply is not fair to the tortfeasor which plaintiff chooses to name in his lawsuit.' " L. Eilbacher, Comparative Fault and the Nonparty Tortfeasor, 17 Ind.L.Rev. 903, 906 n. 2 (1984); see also Chamallas, supra at 389 (noting that "[i]f a tortfeasor is absent, problems may arise in assessing the correct percentage of fault to the existing parties to the litigation"); Gauthier, 618 So.2d at 833 (Lemmon, J., concurring). Similarly, a settled procedural issue is that when evidence of phantom tortfeasor fault is presented, the trial court [93-2818 La. 4] is required, under LSA-C.C.P. Art. 1812(C)(2), to submit to the jury the special interrogatory so as to permit the allocation of fault to such nonparty tortfeasor.

Another recently settled multiparty issue under the comparative fault law is that a limited form of the civilian concept of solidary liability between joint tortfeasors^[3] is retained in LSA-C.C. Art. 2324.^[4] Touchard [650 So.2d 723] v. Williams, 617 So.2d 885, 891-92 (La.1993). As we observed in Touchard, solidary liability is "founded on the notion that the innocent plaintiff should obtain full compensation from any person whose fault was an indispensable factor in producing the harm." 617 So.2d at 890. Under the solidary obligation provision in effect before Act 431 of 1979 and thereafter until LSA-C.C. Art. 2324 was amended by Act 373 of 1987, any tortfeasor could be compelled to pay the entire judgment; hence, "a solvent defendant was subjected to paying the tab for other defendants who are insolvent, undeterminable, or hidden." Id. Act 431 altered that rule somewhat, and the 1987 amendment to LSA-C.C. Art. 2324 altered that rule even more.

In Touchard, we thoroughly canvassed those changes in LSA-C.C. Art. 2324, including the legislative history behind them, and concluded that:

[T]he final version of [LSA-C.C. Art. 2324] adopted by the Legislature represents a compromise between the competing interests of judgment creditors and judgment debtors. Judgment debtors are no longer exposed to solidary liability for 100% of the judgment creditor's damages except where the joint tortfeasors commit "an intentional or wilful act." Instead, a judgment debtor's exposure is limited, in the absence of a greater than 50% assignment of that debtor's fault, to fifty percent of the plaintiff's "recoverable damages." [93-2818 La. 5] Nevertheless, a judgment debtor's liability, in the absence of the judgment creditor being assigned a greater degree of fault, is not limited to his assigned percentage of fault, as the original bill had proposed.

Similarly, a judgment creditor is precluded from securing 100% recovery from one or another of the joint tortfeasors, except where the tortfeasors commit "an intentional or wilful act," or a given tortfeasor is assigned 100% of the fault. Yet such, a judgment creditor is not limited to recovering from each tortfeasor only his percentage of fault, unless the judgment creditor is assigned a greater degree of fault than the given tortfeasor.

617 So.2d at 891-92. Hence, Touchard resolves the issue of the proper reading of the concededly confusing limited solidarity rule set forth in LSA-C.C. Art. 2324, holding that "the article [as currently written] was intended to provide a cap on solidarity among joint tortfeasors of 50%," as opposed to the previously existing 100%, and, significantly, that "[t]he balance, reached by the legislature, shares the risk of insolvent, incapable of paying, undeterminable, and hidden [phantom] tortfeasors" between judgment debtors (defendants) and creditors (plaintiffs). 617 So.2d at 891-93.^[5]

[650 So.2d 724] Against this backdrop, I return to the specific, unsettled issue before us of whether it is proper, as a policy matter, to compare the negligent conduct of one co-tortfeasor against the intentional conduct of another co-tortfeasor. This issue has two facets: (i) whether the comparison of the concurrent fault of negligent and intentional tortfeasors should be permitted under the comparative fault law; and (ii), if so, how to treat the fault assessed to the non-party, intentional tortfeasor.

Building on our recent jurisprudence, I start with the notion underlying the comparative fault law of equitable apportionment of losses among all responsible tortfeasors--parties and nonparties--which we recognized in Gauthier, and the retention of limited solidary liability and the resulting sharing of the risk of losses attributable to insolvent and phantom tortfeasors between plaintiffs and defendants, which we recognized in Touchard. Under our recent jurisprudence, it is clear that in a multiparty litigation involving two or more negligent co-[93-2818 La. 6] each tortfeasor is apportioned a percentage of fault and each, excepting a tortfeasor assigned more than 50% fault or less fault than that assigned the plaintiff, is generally solidarily responsible for 50% of plaintiff's recoverable damages. Altering the hypothetical to include an intentional tortfeasor and assuming a judicial refusal to permit the allocation of fault to such intentional tortfeasor results, as the lower courts held in this case, in the negligent tortfeasor(s) being held liable for the entirety of plaintiff's damages. This result--holding the negligent tortfeasor(s) responsible for the entirety of the damages because of the mere happenstance that a co-tortfeasor committed an intentional, as opposed to a negligent, wrongdoing--is anomalous.

This anomaly that arises in the context of concurrent fault of negligent and intentional tortfeasors has only recently received judicial attention; the scarcity of judicial attention to the problem is explained by the fact that state legislatures, including the Louisiana legislature, only recently have limited joint and several, or solidary, liability. Medina v. Graham's Cowboys, Inc., 113 N.M. 471, 827 P.2d 859, 864 (Ct.App.1992). The few recent cases to address the issue in the context of comparative fault and less than full joint and several, or solidary, liability, however, have generally agreed that resolution of the anomaly requires allocation of fault between the negligent and intentional tortfeasors. Weidenfeller v. Star and Garter, 1 Cal.App.4th 1, 2 Cal.Rptr.2d 14 (Ct.App. 4 Dist.1991) (holding that when concurrent negligence of one tortfeasor and intentional misconduct of an assailant caused plaintiff's injury, negligent tortfeasor's liability was limited to its percentage of fault); Martin By and Through Martin v. United States, 984 F.2d 1033 (9th Cir.1993) (finding result in Weidenfeller a correct construction of California law); Medina, supra (holding that fault of intentional and negligent tortfeasors should be compared with negligent tortfeasor bearing responsibility only for its percentage of the damages, but holding negligent tortfeasor responsible for entirety of damages under alternative theory of respondeat superior for negligent hiring of intentional tortfeasor); Cf. Kansas State Bank & Trust Co. v. Specialized Transp. Services, Inc., 249 Kan. 348, 819 P.2d 587 (1991) (noting inconsistency in law but refusing to permit apportionment of fault between negligent and intentional tortfeasors).

Agreeing, I would hold that Southmark's negligent fault and the nonparty rapist's intentional fault must be compared and, finding that the rapist's fault was greater than that of Southmark's, as explained more fully hereafter, Southmark's solidary liability must be limited [93-2818 La. 7] to 50% of plaintiff's recoverable damages.

Turning back to the more general issue of whether comparative fault principles should be extended to intentional tort cases, I believe that they should and that such extension is consistent with both the language and the underlying policies of the comparative fault law.^[6] In so finding, I acknowledge that [650 So.2d 725] the position of extending comparative fault principles to the intentional tort context is a minority one. A. Schwartz, Applicability of Comparative Negligence Principles to Intentional Torts, 18 A.L.R.5th 525 (1994). Nonetheless, the historically rooted rationales underlying the majority position are inapposite under the Louisiana comparative fault law. More particularly, those historically rooted rationales are three-fold; namely: (i) the harshness of the contributory negligence bar; (ii) the theory that intentional fault is "different in kind"; and (iii) the policy considerations of deterring and punishing intentional tortfeasors. Dear & Zipperstein, supra at 387-92. I address each of these in turn.

The first rationale regarding the harshness of the contributory negligence bar is based on the pre-comparative fault, black letter law that contributory negligence was never applicable to intentional tort cases. See W. McNichols, Should Comparative Responsibility Ever Apply to Intentional Torts?, 37 Okla.L.Rev. 641, 647 (1984) (noting common law rule that contributory negligence was never applicable to intentional torts); White v. Gill, 309 So.2d 744 (La.App. 4th Cir.1975) (citing rule that contributory negligence is not a defense to intentional torts). This black letter law, the argument goes, was carried over under the comparative fault enactments. Continuing, the rationale is that because comparative fault evolved to compensate tort victims who were barred from recovery by the harsh all-or-nothing rule of contributory negligence, comparative fault should not be applied in contexts in which contributory negligence was not previously a defense, as it would place these plaintiffs in a worse position. A. Schwartz, Applicability of Comparative Negligence Principles to Intentional Torts, 18 A.L.R.5th 525 (1994).

[93-2818 La. 8] This rationale, however, overlooks the fact that comparative fault does not bar, but rather merely reduces, a plaintiff's recovery. "Thus the undue harshness rationale for refusing to compare plaintiff's negligence with defendant's intentional fault disappears." G. Hollister, Using Comparative Fault to Replace the All-or-Nothing Lottery Imposed in Intentional Tort Suits in Which Both Plaintiff and Defendant Are At Fault, 46 Vand.L.Rev. 121, 133 (1993) ("Hollister") (noting that applying comparative fault, in fact, will result in more equitable results). Furthermore, this rationale is clearly inapposite given our clear holdings putting to rest any notion that LSA-C.C. Art. 2323 cabins the comparative fault law to contexts in which contributory negligence was formerly a defense. Turner, supra; Bell, supra; Howard, supra.

The second rationale, oft-cited and relied on by the majority, for refusing to apply comparative fault to intentional torts is that intentional torts are "different in kind" than negligent torts and are thus incomparable. This rationale is based on the position posited by Dean Prosser that intentional wrongdoing " 'differs from negligence not only in degree but in kind, and in the social condemnation attached to it.' " 3 Comparative Negligence § 19.10[iii] (quoting Prosser and Keeton on the Law of Torts § 65, at p. 462 (5th Ed.1984)). This rationale has been rejected, however, by at least one court and by several commentators. Blazovic v. Andrich, 590 A.2d at 231 (finding that intentional torts and negligent torts are not "different in kind," but rather "different in degree"); Dear & Zipperstein, supra at 2 (noting that "negligence, reckless, and intentional conduct--the three traditional classifications of fault--are not different in kind, but merely reflect degrees of violation of a common social norm"); Leibman, supra; Hollister, supra at 135-136. As one commentator notes, this rationale should be rejected for two reasons: "First, although the conclusion that intent and negligence are different in kind sounds appealing, significant doubt exists that they are. Second, even if they are different in [650 So.2d 726] kind, that is not a sufficient reason to require that one of two faulty people bear the entire loss." Hollister, supra at 135-36.

The contrary view that intentional torts are different in kind is based on the fictional notion that " '[t]he law of intentional torts constitutes a separate world of legal culpability.' " Leibman, supra at 693 n. 86 (quoting Mills v. Reynolds, 807 P.2d 383 (Wyo.1991) (Urbrigkit, J., dissenting)). That view of tort law consisting of compartmentalized concepts of legal culpability, however, has never been the law in this state and is inconsistent with the "fault" [93-2818 La. 9] concept embodied in our comparative fault law. Consequently, I would join the New Jersey Supreme Court in concluding that intentional torts and negligent torts are not "different in kind," but rather "different in degree." See Blazovic, supra.

Furthermore, this "apples and oranges" argument can easily be rejected in jurisdictions, like Louisiana, that have extended comparative fault to strict liability torts. Hollister, supra at 142. Indeed, intentional torts, at least on a conceptual level, are more capable of comparison against negligent torts than are strict liability torts. Strict liability torts are premised on a tortfeasor's status or relationship and not on actual fault; whereas, both intentional and negligent torts are premised on the tortfeasor's actual fault. Hence, "[a]lthough courts in extending comparative principles to strict tort liability actions have gone so far as to allow comparison of conduct truly dissimilar (fault compared with no-fault), we do not need to venture so far in order to extend comparative principles to appropriate intentional tort cases." Dear & Zipperstein, supra at 36.

The final rationale voiced against applying comparative fault to intentional torts, also relied on by the majority, is that it will decrease the deterrent or punitive aspects of tort recovery. This rationale is especially weak in jurisdictions, like Louisiana, that generally do not recognize punitive damages. Hollister, supra at 146 n. 100 (observing that "[a]ll these states [that do not recognize punitive damages, including Louisiana] have determined that punishment is not a proper function for tort law, and thus they should not cite punishment as a justification for prohibiting comparative fault"); Mitigation Comment, supra at 118 (noting that "[n]owhere has Louisiana law recognized that an intentional tortfeasor should be punished for his acts. Other states, who deal firmly with intentional tortfeasors and attempt to deter such actions, allow punitive damages to be awarded"). I thus find this rationale inapposite to the Louisiana comparative fault law.

