Extending Comparative Fault

20 Pages Posted: 10 Jun 2016  

Aaron Twerski

Brooklyn Law School

Nina Farber

Brooklyn Law School

Date Written: June 8, 2016

Abstract

This article challenges the traditional view of consent as a binary issue. Because “lack of consent” is an element of an intentional tort, courts do not apply comparative fault principles and therefore must find that plaintiff has either consented to the invasion of her person or not. In cases where consent is predicated on apparent consent or implied consent, however, the all–or-nothing approach to consent fails to take into account that both plaintiff and defendant may have been responsible for a miscommunication as to consent. This article focuses on well-known cases and situations where both parties likely contributed to a misunderstanding as to whether the plaintiff consented to the defendant’s conduct and suggests that, in such cases, comparative fault provides a modality for assessing damages. In many cases, the binary approach to consent is justified. When a court finds that both parties contributed to the misunderstanding, however, they should apply comparative fault to reflect that reality.

Keywords: comparative fault, consent, false imprisonment, sports injuries

Suggested Citation

Twerski, Aaron D. and Farber, Nina, Extending Comparative Fault (June 8, 2016). Brooklyn Law Review , Forthcoming; Brooklyn Law School, Legal Studies Paper No. 457. Available at SSRN: https://ssrn.com/abstract=2792334

Aaron D. Twerski (Contact Author)

Brooklyn Law School ( email )

250 Joralemon Street
Brooklyn, NY 11201
United States

Nina Farber

Brooklyn Law School ( email )

250 Joralemon Street
Brooklyn, NY 11201
United States

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