Victim Fault and Victim Strict Responsibility in Anglo-American Tort Law

Abstract

AbstractAnglo-American tort doctrine pays considerable attention to the conduct of the victim as well as the conduct of the injurer. Moreover, a symmetrical standard of care for victims and injurers is commonly invoked: just as injurers are liable for failure to use reasonable care, victims frequently have their compensation reduced insofar as they, too, failed to use reasonable care. The advent of comparative fault, replacing the all-or-nothing rule of contributory negligence, has made the symmetrical approach seem inexorable and unremarkable.But symmetry is usually the wrong perspective for the legal system to take towards victim and injurer conduct. Moreover, a uniformly symmetrical approach ignores the nuances of legal doctrine. Courts often depart from symmetry, even in comparative fault jurisdictions. Thus, courts recognize several categorical doctrines that permitEven when victim conductTo be sure, symmetry is sometimes appropriate, especially when the actor’s unreasonable conduct creates substantial risks both to others and to himself. But in many other cases, symmetry is much less defensible, at least if one endorses a largely nonconsequentialist rather than a purely utilitarian account of tort law. The law could do more to address the unjustifiable use of symmetrical criteria – for example, the fact-finder could be instructed, or the trial judge could be directed, to treat unreasonable risk to others as a more serious type of fault than unreasonable risk to self.