The position that comparative fault principles should be applied to intentional torts is buttressed by the New Jersey Supreme Court's holding in Blazovic v. Andrich, 124 N.J. 90, 590 A.2d 222, 227-231, 18 A.L.R.5th 1031 (1991). There, the New Jersey court, in reaching the same result, premised its holding by noting that it was "unpersuaded by the decisions of other jurisdictions that reject apportionment of fault in actions involving intentional tortfeasors." 590 A.2d at 231. Continuing, the New Jersey court, as I would do, rejected the three historically [93-2818 La. 10] advanced policy rationales cited in support of the prevailing majority position, writing:

Those decisions derive from an earlier era when courts attempted to avoid the harsh effect of the contributory negligence defense and sought to punish and deter intentional tortfeasors. Refusal to compare the negligence of a plaintiff whose percentage of fault is no more than fifty percent with the fault of intentional tortfeasors is difficult to justify under a comparative-fault system in which that plaintiff's recovery can be only diminished, not barred.

Moreover, we reject the concept that intentional conduct is "different in kind" from both negligence and wanton and willful conduct, and consequently cannot be compared with them. Instead, we view intentional wrongdoing as "different in degree" from either negligence or wanton and willful conduct.... Neither that difference nor the divergence between intentional conduct and negligence precludes comparison by a jury. The different levels of culpability inherent in each type of conduct will merely be reflected in the jury's apportionment of fault. By viewing the various types of tortious conduct in that way, we adhere most closely to the guiding principle of comparative fault--to distribute [650 So.2d 727] the loss in proportion to the respective faults of the parties causing that loss. Thus, consistent with the evolution of comparative negligence and joint-tortfeasor liability in this state, we hold that responsibility for a plaintiff's claimed injury is to be apportioned according to each party's relative degree of fault, including fault attributable to an intentional tortfeasor.

Apportionment of fault between intentional and negligent parties will not eliminate the deterrent or punitive aspects of tort recovery. Where tortious conduct merits punitive as well as compensatory damages, a plaintiff's comparative fault will reduce recovery only of compensatory damages.

590 A.2d at 231. Moreover, the court rejected the argument that the business owner whose negligence facilitated the commission of a crime on its property would be any less compelled to protect against such future actions by assessing damages in proportion to fault. Id. at 233.

Recapping, the comparison of an intentional tortfeasor's fault against a negligent tortfeasor's fault is consistent both with the statutory language and the underlying policies of the Louisiana comparative fault law and the concept of limited solidary liability between joint tortfeasors.

Applying the above principles to the facts of the instant case, I would first conclude that the lower courts erred, as a matter of law, in failing to require the allocation of fault between the negligent defendant, Southmark, and the intentional tortfeasor, the phantom rapist. Unquestionably, there was evidence that the rapist's despicable criminal acts were the most significant contributory cause of plaintiff's damages, thus requiring under LSA-C.C.P. Art. 1812(C) and Gauthier, supra, the allocation of fault to the phantom rapist. The lower courts thus erred in allocating all the fault to Southmark, requiring that the JNOV be vacated. While neither lower court considered the rapist's fault, this court should, based on the complete [93-2818 La. 11] record before us, reallocate the fault among the parties and amend the judgment accordingly. Gonzales v. Xerox Corp., 320 So.2d 163 (La.1975); Otto v. State Farm Mut. Auto. Ins. Co., 455 So.2d 1175 (La.1984); Ragas v. Argonaut Southwest Ins. Co., 388 So.2d 707 (La.1980); Rossell v. ESCO, 549 So.2d 840 (La.1989).

As to plaintiff, the lower courts correctly concluded that she was free from fault. In this regard, I agree with the court of appeal that the record is devoid of any evidence to support a finding that plaintiff somehow was responsible for her own rape. Veazey, 625 So.2d at 681. Likewise, I agree with the majority opinion that the lower courts did not manifestly err in concluding that Southmark was at fault, despite Southmark's vigorous contentions to the contrary.

I now address the question of how to allocate fault between Southmark and the phantom rapist. In this regard, I note the reality that a jury ordinarily will apportion the lion share of the fault to the intentional tortfeasor and the remaining fault to the negligent parties according to their level of culpability. Dear & Zipperstein, supra. I further note, as the Louisiana appellate courts have recognized in applying comparative fault principles to assault and battery cases, that the factors we articulated in Watson v. State Farm Fire and Cas. Ins. Co., 469 So.2d 967 (La.1985), are well-suited for assisting in this comparison. Specifically, Watson sets out the following factors for apportioning fault among joint tortfeasors:

In assessing the nature of the conduct of the parties, various factors may influence the degree of fault assigned, including: (1) whether the conduct resulted from inadvertence or involved an awareness of the danger, (2) how great a risk was created by the conduct, (3) the significance of what was sought by the conduct, (4) the capacities of the actor, whether superior or inferior, and (5) any extenuating circumstances which might require the actor to proceed in haste, without proper thought. And, of course, as evidenced by concepts such as last clear chance, the relationship between the fault/negligent conduct and the harm to the plaintiff are considerations in determining the relative fault of the parties.

Id. at 974. Moreover, we noted in Watson that " '[i]n determining the percentages of fault, the trier of fact shall consider both the nature of the conduct of each party at fault [650 So.2d 728] and the extent of the causal relation between the conduct and the damage claimed.' " Id. It follows that the concept of comparative causation we adopted in Howard v. Allstate Ins. Co., 520 So.2d 715 (La.1988), for strict liability cases can also be used in making this comparison.

Applying the Watson factors and comparative causation to the instant facts, I find that although Southmark's negligence contributed to plaintiff's injury, its negligence was not the [93-2818 La. 12] major cause of plaintiff's damages; the major cause of plaintiff's damages was the rapist's conduct. Accordingly, I would find the appropriate allocation of fault to be 90% to the phantom rapist and 10% to Southmark.

As noted, the issue before us has a second facet: how to treat the fault assessed to the nonparty intentional tortfeasor? Stated otherwise, having decided that the nonparty, intentional tortfeasor's fault must be quantified and having quantified that fault, it must now be decided how to treat the intentional tortfeasor's fault which is thus determined. One commentator suggests that the ratio approach adopted in Gauthier v. O'Brien, 618 So.2d 825 (La.1993), for the employer-employee-third party tortfeasor setting, should likewise be adopted for the phantom tortfeasor setting. D. Robertson, Solidary Liability in Tort: Understanding Gauthier and Touchard, Who Pays How Much?, Part 2, 41 La.Bar J. 334, 335 (1993) (suggesting that "[t]here is no good reason not to use the ratio approach so as to treat all phantom tort-feasors the same way"). The commentator concedes, however, that Gauthier can be read as limiting the ratio approach to "parties," given the following language in Gauthier, "the judge, after the jury has returned a verdict, should disregard the proportion of fault assessed to the employer and reallot the proportionate fault of all other blameworthy parties." Gauthier, 618 So.2d at 833 (emphasis supplied).

There is a difference between an immune tortfeasor (specifically an employer immune from tort liability under the worker's compensation law) and a tortfeasor who is subject to liability, solidarily to an extent with the defendant tortfeasor, but is not a party to the suit for one reason or another, perhaps plaintiff's choice or, as in this case, because identity of the tortfeasor is unknown.

Application of the ratio approach of reallocating employer fault on the basis of proportionate fault of other blameworthy parties in Gauthier, supra, was done in the context of the employer-employee-third party tortfeasor setting in order to minimize the adverse impact on the employee by reason of the employer's fault, consistent with the worker's compensation-statutory immunity scheme. It does not necessarily follow that the ratio approach should be applied outside of the worker's compensation-statutory immunity setting to a case in which the nonparty tortfeasor is not statutorily immune from liability, and does not have any special relationship to plaintiff.

[93-2818 La. 13] Absent the special circumstances arising in the employer-employee-third party tortfeasor setting, the application of the ratio approach should not be extended, and the provisions of LSA-C.C. Art. 2324 should be applied in a straightforward manner. The fault of all parties should be quantified. Applying my findings in this case, under LSA-C.C. Art. 2324, defendant Southmark's liability based on 10% fault is solidary with that of the nonparty, intentional tortfeasor to the extent of 50% of plaintiff's recoverable damages and to that extent a portion of the nonparty's fault is, in effect, allocated to defendant. Allocation to defendant of the entire 90% fault of the nonparty intentional tortfeasor on a ratio basis in this case in which plaintiff is free from fault would result in casting the 10% at fault, negligent tortfeasor for 100% of the plaintiff's damages, a result entirely contrary to the provisions of LSA-C.C. Art. 2324, which limit that tortfeasor's solidary liability to 50% of plaintiff's damages. While the plaintiff's recovery is, of course, adversely affected more than if the nonparty tortfeasor's fault were ignored or allocated on a ratio basis, the plaintiff nonetheless is permitted to recover a large part of her damages--substantially more than the negligent defendant's proportionate share of the fault--which is an equitably justifiable result.

[650 So.2d 729] For the reasons set forth in this dissent, I would amend the judgment of the trial court, as affirmed by the court of appeal, to reallocate fault 10% to the defendant, Southmark Management Corporation, and 90% to the nonparty, phantom rapist, and to cast Southmark for 50% of plaintiff's damages, that is, $90,000.

[93-2818 La. 1] LEMMON, Justice, dissenting.

The comparative fault system in Louisiana, which became effective in 1980, has proved to be fair and equitable. Much of this fairness is attributable to the simplicity of the system. Human beings learn from childhood to attribute fault, and while there have been exceptions, jurors have handled their duties well in the comparative fault system.

Another factor in the success of comparative fault is that this court has applied the system uniformly across the board, without exception. Prior attempts in this court to create exceptions have arisen in the context of comparing the tortfeasor's fault with the tort victim's contributory negligence, and this court, cognizant of the myriad of exceptions that had been created in reaction to the harshness of the all-or-nothing contributory negligence system, has declined to approve exceptions that were no longer necessary.^[1]

[93-2818 La. 2] The majority has now created an exception in this case, purportedly because of the difficulty of comparing negligent conduct with intentional conduct. But negligent acts and intentional acts are simply two different degrees of "fault," a term in La.Civ.Code art. 2315 that this court has long recognized includes more than mere negligence. See Langlois v. Allied Chem. Corp., 258 La. 1067, 249 So.2d 133 (1971); Inabnet v. Exxon Corp., 642 So.2d 1243 (La.1994). Negligent torts and intentional torts are not different in kind, but rather are different in degree. Blazovic v. Andrich, 124 N.J. 90, 590 A.2d 222 (1991).

In the present case, the fault of two tortfeasors combined to produce the single injury to the tort victim. In such a case, solidary liability for the damages from the victim's injury arises by operation of law. La.Civ.Code art. 2324. The Civil Code also prescribes the operation of solidarity, both as between the tortfeasors themselves, La.Civ.Code art. 1804, and in relation to the fault of the tort victim, La.Civ.Code art. 2324.

The solidarity prescribed by the Civil Code for joint tortfeasors is the underlying reason why the majority refuses to consider an intentional tortfeasor and a negligent tortfeasor as joint tortfeasors (although the fault of each unquestionably combined to produce a single injury). Because the Legislature in 1987 placed a limitation on solidarity, the result of comparing the fault of an intentional tortfeasor with that of a negligent tortfeasor is to reduce the tort victim's recovery when the negligent tortfeasor is solvent and the intentional tortfeasor is an insolvent or unidentified criminal.^[2] Nevertheless, the fact that the Legislature has seen fit to limit the civilian concept of solidarity should not induce [93-2818 La. 3] this court to vary from our consistent policy of applying comparative fault across the board, at least as between tortfeasors.

The majority's position that comparing negligent conduct with intentional conduct is difficult simply does not ring true. As stated earlier, negligent conduct and intentional conduct are not different in kind, but are only different in degree. The spectrum of degrees of fault runs from simple negligence to gross negligence to willful and wanton conduct to intentional conduct. No one has ever suggested that simple negligence by one [650 So.2d 730] tortfeasor should not be compared to gross negligence by a second tortfeasor when the conduct of the multiple tortfeasors combines to produce a single injury, even though the two are different in degree. Difficulty of comparison is a hollow basis for refusing to apply comparative fault uniformly.^[3]

One could more rationally argue that one tortfeasor's negligence cannot or should not be compared with another's strict liability. Consider, for example, the facts of Dusenbery v. McMoRan Exploration Co., 458 So.2d 102 (La.1984), a pre-comparative fault case. There, the plaintiffs' decedent was killed when McMoRan's well exploded because a welding subcontractor had installed a nipple in the well's pressure system that was lighter than the nipple required by the specifications. McMoRan, who was strictly liable solely because of its status as [93-2818 La. 4] owner of the well, was held solidarily liable to the plaintiffs for their damages, although McMoRan was allowed one hundred percent indemnity against the welding contractor. Had this accident occurred during the comparative fault regime, one would have difficulty in comparing the welding contractor's negligence with any "fault" on the part of the strictly liable defendant.

