Kenneth W. Simons, Victim Fault and Victim Strict Responsibility in Anglo-American Tort Law Boston Univ. School of Law, Public Law Research Paper, No. 13-1 (2012).
Anglo-American tort doctrine pays considerable attention to the conduct of the victim as well as the conduct of the injurer. A symmetrical standard of care for victims and injurers is also common: just as injurers are liable for failure to use reasonable care, victims frequently have their compensation reduced insofar as they, too, failed to use reasonable care. The advent of comparative fault, replacing the all-or-nothing rule of contributory negligence, has made the symmetrical approach seem inexorable and unremarkable.
But symmetry is usually the wrong perspective for the legal system to take towards victim and injurer conduct. That perspective also misdescribes legal doctrine. Courts often depart from symmetry, even in comparative fault jurisdictions. Thus, courts recognize several categorical doctrines that permit full recovery without regard to the possible fault of the victim (e.g., where the defendant’s duty is to protect the victim from his own vulnerability or incapacity, or where the defendant is engaged to provide medical care or other services to the victim necessitated by the victim’s own prior fault). Courts also recognize categorical doctrines that automatically preclude any recovery despite the supposed presumptive status of comparative fault (e.g., the illegality doctrine, the mitigation of damages doctrine, and the defense of voluntary assumption of risk).
Moreover, even when victim conduct is compared to injurer conduct, the way in which victim conduct is relevant to tort liability is frequently qualitatively different than the way in which injurer conduct is relevant. Often, when we characterize a victim as being “at fault,” we do not mean that the victim should have acted differently, but only that he should be strictly responsible for his choice or action (e.g. because he justifiably forfeited his right to full damages). Indeed, sometimes, even though a victim has a moral or legal right not to take a precaution, it is appropriate to deny him full damages for the harm that the precaution would have averted.
To be sure, symmetry is sometimes appropriate, especially when the actor’s unreasonable conduct creates substantial risks both to others and to himself. But in many other cases, symmetry is much less defensible, at least if one endorses a nonconsequentialist rather than utilitarian account of tort law. The law could do more to address the unjustifiable use of symmetrical criteria — e.g., the fact-finder could be instructed, or the judge could be advised, to treat risk to others as a more serious type of fault than risk to self.