The first of these is the rule followed by most courts that intentional tortious conduct may not be compared with negligence. When, as is often the case, there are allegedly fraudulent misrepresentations by some of the defendants in a tort suit brought by creditors, investors, and guarantors to recover their losses, the issue will arise whether their conduct is subject to comparison with that of the enterprise's auditor who has been-joined as a defendant under the theory of negligence. The second doctrine, which appears to be a minority rule, is that negligent misrepresentation should not be subject to comparative fault treatment. The reasoning justifying both rules has some validity; fortunately, accommodating the underlying rationales need not be fatal to the apportionment principle.
Should Intentional Conduct Be Compared With Negligence?
The weight of authority holds that the acts of intentional tortfeasors should not be compared with those of plaintiffs and joint defendants who are found to be merely negligent.(n233) A few courts have permitted such apportionment in specific circumstances, and commentators have recommended the adoption of such a rule,(n234) but only recently has a state supreme court held that its state's comparative negligence act would permit such comparison as a general proposition.(n235)
Under the no comparison rule, if a negligent auditor's joint tortfeasors have acted fraudulently, apportionment would be forbidden under comparative fault law. The rationale for the rule is clear enough: because contributory negligence at common law was not recognized as a defense to intentional torts,(n236) comparative negligence should not be permitted as a partial defense.(n237) To the argument that even victims should be responsible for consequences flowing from their own folly, the public policy reply is that "no rogue should enjoy his ill-gotten plunder for the simple reason that his victim is by chance a fool."(n238) The policy served by this rule is reasonable, but given the evolution of comparative fault described in the previous section, an unmodified "no comparison" rule would defeat the use of comparative fault as a device for achieving comparative contribution or equitable indemnity.(n239)
The problem is well illustrated by a Kansas case in which a vendor of a house and his broker fraudulently conspired to conceal evidence of termite damage from the vendee.(n240) They suppressed the first termite inspector's report and hired a second inspector who negligently failed to discover the damage. The trial court found all three tortfeasors jointly and severally liable to the vendee for damages. One of the fraudulent defendants argued that damages should be apportioned under comparative fault principles and a portion assigned to the negligent inspector, thus reducing the damages remaining for the intentional tortfeasors.(n241) The Kansas Supreme Court could find no basis for such an apportionment and refused to order the trial court to compare culpability.(n242) The practical result of this holding was not too unreasonable inasmuch as the plaintiff was presumably able and willing to recover his entire loss (plus punitive damages) from the intentional tortfeasors. But what if the vendor and broker were insolvent, would it serve justice for the termite inspection company to absorb the entire judgment? We think not.
The no comparison rule should be modified. Although it is arguable that comparative fault should not provide a defense for an intentional tortfeasor against a negligent plaintiff, it can still