Nevertheless, since the advent of comparative fault, this court has applied comparative fault in a strict liability situation (although the case did not involve multiple tortfeasors).^[4] In Howard v. Allstate Ins. Co., 520 So.2d 715 (La.1988), this court compared the fault of a strictly liable defendant with that of a contributorily negligent tort victim, when an eleven-year old girl went through two gates and a "Beware of Dog" sign into a yard where she was bitten by defendant's dog. This court affirmed the trial court's finding of fifty percent fault by the child. See also Landry v. State of Louisiana, 495 So.2d 1284 (La.1986) (comparative fault applies to reduce the recovery of a plaintiff under La.Civ.Code art. 2317 against the strictly liable Levee Board when the plaintiff negligently failed to see the hole in the ground next to the sea wall). The comparison of fault in a strict liability situation is much more conceptually difficult than a comparison between negligent and intentional conduct. Nevertheless, uniform application of a comparative fault system dictates application of the less conceptually difficult comparison of the fault of a rapist with the fault of an apartment manager whose negligence made the rapist's entry into the victim's apartment easier to accomplish and contributed to the victim's single injury.

[93-2818 La. 5] Finally, while deterrence of substandard conduct is a major goal of the tort system, I cannot say that the legislative mandate requiring payment of fifty percent of the tort victim's total damages by a tortfeasor who is perhaps ten percent at fault will not serve a deterrent purpose.

[93-2818 La. 1] CALOGERO, Chief Justice, concurring in denial of rehearing.

I concur in the denial of rehearing because I agree that the result reached in the original hearing of this case, i.e. allowing the plaintiff to recover 100% of her damages from the negligent tortfeasor, Southmark, was a correct one and should not be disturbed. I would vote to grant a rehearing revisiting [650 So.2d 731] only the legal issues, but reconfirming the judgment on original hearing, if there were a majority agreeing upon a legal rationale in support of the majority's result on original hearing. See Lone Star Industries, Inc. v. American Chemical, 491 So.2d 1333 (La.1986) (on rehearing ). However, since I perceive the Court to be badly split on this issue, and since I note that at least four justices agree with the result on original hearing, I vote to deny rehearing in this case.

I write separately to voice my disagreement (for the same reasons set forth in the dissenting opinion of Justice Hall) with the rationale of the majority opinion, essentially that a trial court may elect, on an ad hoc basis, to withhold from the jury consideration of the fault of an intentional tortfeasor. See Gauthier v. O'Brien, 618 So.2d 825 (La.1993); Lemire v. NOPSI, 458 So.2d 1308 (La.1984). In my opinion the relevant articles of our Civil Code establish a preferable mode of analysis which obviates the need to allocate fault between the intentional and negligent tortfeasors in this case, preserving the 100% recovery of the plaintiff from the negligent defendant, Southmark.

[93-2818 La. 2] I. The majority opinion misapplies the concept of comparative fault

The majority opinion as well as the dissenting opinions discuss extensively why "comparative fault" principles should apply in this case. "Comparative fault" is defined by LSA-C.C. Art. 2323, and should apply only to a comparison of fault between a plaintiff and a defendant. The practice of allocating fault between defendants does not arise because of "comparative fault" principles, but rather as a process of determining the "virile portion" of a defendant's share of a solidary obligation. See LSA-C.C. Arts. 1797, 1804. The majority's decision to extend a "comparative fault" mode of analysis to the allocation of fault among solidary tortfeasors is an unnecessary extension of the jurisprudence explaining LSA-C.C. Art. 2323 to an area of law which is controlled instead by the codal articles treating solidary obligations, particularly LSA-C.C. Art. 1804.

Much of the confusion in this area is attributable to the 1987 amendment to LSA-C.C. Art. 2324(B),^[1] which limited the liability of a negligent tortfeasor solidarily liable with another tortfeasor to his percentage of fault or 50% of total recoverable damages, whichever was greater. Before 1987, there was no need to quantify a percentage of fault among solidary tortfeasors other than for purposes of contribution among them; the plaintiff could collect 100% of his damages, minus any amount dictated by application of [93-2818 La. 3] the "comparative fault" rule of LSA-C.C. Art. 2323, from any defendant. After the 1987 amendment, however, it was necessary to quantify the fault of multiple tortfeasors not only for purposes of contribution among the defendants, but also to determine how much a plaintiff could recover from a particular defendant. Comparative fault, properly understood, was not part of this equation; it could reduce the plaintiff's total recovery, but it did not authorize or influence the allocation of fault among solidarily liable defendants.

I therefore submit that both the majority and the dissenting opinions in this case err in the scope which they accord the doctrine of "comparative fault" in Louisiana. If this doctrine is to be applied by analogy to the allocation of fault among codefendants, that may be this Court's prerogative, but it should be recognized that these "comparative fault" [650 So.2d 732] principles are being lifted from one context and applied in another. I submit further that this is being done in derogation of the express provisions of the Civil Code which are crafted specifically to deal with the allocation of fault among solidary tortfeasors.

For this reason, I dispute the proposition that this case requires the application of "comparative fault" principles at all. Rather, recourse to our Civil Code provides authority for a more orderly and systematic disposition of this case.

II. Should we "compare" intentional and negligent torts?

As stated above, the answer to the question of whether a negligent plaintiff's recovery should be reduced by damage occasioned by an intentional tortfeasor does not involve any issue of "comparative fault." Rather, in my view, the question is simply whether under LSA-C.C. Art. 1804 we should compare and apportion the "fault" of intentional and negligent tortfeasors.

Whenever the delictual "fault" of a number of persons causes a single injury to a plaintiff, those persons are solidarily bound to repair the damage occasioned by their "fault." LSA-C.C. Arts. 2315 et seq., 1790, 1797. Under LSA-C.C. Art. 1804, "[a]mong solidary obligors, each is liable for his virile portion." "If the [93-2818 La. 4] obligation arises from an offense or quasi-offense, a virile portion is proportionate to the fault of each obligor." LSA-C.C. Art. 1804. Thus, LSA-C.C. Art. 1804 requires that any party at "fault" bears responsibility, in accordance with the proportion of their "fault," for the injured party's damages.

The concept of "fault" in our Civil Code is broad, and as Justice Hall's dissent observes, it clearly includes intentional torts. As Planiol puts it, "[i]n most cases^[2] the intention to harm is not taken into consideration: it is not upon such intention that the licit or illicit character of the act depends." 2 Planiol, Treatise on Civil Law, § 871(B) (11th ed. 1939). When both an intentional and negligent tortfeasor through their "fault" cause injury to a plaintiff, their liability under the general codal scheme is solidary, and therefore a straightforward application of the first paragraph of LSA-C.C. Art. 1804 would seem to indicate that the proportion of fault attributable to each tortfeasor should be determined.

We note that this first paragraph of LSA-C.C. Art. 1804 is limited by the prefix "[a]mong solidary obligors;" in other words, it only operates to regulate contribution among the tortfeasors. Recovery by an injured plaintiff, the delictual obligee, is treated by LSA-C.C. Art. 1790, which gives the injured plaintiff the right to demand the entire performance, i.e. total recoverable damages, from any party at "fault." In the delictual context the general provision of LSA-C.C. Art. 1790 is in turn modified by LSA-C.C. Art. 2324(B), which provides that in the particular setting of solidary tortfeasors other limitations upon a plaintiff's recovery, e.g. the 50% cap on solidarity, apply. However, LSA-C.C. Art. 2324 does not require or even purport to affect the allocation of fault among solidarily liable tortfeasors. Rather, it merely interposes a limitation upon the total recovery of the plaintiff contemplated by the naked application of LSA-C.C. Art. 1790, a limitation that by legislative design mirrors, but does not directly affect, the [93-2818 La. 5] allocation of fault among solidarily liable tortfeasors required by the first paragraph of LSA-C.C. Art. 1804.

A strict application of the first paragraph of LSA-C.C. Art. 1804 would therefore seem to mandate that an intentional and a negligent tortfeasor who are solidarily liable for a plaintiff's damage both be assigned a "virile portion" which is in direct proportion to their amount of "fault." When this allocation of fault is then viewed in the context of the plaintiff's recovery, it also seems that the limitation of LSA-C.C. Art. 2324(B) should then, as Justice Hall suggests, be applied to limit or modify the recovery of the plaintiff. However, I posit that this result only obtains until recourse is made to the express provisions [650 So.2d 733] of the third paragraph of LSA-C.C. Art. 1804.

III. LSA-C.C. Art. 1804 sets out the controlling legal scheme for addressing the difficulties presented by intentional and negligent tortfeasors in the same case

LSA-C.C. Art. 1804, as aforementioned, is the codal basis for the apportionment of fault among solidarily liable tortfeasors. In our current tort scheme, under LSA-C.C. Art. 1804 a determination of the proportion of fault of each tortfeasor is necessary to establish the "virile portion" of that tortfeasor's obligation. Were we still under the rule of complete solidarity, for a case such as the instant one where the plaintiff is not at fault it would be unnecessary to quantify any defendant's fault for purposes of establishing the amount a plaintiff could recover from any particular defendant. Instead, the quantification of a defendant's fault would only be relevant for a contribution action by, in this case, Southmark against the rapist; in the tort suit by the plaintiff, Southmark as a solidary obligor would be liable for the whole. Since 1987, however, LSA-C.C. Art. 2324(B) has forced the trier-of-fact to quantify the defendants' fault in the plaintiff's suit as well, in order to determine the plaintiff's recovery.

I maintain, however, that LSA-C.C. Art. 1804 must be applied in its entirety before the cap on solidarity set forth in LSA-C.C. Art. 2324(B) becomes operative. When the third paragraph of LSA-C.C. Art. 1804 is applied in this case, the need to apply LSA-C.C. [93-2818 La. 6] Art. 2324 is obviated.

The third paragraph of LSA-C.C. Art. 1804 states that "[i]f the circumstances giving rise to the solidary obligation concern only one of the obligors, that obligor is liable for the whole to the other obligors who are then considered only as his sureties." As will be more fully explained infra, applicable civilian precepts suggest that a showing of the commission of an intentional tort as opposed to mere negligence should be read to be such a "circumstance." Therefore, negligent tortfeasors who are solidarily liable with the intentional tortfeasor are, by operation of law, transformed into the sureties of the intentional tortfeasor. The limiting provisions of LSA-C.C. 2324(B) accordingly never become operative because that article only addresses solidary tortfeasors; through the third paragraph of LSA-C.C. Art. 1804, however, the basis of the negligent tortfeasor's liability is no longer as a solidarily bound tortfeasor, but rather as a surety to the intentional tortfeasor's obligation to the plaintiff.

A. The application of the third paragraph of LSA-C.C. Art. 1804 to delictual obligations

Prior to the comprehensive codal revision of 1984, the legal principle currently embodied in the third paragraph of LSA-C.C. Art. 1804 was contained in LSA-C.C. Art. 2106 (1870), which provided that "[i]f the affair for which the debt has been contracted in solido, concern only one of the coobligors in solido, that one is liable for the whole debt towards the other codebtors, who, with regard to him, are considered only as his securities." Prior to the 1984 revision of the Civil Code this article existed "without amendment" from our original Civil Code of 1805. Maryland Cas. Co. v. Liberty Mut. Ins. Co., 254 La. 489, 224 So.2d 465, 468 (1969). As is clear from the text of prior C.C. Art. 2106, the earlier incarnation of this provision was expressly addressed only to conventional obligations, i.e. contracts.

In the 1984 revision, however, a number of related articles from the Civil Code of 1870 were grouped into the current LSA-C.C. Art. 1804, which now reads as follows:

[93-2818 La. 7] Art. 1804. Liability of solidary obligors between themselves

Among solidary obligors, each is liable for his virile portion. If the obligation arises from a contract or quasi-contract, virile portions are equal in the absence of agreement or judgment to the contrary. If the obligation arises from an offense or quasi-offense, a virile portion is proportionate to the fault of each obligor.

A solidary obligor who has rendered the whole performance, though subrogated to the right of the obligee, may claim from the obligors no more than the virile portion of each.

[650 So.2d 734] If the circumstances giving rise to the solidary obligation concern only one of the obligors, that obligor is liable for the whole to the other obligors who are then considered only as his sureties.

Clearly this article as a whole is intended to apply to both conventional and delictual obligations, since the specific rules for each are set out in the first paragraph. In addition, the specific language of the earlier codal provision limiting the effect of what is now the third paragraph of LSA-C.C. 1804 to an obligation "which ... has been contracted in solido " has been deleted; the current article now speaks in terms of a "solidary obligation." In light of the scope of the first paragraph of LSA-C.C. Art. 1804, which expressly embraces both conventional and delictual obligations, it can be presumed that the second and third paragraphs, which address themselves to the broad realm of "obligations," apply to delictual obligations as well.^[3]

In addition, the former LSA-C.C. Art. 2106 was located in Title IV of Book III of the Civil Code, entitled "conventional obligations." Now, after the revision, new article LSA-C.C. Art. 1804 is located in Title III of Book III, entitled "obligations in general." This is even more evidence that the revised article is [93-2818 La. 8] intended to apply to delictual as well as conventional obligations, whereas the former LSA-C.C. Art. 2106 was confined solely to conventional obligations.

