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(n230) Dean Wade understands fully the difference between causation and culpability, but his moral system requires that compensation for injury be linked to causation. He states, "One cannot in good faith make the argument that [one of two negligent automobile drivers who jointly caused an indivisible harm has] paid for all the harm he caused when the apportionment of his responsibility was based only on the measure of his fault." We think one can make such an argument on the ground that proximate cause is no more than an issue of policy. See PROSSER AND KEETON, supra note 4, at 273. If, for example, a railroad causes a fire in an adjacent structure, but is deemed not to have proximately caused the fires spreading to more remote buildings, clearly the causation concept is a slippery basis upon which to apportion damages. See supra notes 145-46 and accompanying text.

(n231) Erwin E. Adler, Allocation of Responsibility After American Motorcycle Association v. Superior Court, 6 PEPPERDINE L. REV. 1, 18-19 (1978).

(n232) Wade, supra note 158, at 202.

(n233) See authorities listed in Blazovic v. Andrich, 590 A.2d 222, 227 (N.J. 1991) (prohibiting or rejecting the comparing of negligent and intentional conduct).

(n234) Id. at 228. (listing authorities permitting or recommending comparison of negligent and intentional conduct).

(n235) Id. at 231.

(n236) See PROSSER & KEETON, supra note 4, at 462.

(n237) Vietor E. Schwartz, Li v. Yellow Cab Co.: A Survey of California Practice Under Comparative Negligence, 7 PAC. L.J. 747, 752-53 (1976).

(n238) Chamberlin v. Fuller, 9 A. 832, 836 (Vt. 1887). See also Wilder v. DeCorr, 18 Minn. 470 (1871) ("[I]f the representations were willfully false, it does not lie in the vendor's mouth to say that the vendee ought not to have relied upon them.").

(n239) In Blazovic the intermediate appellate court objected to apportionment because it concluded that the fault of the parties was "indivisible." The supreme court disagreed: "The feet that the tortfeasors acted separately and are liable on different theories does not preclude apportionment." 590 A.2d at 232. The court also rejected the idea that, if the negligent party is assessed a percentage of the fault, it should have a right of indemnity against the intentional tortfeasor. The court concluded that apportioning fault in such eases will not under-deter intentional wrongdoers in future eases because it rejected the proposition that intentional and negligent wrongdoing were different in kind rather than degree. Thus, the principle of proportionality of damages takes into account differences in conduct, no matter how those differences are labeled. 590 A.2d at 233.

(n240) Lynn v. Taylor, 642 P.2d 131 (Kan. Ct. App. 1982).


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