acted without scienter; the basis for allocating responsibility, is always a matter of judgment and moral weighing.(n253) To the argument that such a procedure is speculative, the reply is that the rapid adoption of comparative fault in this country suggests that there exists a national consensus holding that even speculative apportionment is preferable to the all or nothing regime of the common law.(n254) To the argument that the fraudulent rogue should always be assigned all of the victim's damages, the reply is that to do so means holding the negligent actor blameless for the harm he has permitted to occur. As the Blazovic court observed, if culpability allocations stick in the craw under these conditions, the law of punitive damages can be used to reestablish appropriate levels of punishment and deterrence.(n255)
In Fleming v. Threshermen's Mutual Insurance Co.,(n256) the Wisconsin Supreme Court would not permit the comparing of the battery of an intentional tortfeasor with the negligent acts of the plaintiff and another defendant, but the court approved a right to indemnity for the negligent tortfeasor in order to readjust the ultimate awards. The court held:
[A] negligent tortfeasor has a right to indemnity from an intentional joint tortfeasor.... While this approach allows a defendant who is causally negligent to escape from liability in some circumstances, we believe that shifting the full responsibility for the loss to the intentional tortfeasor serves the policy of deterring conduct which society considers to be substantially more egregious than negligence.(n257)
The Fleming court denied a right to contribution, however, observing that, "[w]ere we to allow a negligent tortfeasor only a right to contribution from an intentional joint tortfeasor, the intentional tortteasor effectively would receive the benefit of contribution from the negligent tortfeasor, in direct conflict with the law in this state.(n258)
We agree with the Blazovic court that the better rule is to permit contribution, to be achieved by the application of comparative fault principles that would include comparing the acts of all tortfeasors. Culpable negligent tortfeasors as well as intentional ones should be assessed their share of responsibility for harm done. To shift liability for compensatory damages completely to the intentional tortfeasor will underdeter for negligence. If egregious conduct is to receive special attention, the use of punitive damages would appear to be the appropriate vehicle.
Should Negligent Misrepresentation be Subject to Comparative Fault Rules?
There are authorities that hold that comparative fault is inapplicable to cases involving pecuniary injury alone. The case generally cited for this proposition is Carroll v. Gava(n259) in which a California court held "that the concept [of comparative fault] has no place in the context of ordinary business transactions."(n260) The court reasoned that the application of comparative fault principles was "designed to mitigate the often catastrophic consequences of personal injury," and "would only create unnecessary confusion and complexity in such [pecuniary] transactions."(n261) The plaintiffs had alleged that the defendant vendors had misrepresented to them the zoning status of a piece of property. The trial judge was unable to find the necessary scienter to establish intentional misrepresentation on the part of the defendants, but he refused to compare the parties' relative responsibility in holding the defendants liable for negligent misrepresentation. In affirming, the appellate court found the defendants' statements to be false