Given this, what does the third paragraph of LSA-C.C. Art. 1804 mean in the delictual context? If we assume it means nothing, then the amendments and revisions discussed in the preceding paragraphs are rendered meaningless. If we assume it means something, then this article must contemplate a distinction amongst the degrees of "fault," since under our codal scheme "fault" is the sole basis of delictual liability. I agree with the majority's conclusion that intentional wrongdoing differs from negligence not only in degree but in kind, and note that there is support for this distinction in the commentaries of Planiol.^[4] Furthermore, I think that neither the first paragraph of LSA-C.C. Art. 1804 nor LSA-C.C. Art. 2324(B) lend themselves readily to the comparison of such "apples and oranges." Rather, it is my view that the Civil Code provides different rules in cases which feature tortfeasors with varying levels of blameworthiness, rules that are designed to do substantial justice, in light of the policies which compel the [93-2818 La. 9] imposition of delictual responsibility, to all parties involved.

[650 So.2d 735] There is also some precedent supporting the view that courts should acknowledge, in certain contexts, gradations of "fault" in the tort indemnity concepts discussed in Dusenbery v. McMoran Exploration Co., 458 So.2d 102 (La.1984). Although it is true that Dusenbery applied only to a strictly liable defendant seeking indemnity from a negligent defendant, the analogy is apt since the basis of Dusenbery was that the strictly liable defendant was "less" at fault than the negligent defendant.^[5] The manner of the recovery in Dusenbery, tort indemnity, is practically indistinguishable from the recovery of a surety who has paid the debt of a principal obligor and then may recover from that obligor through subrogation or reimbursement.

I note that I do not read article LSA-C.C. Art. 1804 to mimic or codify Dusenbery; rather, I merely recognize that there is a principle in our jurisprudence for distinguishing degrees of fault and regulating recovery among the tortfeasors. It seems to me sensible to group the vague and rootless doctrine of tort indemnity espoused in Dusenbery (which as an examination of Appalachian Corp., see Note 5, supra, reveals was an importation into our jurisprudence from common law jurisdictions), under the express provisions of LSA-C.C. Art. 1804, i.e. Louisiana codal law. I also observe that the idea of changing the legal relationship of tortfeasors who are guilty of different degrees of fault from that of solidary tortfeasors to some other specie of solidary or vicarious liability (as LSA-C.C. Art. 1804 suggests, suretyship for the negligent tortfeasors who is guilty of a "lesser" degree of fault than the intentional tortfeasor) has been suggested at [93-2818 La. 10] various times by this Court. See, e.g., Hunt v. City Stores, Inc., 387 So.2d 585, 590 (La.1980) ("In the absence of some greater fault being shown on the part of either, the obligation is solidary").

Furthermore, in the case in which there is an intentional tortfeasor this disposition advances the legislative intent expressed by LSA-C.C. Art. 2324. Paragraph A, which provides that there is 100% solidarity between two intentional tortfeasors who "conspire" to cause injury, reveals that the Legislature intended for intentional tortfeasors to be 100% responsible for damages they cause and that they not be subjected to the 50% limitation (related to the "virile portion" or proportion of fault discussed in LSA-C.C. Art. 1804) upon the solidarity of negligent tortfeasors found in Paragraph B. If we compare intentional and negligent tortfeasors without distinction, as several of the dissenting opinions seem to indicate we should, this legislative directive is undermined. The application of the third paragraph of LSA-C.C. Art. 1804, as interpreted herein, eliminates this problem by ensuring that a case presenting a mixture of intentional and negligent tortfeasors never gets to LSA-C.C. Art. 2324. LSA-C.C. Art. 2324 is meant to be a limitation upon solidarity in tort; if negligent tortfeasors are viewed as sureties of the intentional tortfeasors, LSA-C.C. Art. 2324 would not apply to limit their obligation because the amount that they owe would be based not upon their own delictual responsibility but solely upon the obligation of the principal obligor, i.e. the intentional tortfeasor.

B. Application of these principles to this case

In Great S.W. Fire Ins. v. CNA Ins., 557 So.2d 966, 969 (La.1990), this Court discussed how LSA-C.C. Art. 1804, in conjunction with other relevant codal articles, works in a contractual context:

In general, the solidary obligor who extinguishes the debt is entitled to a right of contribution against his codebtors, but must divide his action so that he can demand from each one of them no more than his virile portion. La.C.C. art. 1804. There are exceptions to the rule, however. [650 So.2d 736] If the obligation arises from a contract or quasi-contract, the circumstances or agreement by the parties may cause the court to apportion liability differently. It may also appear that one of the obligors should be liable for the whole debt because he is to be considered as the principal obligor. La.C.C. art. 1796. [93-2818 La. 11] See also Levasseur, supra, at 103-104. In such a case the other obligors will stand as sureties for the principal obligor. La.C.C. arts. 1804, 3035, 3037.

The transposition of this scheme to a delictual setting can be illustrated by the facts of the instant case.

In this case, there is an intentional tortfeasor, the rapist, and a negligent tortfeasor, Southmark, the liability of both being a proper subject for the consideration of the trier-of-fact. The nature of the obligation owed by each, as previously discussed, is different. Therefore, upon a finding of liability based upon different degrees of delictual "fault," by operation of the third paragraph of LSA-C.C. Art. 1804 the treatment of Southmark's liability should no longer fall under the delictual articles, e.g. the 50% cap on solidarity in LSA-C.C. Art. 2324, but rather under the suretyship articles. In other words, the basis for the plaintiff's recovery against Southmark is no longer founded solely in tort; rather, Southmark is transformed by operation of law into a surety of the rapist's obligation towards the plaintiff, and the suretyship articles provide the mechanism for the plaintiff's recovery from Southmark and Southmark's recourse against the intentional tortfeasor.

Under this approach, the result in this case is the same; Southmark owes 100% of the obligation owed by the intentional tortfeasor as surety to that debt. Southmark, having paid that debt, enjoys all of the rights of reimbursement and subrogation against the intentional tortfeasor, should he ever be located, sued, and cast in judgment, that a surety who has performed the principal obligation has against a principal obligor under the suretyship articles. There is no matter of "comparing" fault or determining whether a party at fault should be allocated blame; comparative fault, properly understood and applied, i.e. a comparison of plaintiff and defendant(s) fault, is a matter reserved for assessing relative blame between the plaintiff and the intentional tortfeasor. Since Southmark through LSA-C.C. Art. 1804 is only liable as surety for the intentional tortfeasor, it may not urge a comparison of its fault to the plaintiff; rather, the [93-2818 La. 12] derivative nature of Southmark's liability under the applicable codal articles instructs that it is the comparison of the fault of the intentional tortfeasor and the plaintiff, if such a comparison is warranted by an application of "comparative fault" principles, that is proper. If the rapist is cast for the 100% of damages,^[6] Southmark as surety (assuming negligence on Southmark's behalf, which is the case here) has to pay, and its recourse against the rapist is under the suretyship articles.^[7]

Thus, under the facts of this case LSA-C.C. Art. 2324 never comes into play because under our analysis only the intentional tortfeasor ever becomes amenable to the application of LSA-C.C. Art. 2324, the negligent tortfeasor having been removed from its operation and relegated to treatment under the suretyship articles by the third paragraph of LSA-C.C. Art. 1804. That is because prior to the application of the provisions of LSA- [650 So.2d 737] C.C. Art. 2324(B), the third paragraph of LSA-C.C. Art. 1804 mandates that Southmark's quasi-delictual liability be treated not under the delictual articles, but rather under the suretyship articles. There is therefore no need to allocate fault among the tortfeasors; Southmark's liability, although quasi-delictual in origin, is derivative of the rapist's delictual liability, see Note 4, supra, and since the rapist is an intentional tortfeasor and the plaintiff is not at fault the rapist is responsible for 100% of the [93-2818 La. 13] plaintiff's damages.^[8]

IV. Conclusion

In this case, the plaintiff was not at fault; therefore, the liability of the tortfeasors should be 100%. Furthermore, the application of LSA-C.C. Art. 1804, particularly its third paragraph, leads me to the conclusion that in this case the basis of Southmark's liability to the plaintiff should be in its role as surety, by operation of law, to the intentional tortfeasor/rapist. Accordingly, the plaintiff should be able to recover 100% of her damages from the negligent tortfeasor as surety to the delictual obligation of the intentional tortfeasor. Once that recovery has occurred, the negligent tortfeasor is able to seek whatever remedies the suretyship articles afford him against the principal obligor/intentional tortfeasor.

As this result indicates, the system that I make recourse to does not impair the recovery of the plaintiff in any way; thus, I concur in the result on original hearing and concur in the denial of rehearing. This approach only has a substantial application to situations where there exist different degrees of fault, e.g. intentional tort v. negligence v. strict liability, situations which have been treated often, albeit less than systematically, in our jurisprudence.

In this particular case although the rapist bears complete blame for his act, a conclusion which is at least as deeply ensconced in common sense as it is in legal principle, nevertheless the injured party is entitled to collect 100% of her damages from the negligent tortfeasor. Furthermore, this system also ties the hazy notion of "tort indemnity" to a solid codal basis, reserving to the negligent tortfeasor who is cast in judgment extensive recovery rights under the suretyship articles against the intentional tortfeasor.

It should be stated that the approach endorsed herein would not impact at all the large majority of cases where fault is similar in kind, albeit possibly in different proportions, e.g. several negligent tortfeasors. Shifting our analysis to the general obligations articles and away from the exhausted language of LSA-C.C. Arts. 2323 and 2324 would, however, allow this Court to stop treating problems such as those presented in this case on an ad hoc basis and allow more ready recourse to the time-honored and considered legal system of our Civil Code.

Thus, for the reasons presented herein, I respectfully concur in the denial of the application for rehearing.

ON REHEARING

WATSON, Justice, concurring in denial of rehearing.

I concur to emphasize my disagreement with the majority's determination that the trial court must decide on a case-by-case basis whether intentional and negligent fault should be compared.

As I stated in my original concurrence, intentional fault cannot be logically compared with negligent fault or the fault of the injured victim.

I respectfully concur in denial of rehearing.

[*] Justice Revius O. Ortique, Jr., retired, participating in the decision by assignment, the case having been argued prior to his retirement.

Justice Marcus not on the panel. Rule IV, Part 2, § 3. Judge Charles A. Marvin, Chief Judge, Court of Appeal, Second Circuit, sitting in place of Dennis, J.

[1] La.Code Civ.Pro. art. 1812(C)(2), provides:

C. In cases to recover damages for injury, death, or loss, the court may submit to the jury special written questions inquiring as to:

(2) If appropriate, whether another person, whether party or not, other than the person suffering injury, death, or loss, was at fault, and, if so:

(a) Whether such fault was a legal cause of the damages, and, if so:

(b) The degree of such fault, expressed in percentage.

[2] The relevant interrogatories and the jury's responses are follows:

INTERROGATORY NO. 1:

With respect to the defendant, Southmark Management Corporation: Was Southmark Management Corporation at fault with respect to the incident and did the fault produce or substantially contribute to the incident?

Yes No

INTERROGATORY NO. 2:

With respect to the plaintiff, Christi Veazey: Was the plaintiff, Christi Veazey, at fault with respect to the incident and did that fault produce or substantially contribute to the incident?

Yes No

INTERROGATORY NO. 3:

What percentage of Ms. Veazey's damages do you find were caused by Southmark Management Corporation, if any? What percentage of Ms. Veazey's damages should be reduced by the fault of Ms. Veazey, if any?

Southmark Management Corporation [60%]

Ms. Christi Veazey [40%]

(Percentage must total 100%)

[3] Act 331 of 1984 (effective January 1, 1985), which rewrote the Civil Code provisions on obligations, moved the rules regarding contribution contained in former La.C.C. art. 2103 to La.C.C. arts. 1804 and 1805. The official revision comments to those articles indicate that the revision did not change the law. Cole v. Celotex, 599 So.2d 1058, 1068 n. 31 (La.1992).

[4] Act 534 of 1983 moved the contents of former La.Code Civ.Pro. art. 1811 to La.Code Civ.Pro. art. 1812(C) and added the phrase "whether party or not" to Article 1812(C)(2) to clarify that nonparties' fault may be considered. See Official Revision Comments to La.Code Civ.Pro. art. 1812. La.Code Civ.Pro. art. 1917, which deals with nonjury cases, cross references La.Code Civ.Pro. art. 1812(C), providing that "the court shall make specific findings that shall include those matters to which reference is made in Paragraph C of Article 1812 of the Code."

[5] La.C.C. art. 1804 provides that "among solidary obligors, each is liable for his virile share" and when that "obligation arises from an offense or quasi-offense, a virile portion is proportionate to the fault of each obligor." The comments note that this approach is consistent with the theory of comparative negligence.

[6] La.C.C. art. 2323 provides:

When contributory negligence is applicable to a claim for damages, its effect shall be as follows: If a person suffers injury, death or loss as the result partly of his own negligence and partly as a result of the fault of another person or persons, the claim for damages shall not thereby be defeated, but the amount of damages recoverable shall be reduced in proportion to the degree or percentage of negligence attributable to the person suffering the injury, death or loss.

[7] La.C.C. art. 2315 provides, in pertinent part, as follows:

Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it. (Emphasis supplied).

[8] A "logomachy" is "a dispute over or about words." Webster's Ninth New Collegiate Dictionary (1990).

