provide a basis for assigning a percentage of culpability to negligent defendants. There is no inherent reason why the trier of fact cannot assign a fault percentage to a negligent actor, even when a defendant who has acted intentionally is also at fault. To argue that intentional conduct and negligence differ in kind and not in degree-- and therefore cannot be compared(n243)--is too glib.
In Blazovic v. Andrich, a unanimous New Jersey Supreme Court rejected "the concept that intentional conduct is 'different in kind' from both negligence and wanton and willful conduct, and consequently cannot be compared with them."(n244) Rather, it viewed "intentional wrongdoing as 'different in degree' from either negligence or wanton and willful conduct."(n245) The court in earlier cases had paved the way for this holding by ruling first, that ordinary negligence and gross negligence, including willful and wanton conduct, differed only in degree and thus could be compared,(n246) and second, that New Jersey's Comparative Negligence Act "'was intended to cover fault in a broader sense rather than in the narrow negligence concept,"(n247) thus permitting the state's courts to compare species of fault such as wrongful conduct covered by rules of strict liability. Given this foundation it was not a great leap for the court to subsume intentional conduct within the Act.
In Blazovic, a lower court dissenting judge had expressed concern that apportionment in such cases might cause plaintiffs to be "disadvantaged if fault were substantially allocated to intentional wrongdoers who were not financially able to satisfy the judgment."(n248) The supreme court observed that for the instant case the plaintiffs were protected by the common law rule of joint and several liability, but a subsequent amendment to the Comparative Negligence Act now abrogates that rule for defendants found less than sixty percent at fault (twenty percent for economic damages).(n249) Despite the possibility that plaintiffs might now receive less than full compensation when some intentional defendants prove to be insolvent the court declined to modify its holding.
The court acknowledged there were still viable New Jersey precedents by which courts could refuse to reduce a negligent tortfeasor's judgment under comparative fault principles. In these cases the negligent party has a heightened duty of care to "prevent the plaintiff's allegedly inappropriate conduct" that leads to injury.(n250) In Blazovic, the court held that the tavern owner's failure to maintain a well lighted and secure parking lot, so that its customer would have been less likely to have provoked the defendant's battery, did not fall under the heightened duty exception. The court adhered "to the general principle that liability be imposed in proportion to fault,"(n251) presumably, even if the intentional tortfeasor's share of the plaintiff's judgment proves uncollectible. Inasmuch as the New Jersey Supreme Court has opined in H. Rosenblum v. Adler that the Comparative Negligence Act would be available in third party suits against auditors,(n252) it is fair to predict that an auditor found twenty percent or less at fault in that state would not be required also to meet the judgments rendered against insolvent, fraudulent co- defendants.
Arguably, public policy may demand that the intentional actor be required to indemnify negligent defendants (if he has the resources to do so), but all tortfeasors should initially share responsibility for the victim's damages in proportion to percentages determined by the trier of fact. It should be no more difficult to assign such percentages than when all defendants have