Vanderbilt Law Review

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Comparative-fault defenses rarely attract much public attention. However, a recent lawsuit highlighted the subject. In a suit filed against the archdiocese of Boston stemming from an ongoing sexual abuse scandal, Cardinal Bernard Law asserted that a boy who had been abused by a priest from the time that he was six years old to the time that he was thirteen years old was himself guilty of comparative fault. The defense became the subject of immediate public scrutiny. Commentators described the defense with adjectives ranging from "reprehensible," "appalling," and "not sensitive," to "legalese," "boilerplate," "standard," and even "necessary.'"

The Cardinal's defense, and the accompanying public reaction, brings an important legal question to the fore-after states' widespread adoption of comparative fault and comparative apportionment, when should courts consider barring a comparative- fault defense altogether?

This question about appropriate judicial limits on comparative- fault defenses is particularly timely in light of the proposed Restatement Third of Torts: Liability for Physical Harm. The Restatement, which places jury risk-utility analyses at the center of tort decisionmaking in both negligence and comparative negligence, has revitalized debate about the appropriate scope of and limits on jury risk-utility analyses in tort law.

Given the recent shift of states from all-or-nothing contributory-negligence defenses to evaluations of incremental comparative fault and responsibility, it might be argued that courts should never bar comparative-fault defenses. Comparative fault not only weakens traditional justifications for withholding questions of defendant and plaintiff negligence from juries, but was arguably meant to do so.

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