[9] As noted in Hebert, supra, the majority view among courts in other jurisdictions that have addressed this issue is that comparative fault is inapplicable to intentional torts. See A. Schwartz, Applicability of Comparative Negligence Principles to Intentional Torts, 18 A.L.R.5th 525, 532 (1994); H. Woods, Comparative Fault § 7.1 (2d Ed.1987); V. Schwartz, Comparative Negligence §§ 5.1 and 5.2 (2d Ed.1986). Speaking on this issue, the Uniform Comparative Fault Act generally follows the majority position, stating in the comments that "[t]he Act does not include intentional torts [because] statutes and decisions have not applied the comparative fault principle to them. But a court determining that the general principle should apply at common law to a case before it of an intentional tort is not precluded from that holding by the Act." Appendix, Uniform Comparative Fault Act (1979), 40 La.L.Rev. 419, 422 (1980).

[10] The lower courts correctly determined that the plaintiff herein was free from fault. We therefore need not, and do not, express any opinion in this case as to whether, or in what situations, if any, victim fault should be compared to the fault of an intentional tortfeasor.

[11] See, e.g., Pamela B. v. Hayden, et al., 25 Cal.App.4th 785, 31 Cal.Rptr.2d 147 (Cal.App.2d Dist.) writ granted, 33 Cal.Rptr.2d 568, 880 P.2d 112 (Cal.1994). In Pamela B., the plaintiff was raped in the garage of her apartment building. Plaintiff sued her landlord and the property management company in charge of her building, contending their inadequate attempts to provide a secure garage caused her rape. California law requires comparison of intentional torts and negligence, and the jury in this case awarded $1.2 million to plaintiff, attributing 95% of the fault to the landlord and management company, 4% to the man who raped her, and 1% to the rapist's accomplice who aided and abetted the rapist!

The appellate court reversed and remanded the case for a new trial on apportionment of damages, noting that "it is reasonable to assume the jury will apportion fault so that the one who acted intentionally should bear 'most if not all the blame'." (Citing Knott v. State of California, (1994) 23 Cal.App.4th 210, 234, 28 Cal.Rptr.2d 514). This proposition prompted one of the appellate court judges to note in his concurrence:

... But what allocation could be upheld on appeal? Is it not per se unreasonable to assess negligence at a higher rate than intentional, wanton criminal activity? Although the result would not be as shocking as what we have here, could we justify holding the owner and manager even 51 percent responsible?

It is ironic that plaintiff suffers reversal because her extremely able counsel was able to get such a result from the jury. Had the jury, for example, assessed the criminals at any higher percentage than the tortfeasors, the verdict would be easier to uphold. What is a trial lawyer to do? The more persuasive one is, the less likely the result will survive appeal. This turns the concept of advocacy on its ear. What kind of credibility does all this lend to the justice system?

Pamela B., 25 Cal.App.4th at 806, 31 Cal.Rptr.2d at 161 (Ortega, J., concurring).

The questions raised by the concurring judge in the Pamela B. case highlight the inherent difficulties advocates of comparing the fault of an intentional tortfeasor and a negligent tortfeasor have in addressing the common sense question: "in such a comparison, how can a rapist (or virtually any intentional tortfeasor) not be 100% liable for his actions?" The common sense answer, i.e., that the intentional tortfeasor is, by definition, always 100% liable for his intentional acts which have caused damages, simply serves to reinforce Dean Prosser's assessment that intentional wrongdoing "differs from negligence not only in degree but in kind...."

[12] While we are aware of the argument which has been advanced by at least one court and several commentators that the application of comparative fault principles in the context of strict liability is conceptually more difficult than application of such principles where fault is based on intentional wrongdoing and negligence, see Blazovic, supra; Dear & Zipperstein, supra at 2, this argument is based on the premise that strict liability torts are premised on a tortfeasor's status or relationship to the property or thing, and not on actual fault. Hence, the argument goes, if it is possible to compare the "fault" of one who has no actual fault (the strictly liable party) and one who does have actual fault (the negligent party), it certainly is possible to compare the "fault" of two parties (the intentional tortfeasor and a negligent tortfeasor) whose liability is based entirely on their actual fault.

This line of reasoning ignores the fact that while strict liability is based on the tortfeasor's status or relationship to the property or thing which caused the harm, determinations as to both liability and comparative fault are made on the basis of the strictly liable defendant's imputed knowledge of the of the risk, which in turn, is based on the party's status or relationship to the property or object which produced the harm. See Kent v. Gulf States Utilities Co., 418 So.2d 493, 497-98 (La.1982) ("Accordingly, in a strict liability case ... the standard for determining liability is to presume the owner's knowledge of the risk presented ... and then to determine the reasonableness (according to traditional notions of blameworthiness) of the owner's conduct, in light of that presumed knowledge." [Emphasis in original] ). As was stated in a concurring opinion in Kent, supra: "In strict liability, however, knowledge of the condition of the product is imputed to the defendant before the balancing test or negligence test is applied." Id. at 501 (Dennis J., concurring) (Emphasis added). See also T. Galligan, Jr., Strict Liability in Action: The Truncated Learned Hand Formula, 52 La.L.Rev. 323, 329 (1991) ("Lemmon's approach [in Kent, supra] reminds us that strict liability is negligence without knowledge." [Emphasis added]).

Therefore, in a case where comparative fault principles are being applied between the defendant whose liability is based on negligence and the defendant whose liability is based on strict liability, after the imputation of the knowledge element to the strictly liable defendant the determination being made as to the defendants' comparative fault is effectively one of negligence versus negligence. Such a comparison, in our view, is conceptually much simpler than a comparison of negligence based fault and fault based on an intentional act.

[13] As occurred in the instant case, the procedural mechanism by which a party may request submission to the jury of a special interrogatory regarding phantom tortfeasor fault is set forth in La.Code Civ.Pro. art. 1812(C)(2). See supra, note 1. Though we are aware of our prior holdings construing La.Code Civ.Pro. art. 1812(C), see, e.g., Gauthier v. O'Brien, 618 So.2d 825, 831 (La.1993) (holding that "[f]ailure to submit a special jury interrogatory to the jury to determine the fault, if any, of a third party constitutes error"); Lemire v. New Orleans Public Service, Inc., 458 So.2d 1308, 1309 (La.1984) (holding that "[w]hile La.C.C.P. art. 1812C provides that the court may (unless waived by all parties) submit special written questions to the jury, the apparent intent is that the court in such circumstances is required to submit the questions"), those cases involved comparisons of negligence. Hence, Gauthier and Lemire mandate the submission of such special interrogatory, when appropriate.

Submission of such a special interrogatory becomes appropriate in a negligence case when evidence supporting a finding of fault on the part of a phantom tortfeasor is presented. Brock v. Winn Dixie Louisiana, Inc., 617 So.2d 1234, 1238 (La.App. 3d Cir.), writ denied, 620 So.2d 848 (La.1993) (citing Devereux v. Allstate Ins. Co., 557 So.2d 1091 (La.App.2d Cir.1990)). When such evidence exists, the trial court's refusal to submit such special interrogatory to the jury to permit the allocation of fault to the phantom tortfeasor is erroneous. Gauthier, 618 So.2d at 831. However, submission of such an interrogatory in a strict liability case or an intentional tort case only becomes appropriate where the trial court has determined that the public policy bases discussed herein are not present.

__________

[1] By "phantom tortfeasor" is meant "anyone whose fault may have contributed to the plaintiff's injuries but who has neither settled with the plaintiff and been released from liability nor been made a party to the lawsuit." D. Robertson, Solidary Liability in Tort: Understanding Gauthier and Touchard, Who Pays How Much?, Part 2, 41 La.Bar J. 334 (1993).

[2] LSA-C.C.P. Art. 1812(C)(2) provides as follows:

C. In cases to recover damages for injury, death, or loss, the court may submit to the jury special written questions inquiring as to:

(2) If appropriate, whether another person, whether party or not, other than the person suffering injury, death, or loss, was at fault, and, if so:

(a) Whether such fault was a legal cause of the damages, and, if so:

(b) The degree of such fault, expressed in percentage. (Emphasis supplied).

[3] Solidary liability is the civilian equivalent to the common law joint and several liability concept. Touchard v. Williams, 617 So.2d 885, 889 (La.1993).

[4] LSA-C.C. Art. 2324, in its current form, provides in pertinent part as follows:

A. He who conspires with another person to commit an intentional or willful act is answerable, in solido, with that person, for the damage caused by such act.

B. If liability is not solidary pursuant to Paragraph A, or as otherwise provided by law, then liability for damages caused by two or more persons shall be solidary only to the extent necessary for the person suffering injury, death, or loss to recover fifty percent of his recoverable damages; however, when the amount of recovery has been reduced in accordance with the preceding Article, a judgment debtor shall not be liable for more than the degree of his fault to a judgment creditor to whom a greater degree of fault has been attributed. Under the provisions of this Article, all parties shall enjoy their respective rights of indemnity and contribution. Except as described in Paragraph A of this Article, or as otherwise provided by law, and hereinabove, the liability for damages caused by two or more persons shall be a joint, divisible obligation, and a joint tortfeasor shall not be solidarily liable with any other person for damages attributable to the fault of such other person, including the person suffering injury, death, or loss, regardless of such other person's insolvency, ability to pay, degree of fault, or immunity by statute or otherwise.

[5] I note here my agreement with the quoted statements from Touchard that a judgment creditor is not precluded from 100% recovery from tortfeasors who commit "an intentional or wilful act" under paragraph A of LSA-C.C. art. 2324. Although couched in terms of solidary liability of a person who conspires with another to commit an intentional act, the underlying essence and policy of the code article is that a person who commits an intentional act is liable for the full extent of damage caused by the act. Thus, the rapist in this case, if named as a defendant, would be solidarily liable for 100% of plaintiff's damages, although the landlord's solidary liability would be limited to 50%, assuming less than 50% fault on the part of the landlord. See, in addition to Touchard, Johnston v. Fontana, 610 So.2d 1119 (La.App. 2d Cir.1992), writ denied 618 So.2d 407 (La.1993), and Thomas C. Galligan, Jr., Article 2324. The Discombobulating State of Solidarity In Post Tort Reform Louisiana, 54 La.L.Rev. 551, 560-562 (1994).

[6] I realize that there will be limited instances in which the application of comparative fault principles to an intentional tort case will be unwarranted, particularly when comparing plaintiff fault with defendant fault, and note merely as an example conversion cases involving defendants engaging in self-help measures. Broussard v. Lovelace, 610 So.2d 159 (La.App. 3d Cir.1992), writ denied, 615 So.2d 343 (La.1993) (declining to apply comparative fault to conversion case); Hebert v. First Guaranty Bank, 493 So.2d 150 (La.App. 1st Cir.1986) (same). Nonetheless, I view these cases as limited exceptions which can perhaps be resolved on other grounds such as by finding, under duty-risk analysis, a duty lacking. R. Hallack, Comment, Louisiana's Comparative Fault Doctrine and the Mitigation of Damages in the Intentional Tort of Assault and Battery, 15 So.U.L.Rev. 111 (1988).

__________

[1] The decision Bell v. Jet Wheel Blast, 462 So.2d 166 (La.1985) did not create an exception to the application of comparative fault. Although the date of the accident does not appear in the Bell opinion, the accident in Bell occurred before the effective date of comparative fault, and the plaintiff would have recovered under pre-comparative fault law anyway. Therefore, any pronouncements on comparative fault in Bell were dicta. Moreover, any decision to apply exceptions will more likely come by a refusal to compare victim negligence in a particularly harsh situation (as in Bell), rather than in a comparison of multiple tortfeasor fault (as in the present case).

[2] Prior to the 1987 amendment to La.Civ.Code art. 2324, the fault of each tortfeasor could have been allocated (for contribution purposes), and the blameless tort victim could have collected one hundred percent from either. Under present law, recovery against a solidary obligor who is less than fifty percent at fault is reduced to fifty percent of the tort victim's damages. Touchard v. Williams, 617 So.2d 885 (La.1993).

[3] Comparison of fault between tortfeasors can be difficult in many circumstances, as when the fault of one occurred at a time remote from another's more proximate fault that immediately precipitated the damages. Recognizing that the fault of both tortfeasors (the proximate and the remote) should be considered by the factfinder caused Louisiana to replace proximate cause analysis with duty-risk analysis. Dixie Drive It Yourself System v. American Beverage Co., 242 La. 471, 137 So.2d 298 (1962), Pierre v. Allstate Ins. Co., 257 La. 471, 242 So.2d 821 (1970). Similarly in the present case, the fault of two tortfeasors combined to produce the victim's single injury. Indeed, the apartment manager's fault was more remote and less causative in effect, but must be recognized in order to complete the fault picture. Once this concept of dual causative fault is acknowledged, the legislative pronouncement on solidarity takes over and requires reduction of the victim's recovery.

[4] One cannot overemphasize the fact that this case involves a comparison of fault between tortfeasors and not a comparison of a tortfeasor's fault with a tort victim's contributory negligence. There arguably may be much more justification for making an exception to application of comparative fault by disregarding the victim's contributory negligence under extreme circumstances than by disregarding the fault of one of several tortfeasors.

__________

[1] Eight years before, in 1979, LSA-C.C. Arts. 2323 and 2324 were amended to provide for "comparative fault" as it has come to be called. From 1979 to 1987, LSA-C.C. Art. 2324 provided that all tortfeasors were solidarily liable, but that the debt which they owed was reducible by the proportion of the plaintiff's comparative negligence under LSA-C.C. Art. 2323. In 1984, LSA-C.C. Art. 1804 was amended to its current form, see Text infra, and Comment (b) notes that the designation that each tortfeasor's virile share be according to the "proportion of his fault" was intended to make the solidarity articles "consistent with the idea of comparative negligence." In other words, it was the amendment to LSA-C.C. Art. 1804 which created the need for the trier-of-fact to assess a proportion of blame to various defendants, and that change was implemented to create a similar scheme to the comparison of fault between plaintiff and defendant mandated by LSA-C.C. Art. 2323. Thus, the practice of assessing proportionate blame to defendants was influenced, but not caused, by the Legislature's adoption of comparative fault. This is significant, because what had formerly been an inter-defendant matter directly affected the recovery of a plaintiff after the 1987 amendment to LSA-C.C. Art. 2324, discussed infra.

[2] One of these cases, which treats divisions within the general aegis of "fault," will be discussed infra.

[3] The first paragraph of LSA-C.C. Art. 1804 contains, as noted supra, the phrase "Among solidary obligors," limiting the effect of that paragraph in the delictual context to solidarily liable tortfeasors. Contrast the second and third paragraphs of LSA-C.C. Art. 1804, which do not contain this limitation. Furthermore, I note that the deletion of the phrase "with regard to him" found in old C.C. Art. 2106 from the revised article LSA-C.C. Art. 1804 allows the third paragraph of this article to be read as effective against third parties, and not just among the various sureties of the principal obligor. Even were this not the case however, the allocation of fault among delictual obligors under LSA-C.C. Art. 1804, including its third paragraph, is tacitly reflected in the system of tort recovery established by LSA-C.C. Art. 2324, given the latter article's contemplated requirement of delictual fault being quantified and allocated among solidarily liable defendants in accordance with the "comparative fault" system. See Note 1, supra.

[4] The important thing therefore is to draw up the table of legal obligations protected by article 1382 [the French equivalent to LSA-C.C. Art. 2315], but that task is quite delicate; it does not suffice to say that it is forbidden "to harm another;" it is necessary also to indicate the forms under which such obligation is encountered. We can recognize a quadruple object:--

(1) To abstain from any violence towards things or persons;

(2) To abstain from any fraud, that is to say from any act which deceives another;

(3) To abstain from acts which require a certain force or a certain ability, which one does not possess in the required degree;

(4) To exercise a sufficient surveillance over dangerous things which one possesses or over the persons of whom one has the guardianship (children, insane persons, etc.).

The first two obligations are absolute: violence and fraud are reprobated in themselves, and those who employ them are necessarily at fault and responsible. These are the ones which correspond to the class of delits properly so-called or intentional damage "dolo." In the last two categories, the person responsible has not acted with "dolo," but only with "culpa; " his conduct is entitled to a certain evaluation because the fault committed is susceptible of degrees.

Planiol, supra, § 865.

[5] This argument is even more salient if Appalachian Corp. v. Brooklyn Cooperage Co., 151 La. 41, 91 So. 539 (1922), which was cited by Dusenbery as precedent for tort indemnity, is examined. Although Dusenbery suggests that the basis of the tort indemnitee's liability in Appalachian Corp. was some form of strict liability, the case reveals that both tortfeasors were found liable under a negligence theory (due perhaps to the state of the law regarding strict liability in 1922). If tort indemnity can apply in a comparison of the actions of two dissimilarly negligent tortfeasors, it seems a fortiori that the same general approach should apply to the allocation of fault between an intentional and a negligent tortfeasor.

[6] If under an application of "comparative fault" a plaintiff is found to be at fault, the resulting diminution in the obligation owed by the intentional tortfeasor is of course effective for the negligent tortfeasor as well. This is because under the fundamental principles of both solidarity and suretyship, each owes the same obligation. Thus, were a plaintiff found to be 10% at fault in relation to an intentional tortfeasor, that plaintiff could recover 90% of his or her recoverable damages from a negligent defendant.

[7] This system actually provides for enhanced recoveries by plaintiffs (since the only application of comparative fault would be between intentional tortfeasors and negligent plaintiffs, and the policy reasons noted by the Court in its majority opinion limiting the application of comparative fault would certainly apply in this context). However, it also reserves to negligent tortfeasors greater rights of "contribution" against the intentional tortfeasor since recovery is not to be based upon a "virile portion" related to an allocated proportion of fault, but rather to the subrogation and/or reimbursement principles of the suretyship articles. In other words, a negligent tortfeasor can recover 100% of what he paid to the plaintiff from an intentional tortfeasor, at least as a matter of legal principle.

[8] In cases where there is more than one intentional tortfeasor, LSA-C.C. Art. 2324(A) and its rule of 100% solidarity for intentional tortfeasors is applicable, with all negligent tortfeasors being sureties to that obligation.

726 A.2d 172

WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY, Appellant,
v.
Eleanor T. JOHNSON, et al., Appellees.

No. 96-SP-1784.

District of Columbia Court of Appeals.

Argued April 21, 1998.

Decided March 3, 1999. 

[726 A.2d 173] Bruce P. Heppen, with whom Robert L. Polk, Robert J. Kniaz, and Fredric H. Schuster, Washington, DC, were on the brief, for appellant.

Frank M. McClellan, with whom Allen T. Eaton and LaVern D. Wiley, Washington, DC, were on the brief, for appellees.

Jo Anne Robinson, Principal Deputy Corporation Counsel, with whom Charles L. Reischel, Deputy Corporation Counsel, and James C. McKay, Jr., Assistant Corporation Counsel, filed a brief for the District of Columbia as amicus curiae.

Before WAGNER, Chief Judge, and TERRY, STEADMAN, SCHWELB, FARRELL, RUIZ and REID, Associate Judges, and KING,^[1] Senior Judge.

ON REHEARING EN BANC

FARRELL, Associate Judge:

Pursuant to D.C.Code § 11-723 (1995), the United States Court of Appeals for the District of Columbia Circuit has certified the following question to this court:

Under District of Columbia law, and upon the facts described below, may a plaintiff who has voluntarily assumed an unreasonable risk of incurring a particular injury recover from a defendant who failed to [726 A.2d 174] take the last clear chance to prevent that injury?

Johnson v. Washington Metro. Area Transit Auth., 321 U.S.App.D.C. 260, 261, 98 F.3d 1423, 1424 (1996) (Johnson II). The "facts described" by the Circuit Court pose that question in the specific context of a voluntary act of suicide. The court states:

On March 20, 1986 Devora Johnson jumped from the subway station platform into the path of an oncoming WMATA train. The parties do not contest that Ms. Johnson jumped of her own volition and with the intention of committing suicide.

Id. at 261-62, 98 F.3d at 1424-25. The certified question therefore does not ask us to consider application of the doctrine of last clear chance to a negligent or even reckless plaintiff — one, for example, who sought to outrace an oncoming train in attempting to cross over the tracks. On the certified facts, Ms. Johnson intended the harm that resulted, her death. Nor are we asked to decide the question in the context of a claim of diminished capacity, where mental illness or other impairment is asserted to have limited the suicide victim's ability to appreciate her peril or encounter it purposely.^[2] The certified question concerns a plaintiff who, in the Circuit Court's words, "voluntarily ... invited the particular harm that occurred." Id. at 263, 98 F.3d at 1426. We hold as a matter of law that the doctrine of last clear chance may not be invoked in that situation.^[3]

I.

"The last clear chance doctrine enables a plaintiff to recover despite [her] contributory negligence." District of Columbia v. Huysman, 650 A.2d 1323, 1326 (D.C.1994)(emphasis added). Under the doctrine, a plaintiff ... is permitted to recover, despite her own contributory negligence, if there is evidence (1) that the plaintiff was in a position of danger caused by the negligence of both plaintiff and defendant; (2) that the plaintiff was oblivious to the danger, or unable to extricate herself from the position of danger; (3) that the defendant was aware, or by the exercise of reasonable care should have been aware, of the plaintiff's danger and of her oblivi[ousness] to it or her inability to extricate herself from it; and (4) that the defendant, with means available to him, could have avoided injuring the plaintiff after becoming aware of the danger and the plaintiff's inability to extricate herself from it, but failed to do so.

Felton v. Wagner, 512 A.2d 291, 296 (D.C. 1986) (citing cases) (emphases added). To state the doctrine is thus to recognize, at the outset, that applying it to a plaintiff who was not merely negligent or even reckless, but who instead intended the very harm that befell her, would take it well beyond its normal application. Stated differently, the doctrine presupposes a plaintiff who, unlike Ms. Johnson, was oblivious to her peril or at least would have wanted to extricate herself from it if able to do so. See Johnson II, supra, 321 U.S.App.D.C. at 263, 98 F.3d at 1426.^[4] Although the certified question is one [726 A.2d 175] of first impression for this court, the answer follows logically from tort principles which this court and others have consistently employed. In applying these principles, we do not "punish" Ms. Johnson (or her estate) for her action, as Judge Ruiz's dissent charges; rather we acknowledge and enforce the disincentives to voluntary self-destruction on which society, through the civil law, insists.

WMATA as defendant contends that the doctrine of assumption of risk bars plaintiff's recovery, citing inter alia J.D. LEE & BARRY A. LINDAHL, MODERN TORT LAW § 11.04, at 324 (Rev. Ed.1997) ("The doctrine of last clear chance has no application to assumption of risk but applies solely to overcome the defense of contributory negligence."). The certified question also is framed in terms of assumption of risk. The Circuit Court was unsure how this court would analyze the relationship between assumption of risk and last clear chance because some of our decisions have "equated the voluntary assumption of an unreasonable risk with contributory negligence at least in some circumstances." Johnson II, supra, 321 U.S.App.D.C. at 263, 98 F.3d at 1426. See, e.g., Janifer v. Jandebeur, 551 A.2d 1351, 1352 (D.C.1989); Scoggins v. Jude, 419 A.2d 999, 1004 (D.C.1980). But, as we have already seen, this case does not concern contributory negligence. (The trial court instructed the jury that Ms. Johnson was contributorily negligent as a matter of law.). And even assumption of risk provides a loose fit considering that Ms. Johnson went beyond passive awareness and acceptance of a risk: she intended the very harm that befell her. Yet assumption of risk does furnish us guidance because it deals with the plaintiff's intentional, not merely negligent, exposure to a known danger, see LEE & LINDAHL, MODERN TORT LAW, supra, § 10.04, at 271, and it explains the legal consequence: "Because [s]he elects to proceed in the face of a known danger, the plaintiff is regarded as having consciously relieved the defendant of any duty which he otherwise owed the plaintiff." Sinai v. Polinger Co., 498 A.2d 520, 524 (D.C.1985). For this reason, we have recognized that the doctrine may bar recovery even when contributory negligence does not.

In Martin v. George Hyman Constr. Co., 395 A.2d 63 (D.C.1978), for example, we held that the contributory negligence of a wage earner did not bar recovery for an accident stemming from an employer's breach of a statutory duty to provide reasonably safe working conditions. Id. at 71. The statute embodied a legislative judgment to "impose[] upon employers ... the sole responsibility for avoiding those accidents." Id. at 70. At the same time, we held that assumption of risk would bar recovery where the employer proved that the wage earner voluntarily spurned a safe alternative to encountering the risk and did so "with willful, wanton, or reckless disregard for his own safety." Id. at 74. In that event "the defense operates to relieve [the defendant of] `all legal duty ... to the plaintiff.'" Id. at 71 (citation omitted). See also East Penn Mfg. Co. v. Pineda, 578 A.2d 1113, 1118-19 (D.C.1990)("Contributory negligence is not a defense to a strict liability claim, but assumption of the risk bars recovery under either [negligence or strict liability].")

Applying these principles, Ms. Johnson did not merely act in reckless disregard of her safety, she purposely invited the harm that resulted. She thereby relieved WMATA of any duty it otherwise owed her, including a duty to grasp the final opportunity — the last clear chance — to avert a harm brought about by her own intentional act.

Plaintiff argues that this analysis wrongly emphasizes the conduct of Ms. Johnson to the exclusion of the behavior of the train operator, whom the jury found to have been reckless both in his primary negligence and in failing to take the last clear chance.^[5] However, there is widespread authority for [726 A.2d 176] the principle that when the plaintiff and the defendant are equally at fault, "the law leaves both parties where it finds them." Griffin v. Shively, 227 Va. 317, 315 S.E.2d 210, 213 (1984). Thus, the RESTATEMENT (SECOND) OF TORTS § 503(3) (1965) provides:

A plaintiff whose conduct is in reckless disregard of [her] own safety is barred from recovery against a defendant whose reckless disregard of the plaintiff's safety is a legal cause of the plaintiff's harm.

Comment c explains:

In general, the effect of the plaintiff's reckless disregard of [her] own safety is the same as that of [her] ordinary contributory negligence. The exception to this rule, stated in Subsection (3), is that where the plaintiff's conduct is itself in reckless disregard of [her] own safety, it bars [her] recovery not only from a defendant who has merely been negligent, but also from one who has acted in reckless disregard of the plaintiff's safety. The greater fault in the one case is balanced against the greater fault in the other.

The RESTATEMENT does not expressly discuss the effect of recklessness by a plaintiff upon the availability of last clear chance, although some case law does. E.g., Conn v. Young, 267 F.2d 725, 728 (2d Cir.1959) (noting "considerable authority" that despite availability otherwise of last clear chance doctrine, "contributory recklessness having a causal relation to an accident is an effective bar to an action based on recklessness"); Handley v. Halladay, 92 N.M. 76, 582 P.2d 1289, 1290 (1978) (citing cases) ("A plaintiff who is so reckless as to be in disregard of [her] own safety cannot be protected by the doctrine [of last clear chance]."). But this case does not even require us to decide the issue of reckless conduct by a plaintiff balanced against reckless conduct of a defendant. Plaintiff has cited no authority, and we have found none, that would apply last clear chance to a plaintiff's conduct deliberately intended to bring about the harm another inflicts, either negligently or recklessly. Volenti non fit injuria ("to the willing no injury is done").

II.

Plaintiff argues that failure to focus ultimately on the train operator's conduct rather than on Ms. Johnson's suicidal intent would relieve WMATA of accountability for violating its public trust as a common carrier. That is not so. "WMATA, like any common carrier, owes a duty of reasonable care to its passengers." McKethean v. Washington Metro. Area Transit Auth., 588 A.2d 708, 712 (D.C.1991). Absolving it of a duty to a person — legally a trespasser — who jumps into the path of an oncoming train to commit suicide leaves that obligation fully intact. Further, conceding as we do that one aim of tort law is to deter negligent (and certainly reckless) behavior by actors such as WMATA's train operator, any deterrence achieved by extending tort protection to a victim who deliberately invites the harm incurred would be negligible. In the brief interval available to a train operator under the last clear chance doctrine, there is no time to determine the circumstances which placed the victim at risk, including her degree of fault (i.e., whether faultless, negligent, reckless, or intending the injury); the nearly conclusive assumption guiding the driver's conduct will be his accountability to the victim at least for recklessness. See note 4, supra. And, too, the intoxicated train operator faces criminal sanctions, see D.C.Code § 25-127 (1996), including a possible manslaughter prosecution in case of the victim's death.^[6] In sum, there is no reason to believe that a vehicle operator will react less resolutely in the case of a victim intending harm to herself because of the possibility that last clear chance will not apply.

We also cannot ignore the perverse incentive that a contrary holding might provide. [726 A.2d 177] At an earlier stage of this litigation District Court Judge Oberdorfer wrote:

There is a very respectable public policy and common sense argument that an assumption of risk defense, which precludes consideration of who had the last clear chance, would discourage suicides and that allowing a potential suicide to contemplate the possibility of compensation for heirs and next-of-kin would have an opposite and unfortunate consequence.

Johnson v. Washington Metro. Area Transit Auth., 901 F.Supp. 1, 3 (D.D.C.1995); see also Johnson II, 321 U.S.App.D.C. at 263, 98 F.3d at 1426 ("Allowing an individual to recover for injuries she has actively invited would provide an incentive — in the form of expected compensation for her heirs if not for herself — for a suicidal or financially desperate person to act upon her self-destructive impulses."). It is no answer to say that no studies have shown this to be a factor in suicide attempts; the difficulty of proving the proposition factually — for reasons in part obvious — does not detract from its common sense. Moreover, even if this incentive were wholly speculative, we remain convinced that a tort system designed to compensate for injuries caused by the fault of others is incompatible with awarding damages for deliberately invited harm.^[7]

Against these considerations plaintiff cites the ameliorative and humanitarian aims of the last clear chance doctrine, first in serving to ease the harshness of the contributory negligence defense, see W. PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS § 66, at 464 (5th ed.1984), but also in maximizing the incentives for persons able to do so to preserve the life of a helpless victim. Cf. In re A.C., 573 A.2d 1235, 1246 (D.C.1990) (en banc) (state has parens patriae interest in "preserving life [and] preventing suicide"). But the perceived harshness of contributory negligence and the need to ameliorate it through the last clear chance doctrine are considerations very distant from this case of a deliberately invited death. Moreover, our discussion of deterrence above explains why we are not persuaded that the values of preserving life and deterring suicide, important though they are, would be fostered by applying last clear chance to voluntary acts of suicide; quite the contrary. Retrospective application of the doctrine to WMATA's train operator could not, of course, save Ms. Johnson's life, nor would it, for the reason stated earlier, have any appreciable effect on the behavior of WMATA drivers generally, beyond the incentives already in place.^[8] Last clear chance in these circumstances reduces to a gesture of compassion by the courts at the expense of someone else.

III.

Suicide is a terrible act because it extinguishes a human life and because of the suffering it leaves behind. Despite these tragic consequences, or perhaps because of them, the civil law does not relax the accountability of the actor-victim: "The act of suicide generally is considered to be a deliberate, intentional, and intervening act which precludes a finding that a given defendant is, in fact, responsible for the decedent's death." District of Columbia v. Peters, 527 A.2d 1269, 1275 (D.C.1987).^[9] Whether science one day will cast enough doubt on the volitional nature of suicide to call in question this principle is something on which we decline to speculate. We adhere to the rule of Peters,[726 A.2d 178] and hold that last clear chance may not be employed to restore liability in another for a plaintiff's suicidal act.

The clerk shall certify this answer to the United States Court of Appeals for the District of Columbia Circuit.

So ordered.

WAGNER, Chief Judge, dissenting:

For the reasons stated in Parts I and III of Judge Ruiz' dissenting opinion, I agree that the last clear chance doctrine should apply to allow a plaintiff's estate and heirs to recover against a defendant who wilfully or wantonly failed to take action to prevent the decedent's death even though the decedent intentionally placed herself in a position of peril from which she could not extricate herself.

RUIZ, Associate Judge, with whom WAGNER, Chief Judge, and REID, Associate Judge, join in Parts I and III, dissenting:

I adhere to the views expressed in the division opinion that would have applied the last clear chance doctrine to this case and permitted recovery by the suicide's family and estate against a reckless train operator who could have avoided causing Ms. Johnson's death. See Washington Metro. Area Transit Auth. v. Johnson, 699 A.2d 404 (D.C. 1997),vacated, 704 A.2d 306 (D.C.1998). That Ms. Johnson initiated the events that resulted in her death is not in dispute, but it is equally clear that, but for the train operator's recklessness, her purpose would have been foiled. The operator's failure to act as required by law was the immediate cause of this suicide's death and his actions should be correspondingly assessed with liability for the death he occasioned.^[10] That result conforms with the admonitory and compensatory objectives of tort law.

I respectfully dissent from the majority for two principal reasons. First, the majority's analysis, which focuses exclusively on the suicide's conduct, undermines the policies which result in imposition of liability in those situations where the defendant has the last clear chance to avoid injury by exercising reasonable care. Second, the premise for the majority's analysis, that Ms. Johnson, a suicide, acted with the requisite voluntariness and knowledge, is inconsistent with society's condemnation of suicide and is not supported by the record sent to us by the Court of Appeals, which shows that Ms. Johnson had a history of serious mental illness requiring numerous hospitalizations.

I.

Under the majority's analysis, the egregiousness of the defendant's conduct, its importance in the chain of causation and the foreseeability of death if the defendant did not exercise reasonable care are made irrelevant. By focussing exclusively on Ms. Johnson's conduct, and releasing WMATA and the train operator for any liability connected to her "invited" death, the majority overlooks the significance of the fact that the reckless act of the train operator in this case — the failure, due to his intoxicated condition, to stop the train when he became aware of Ms. Johnson's peril — occurred subsequent to Ms. Johnson's act of jumping onto the train tracks, and was the immediate cause of her death.

In the majority's view, once the voluntariness and intentionality of the plaintiff's action is established, plaintiff's consent to death relieves defendant of liability for all subsequent tortious conduct or, as in this case, even reckless behavior which causes injury or death. The majority's conclusion not only exceeds the traditional scope of the risk deemed to be assumed under assumption of risk doctrine, but also goes against the public policy exception for express agreements to assume risk. Under traditional primary assumption of risk analysis, while a plaintiff's voluntary action in encountering a known risk may relieve the defendant of certain obvious risks which the plaintiff can be said [726 A.2d 179] to have assumed, a defendant is not excused from liability for failure to act with due care in dealing with those obvious risks nor for subsequent acts of negligent or reckless conduct.See Fleming James Jr., Assumption of Risk, 61 YALE L.J. 141, 161 (1952) (citing cases). Moreover, there are certain risks so inimical to the public interest that society does not honor private agreements to assume them. See RESTATEMENT (SECOND) OF TORTS § 496B cmt. g ("Where the defendant is a common carrier ... or is otherwise charged with a duty of public service, and [there is an] agreement to assume some risk relat[ing] to the defendant's performance of any part of that duty, it is well settled that it will not be given effect.").

Beyond these limitations on the assumption of risk doctrine, traditional tort analysis also leads to the conclusion that if the defendant's negligence supersedes the plaintiff's own intentional conduct and is the proximate cause of plaintiff's injury, the defendant is liable. See Rinaldo v. N.Y. City Transit Auth., 39 N.Y.2d 285, 383 N.Y.S.2d 571, 573, 347 N.E.2d 897, 898 (1976) (applying doctrine of last clear chance to suicide attempt); Wyckoff v. Davis, 297 S.W.2d 490, 494 (Mo. 1957) (in case applying humanitarian doctrine — equivalent to last clear chance doctrine — "it is of no consequence what brings about or continues the peril, even though it be sheer hardihood or recklessness. This covers the whole range of self-exposure to peril from mere negligent inattention to utter, audacious and continuing disregard of known and avoidable danger.") (quoting State v. Bland, 354 Mo. 868, 191 S.W.2d 660, 662 (1945) (suggesting that humanitarian doctrine extends to suicides)); Brooks v. New Albany & L. Elec. R. Corp., 280 Ky. 157, 132 S.W.2d 777, 780 (1939) ("The test is, without regard as to how she came in peril, Did the defendant's motorman in charge of the street car see, or could he by due care, have seen her peril and negligently fail to avoid injuring her? If so, the defendant is liable.") (quoting Mullins v. Cincinnati N. & C. Ry. Co., 253 Ky. 156, 68 S.W.2d 790, 792 (1934)). In the few remaining jurisdictions, such as ours, where a plaintiff's contributory negligence precludes recovery against a defendant whose negligence also contributes to the injury, the last clear chance doctrine operates to restore some equity by recognizing the defendant's greater fault as the direct cause of injury, tempering the harshness of contributory negligence. See Washington Metro. Area Transit Auth. v. Johnson, supra, 699 A.2d at 407-08.

The majority excepts suicide from application of the last clear chance doctrine reasoning that by her intentional suicidal act, Ms. Johnson "invited" the particular injury that killed her, citing the "ancient maxim, `Volenti non fit injuria,' which signifies that no wrong is done to one who consents." RESTATEMENT (SECOND) OF TORTS § 496A cmt. b. The theory of primary assumption of the risk, equated to volenti non fit injuria,^[11] on which the majority relies, reflects the individualism of the common law in relationships wherein it was felt that the duty of self-protection against many hazards rested primarily on each participant.

It is a negation of duty by one to look out affirmatively for the other's safety. It is clear then that the concept of assumption of risk in the primary sense is not to be considered in a situation where defendant has breached a duty towards plaintiff — where the latter has "a statutory right to protection, or a common law right or . . . individual right at law to find these particular premises ... free from danger...." This means specifically that even when a danger is fully known or comprehended plaintiff is not barred from recovery simply because he chooses deliberately to encounter it....

James, supra, 61 YALE L.J. at 144 (noting that when there is such a right, the plaintiff may be contributorily negligent if the choice is negligent, but is not deemed to have voluntarily released the defendant of duty to the plaintiff) (internal footnote omitted). [726 A.2d 180] Here, the train operator was under a statutory duty not to operate the train in an intoxicated condition. See D.C.Code § 25-127 (1996). In such a situation, assumption of the risk may not relieve a defendant of liability because "[s]tatutes and regulations should not be overborne by the common law." Martin v. George Hyman Constr. Co., 395 A.2d 63, 69 (D.C.1978); see RESTATEMENT (SECOND) OF TORTS §§ 483, 496F; William L. Prosser, HANDBOOK OF THE LAW OF TORTS 425-26, 453-54 (4th ed.1971). The majority relies, however, on the proposition that "willful, wanton or reckless disregard for [her] own safety" bars a plaintiff's recovery against even a defendant who has breached a statutory duty, citing Martin, supra, 395 A.2d at 74. Martin, however, does not consider the last clear chance doctrine. That is because in Martin there was no negligence or recklessness on the part of the defendant superseding the plaintiff's assumption of risk. Those facts easily distinguish the case before us.

II.

The majority opinion is flawed in two respects when viewed within the particular context of a suicide.^[12] First, it rests on the questionable assumption — without explanation as to whether it would make a difference to its underlying analysis of voluntariness — that Ms. Johnson's suicide was a knowing intentional act. That assumption is doubtful on this record, which shows that Ms. Johnson had a history of serious mental illness requiring numerous hospitalizations. If failure to preserve the record in this regard is the only reason why the majority does not deal with the potential impact of diminished capacity on the voluntariness of the plaintiff's action, the majority's answer to the certified question is likely to provide limited legal guidance, as it is easy to envision that future litigants will have learned the lesson of how to conduct future trials so as to raise doubts about the suicide's mental state.^[13]

Implicit in the majority's assumption that Ms. Johnson was of sufficiently sound mind when she jumped onto the tracks is the thought that at least some degree of mental incapacity or illness might reduce the "voluntariness" of the act of suicide so as to continue to hold the train conductor to society's expectations of reasonable conduct. Although I welcome a suggestion that promises to temper the majority's analysis, I believe that for purposes of imposing tort liability on a person who could have prevented death by exercise of the common law duty of due care, we should be able to raise an evidentiary presumption, as a matter of law, against the voluntariness and soundness of a suicidal action. See Rinaldo, supra, 383 N.Y.S.2d at 572, 347 N.E.2d at 898 (noting in a case where the plaintiff was struck by a subway train that "the presumption against suicide where death results from violence is well established in" New York). Our society's condemnation of suicide carries with it the evident thought that it is an unreasonable and hurtful act, taken in desperation. To the extent that certain exceptions are permitted, for example, to relieve from liability a physician who withholds or withdraws life sustaining procedures or assists in suicide, they are created pursuant to legislative determination that under certain circumstances suicide is considered within the sphere of personal and private decisions that should be allowed, and are strictly limited to those situations where [726 A.2d 181] the patient is fully competent, professionally advised and facing a situation that is objectively recognized as hopeless, and where the patient's wish to "invite" death is unequivocally stated. See Uniform Determination of Death Act, D.C.Code § 6-2421 et seq. (1995); Oregon Death With Dignity Act, OR.REV. STAT. §§ 127.800-.897 (1995).^[14] To assume, as the majority does, that the mentally ill mother of young children who jumps onto the tracks in front of an oncoming train is acting in such a clearheaded and voluntary manner, and that the law should thereby relieve the train operator of all responsibility for reckless conduct that assists the suicide in her purpose, goes against societal norms.

Second, the majority's denial of recovery revives an outdated, punitive attitude toward suicide. There is no question that if instead of having jumped, Ms. Johnson had slipped or been pushed onto the train tracks, the majority would hold WMATA liable for simple negligence. It is solely her suicidal intent that relieves WMATA of liability for its operator's reckless conduct in this case. This smacks of punishment for "bad conduct" — even though we have reason to believe that the plaintiff's fault for her conduct is likely to be mitigated by illness or pressing circumstances. Further, the majority exacts punishment not on the person who acted in contravention of society's condemnation of suicide — she is now dead — but on her estate and her family, in other words, on her children, husband and parents who survive her. We do not criminalize attempted suicide, however, recognizing that treatment, not punishment, is the indicated response. Meanwhile, the train operator who could have prevented the suicide society abhors, and who in addition acted against societal norms, recklessly and in violation not only of the common law but also of a statute intended to protect the public that does criminalize operating a train while intoxicated, see D.C.Code § 25-127, is dismissed as a culpable party bearing responsibility for the injury. Why should his reprehensible conduct not be assessed with damages for the foreseeable harm it caused?

III.

The majority closes with a quote from District of Columbia v. Peters, 527 A.2d 1269 (D.C.1987), that "suicide generally is considered to be a deliberate, intentional, andintervening act which precludes a finding that a given defendant is, in fact, responsible for the decedent's death," 527 A.2d at 1275 (emphasis added). Our decision in Peters does not support the majority's conclusion that "last clear chance may not be employed to restore liability in another for plaintiff's suicidal act." Ante at 178. What Peters holds is simply that a suicide attempt will normally break the causal chain "between any negligent act committed earlier [by the defendant] and the suicide victim's injury." Johnson v. Washington Metro. Area Transit Auth., 280 U.S.App.D.C. 53, 59, 883 F.2d 125, 131 (1989). The important exception noted in Peters for situations where the defendant's negligence produces the condition that results in suicide, see Peters, supra, 527 A.2d at 1276, recognizes that, in certain cases, the defendant's negligence can be the proximate cause of the suicide and, therefore, actionable in tort. In this case there is no antecedent liability of the train operator that is sought to be "restored" by the doctrine of last clear chance. The act of suicide in this case, unlike the suicide in Peters, was not an intervening act between the defendant's negligence [726 A.2d 182] and the suicide's death, but an act that preceded the train operator's recklessness. Here it was the train conductor's reckless conduct in failing to stop the train once he became aware of Ms. Johnson's peril due to his intoxicated state, which superseded the suicidal act and was the immediate cause of death. Thus, the policy of the last clear chance doctrine should guide us in this case: that a person with a duty to act should do so to prevent injury, notwithstanding that the plaintiff created the situation resulting in the risk of injury. Considering the case of a suicidal act, where the risk created is the maximum risk of death, and obvious to the defendant, the last clear chance doctrine should apply with particular force. The majority's exoneration of the defendant in such a case can only undermine society's expectations of what is reasonable conduct in light of our condemnation of suicide. Cf. Rinaldo, supra, 383 N.Y.S.2d at 573, 347 N.E.2d at 898 (applying last clear chance doctrine to attempted suicide situation); Bland, supra, 191 S.W.2d at 662 (suggesting that humanitarian doctrine extends to suicides).

At oral argument counsel for WMATA was asked to distinguish a situation where the suicide, rather than jumping onto train tracks, chooses the less public and dramatic means of taking an overdose of pills in the privacy of her home. Alerted by a family member who happens onto the scene, paramedics arrive and the person is taken to the emergency room of a nearby hospital. There, the treatment team fails to provide the indicated treatment because they are intoxicated. The patient dies. Counsel for WMATA was unable to distinguish that hypothetical from this case; neither can I. Nothing in the majority's reasoning would hold the medical personnel and hospital accountable, for in the hypothetical case the suicide similarly "invited" death and indeed achieved it by her chosen means. But cf. D.C.Code § 6-2427(a) (relieving medical personnel from criminal and civil liability for assisting in suicide by withholding or withdrawing life support procedures subject to limited conditions). Only application of the last clear chance doctrine, looking at the superseding breach of the duty of due care of the medical team that could have avoided an otherwise certain death, would result in liability. The majority's conclusion to the contrary is beneath our honed principles imposing liability on one who with the superior ability and last opportunity to prevent serious injury, fails to act reasonably under the circumstances.

[1] Judge King was an Associate Judge of the court at the time of argument. His status changed to Senior Judge on November 23, 1998.

[2] Although plaintiff cites evidence in the record of Ms. Johnson's past mental illness, that is no part of the factual predicate upon which we are asked to decide the certified question. The jury was not instructed to consider past hospitalizations of Ms. Johnson as bearing on her responsibility for her suicide; it was instructed that she "intentionally jumped from the train platform on to the tracks" and that "she was aware of and able fully to appreciate the risk that her jump on to the tracks entailed."

[3] This case has had a lengthy history. In Johnson v. Washington Metro. Area Transit Auth., 280 U.S.App.D.C. 53, 883 F.2d 125 (1989) (Johnson I), the Circuit Court reversed a grant of summary judgment entered in favor of WMATA in the District Court. After the first trial resulted in a mistrial, the trial court, at the second trial, instructed the jury to determine whether WMATA had the last clear chance to save Ms. Johnson and, if so, whether the train operator had breached the applicable standard of care when he failed to take the measures available to avoid injuring Ms. Johnson. The jury found WMATA liable. Johnson II, supra, 321 U.S.App.D.C. at 262, 98 F.3d at 1425. WMATA appealed, and the question certified to us arises from that appeal. After a division of this court answered the certified question, see Washington Metro. Area Transit Auth., v. Johnson, 699 A.2d 404 (D.C. 1997), we vacated the division's opinion by order of January 15, 1998, and set the case for rehearing en banc. 704 A.2d 306.

[4] Neither the certified facts nor any evidence cited to us supports an inference that Ms. Johnson, after throwing herself on the tracks, abandoned her resolve to take her life but did so too late.

[5] Because Ms. Johnson was a trespasser on the track, see Holland v. Baltimore & Ohio R.R. Co., 431 A.2d 597, 599 (D.C.1981) (en banc), the jury was instructed to determine whether the train operator had been reckless in failing to take the last clear chance he had to avoid injuring her. It answered that question yes, presumably because of evidence showing that he had tested positive for cocaine and marijuana shortly after the accident.

[6] Plaintiff cites § 25-127 (under pain of fine and imprisonment, "[n]o person shall be intoxicated while ... operating any ... car or train of cars... in the District of Columbia") as expressing a legislative policy not to exempt a train operator from liability to a plaintiff injured as a result of the driver's intoxication (drug or alcohol). We glean no such policy from the statute applicable in every case, i.e., without regard to the plaintiff's own fault, any more than we read the workplace safety statute in Martin v. George Hyman Constr. Co., supra, to eliminate entirely the assumption of risk defense.

[7] Whether this would hold true in a jurisdiction unlike ours in which damages are apportioned based on fault, we have no occasion to consider.

[8] Besides, as the District Court judge noted, focusing only on the helpless situation of the person who threw herself on the tracks ignores "the fact that decedent may have placed others in danger by her reckless act: By forcing the train operator to apply the mushroom brake, the decedent caused a sudden deceleration which might have injured passengers in the train." Johnson v. Washington Metro. Area Transit Auth., 764 F.Supp. 1568, 1582 n. 14 (D.D.C.1991).

[9] The "important exception" to this rule noted by Peters where the defendant's conduct "produces an abnormal condition which results in an uncontrollable impulse to commit suicide," 527 A.2d at 1275, 1276(emphasis added), has no bearing on this case. Nor is it a case of an institution, such as a psychiatric hospital, having a duty of custodial care of the suicide victim. See, e.g., McLaughlin v. Sullivan, 461 A.2d 123, 125 (N.H.1983).

[10] The majority contends that where the plaintiff and defendant are equally at fault, the law "leaves [them] where it finds them." Griffin v. Shively, 227 Va. 317, 315 S.E.2d 210, 213 (1984). Where one person's fault is the more immediate cause of injury, however, that person may be deemed to be at greater fault. RESTATEMENT (SECOND) OF TORTS § 479 cmt. a (1965).

[11] "The distinction [between volenti non fit injuria and assumption of the risk] is, however, one without a difference, of terminology only, and the rules applied are the same in either case." RESTATEMENT (SECOND) OF TORTS § 496A cmt. b.

[12] The majority opinion answers only the question of suicide and "invited" death, reserving the issue of assumption of risk by the reckless plaintiff whose conduct results in death. See ante at 176. The commentators, however, do not distinguish between a voluntary act and assumption of the risk, both of which have the consequence of relieving the defendant of duty to the plaintiff. See RESTATEMENT (SECOND) OF TORTS § 496A cmt. b, supra note 2.

[13] In its opinion certifying the question to us, the Court of Appeals states that the parties did not contest that Ms. Johnson "jumped of her own volition and with the intent to commit suicide." Johnson v. WMATA, 321 U.S.App.D.C. 260, 261-62, 98 F.3d 1423, 1425 (1996). Although evidence of Ms. Johnson's mental illness and related hospitalizations was introduced by an expert on the issue of damages and was presented to the jury before it decided that WMATA was liable for her death, the jury was not asked to find whether Ms. Johnson's suicidal act was a knowing and intentional "wish to die" or whether, as counsel suggests, it was a cry for help. As the certified answer depends on the suicide's awareness and intention, Ms. Johnson's actual mental state acquires added importance.

[14] Under the D.C. law, a physician or other listed medical personnel who withholds or withdraws life-sustaining procedures from a "qualified patient" pursuant to a valid declaration, is not subject to civil and criminal liability or considered to have behaved unprofessionally. See D.C.Code § 6-2427(a). The resulting death is not a suicide and the physician's actions do not constitute the crime of assisting suicide. See D.C.Code § 6-2428(a). A "qualified patient" is a person "who has executed a declaration in accordance [with the statute, requiring two witnesses] and who has been diagnosed and certified in writing to be afflicted with a terminal condition by 2 physicians who have personally examined the patient, one of whom shall be the attending physician." D.C.Code § 6-2421(5).

Under the Oregon law, a person who qualifies in terms of being competent and terminally ill, must make a voluntary written request, witnessed by at least two individuals, one of whom must attest to the patient's capacity and desire to die. The request to die must have been made twice orally. The person always retains the right to rescind the request to die. OR.REV.STAT. §§ 127.810 & .840.