Published in NH Bar News (8/24/2020)
There have been a number of cases filed over the past year that involve human trafficking victims suing hotels claiming those hotels turned a blind eye to the use of their facilities as trafficking way stations. Suing hotels as a means to disrupt the scourge of human trafficking is an interesting approach to an intractable problem. Putting aside the substance of those lawsuits, however, they raise the question considered here: How would New Hampshire courts apply the concept of apportionment of fault as between the traffickers and the hotels? Or, more generally, how should they apportion liability between negligent and intentional tortfeasors?
When contemplating this question, we start with consideration of the justifications for imposing tort liability. Overall, tort law provides a set of rules responsive to contemporary circumstances and designed to protect against harm to person and property. It does this by compensating innocent parties for harm done to them and by shifting the losses to those responsible. By shifting the costs of wrongful conduct from the innocent plaintiff to the culpable defendant, the law makes manifest the cost of wrongful conduct. When others act or refrain from acting in order to avoid a similar financial cost, we are all safer and more secure as a consequence.
So, how does comparing intentional and negligent tortfeasors’ fault comport with the purposes of tort law? Not very well. The Restatement of Torts recognizes the potential problem and likely consequences of such maladministration as follows:
When a person is injured by an intentional tort and another person negligently failed to protect against the risk of an intentional tort, the great culpability of the intentional tortfeasor may lead a factfinder to assign the bulk of responsibility for the harm to the intentional tortfeasor, who often will be insolvent. This would leave the person who negligently failed to protect the plaintiff with little liability and the injured plaintiff with little or no compensation for the harm. Yet when the risk of an intentional tort is the specific risk that required the negligent tortfeasor to protect the injured person, that result significantly diminishes the purpose for requiring a person to take precautions against this risk.
Indeed, the more egregious the harm the intentional defendant inflicts, the stronger the shield from liability that is potentially accorded to the negligent actor. Incongruously, as the potential harm from the intentional defendant increases, financial incentive for negligent actors to protect the plaintiff from such harm decreases.
The opposite is also possible. That same hypothetical jury could direct the majority, or all, of the fault to the negligent actor, concluding that without that negligence the plaintiff might avoided being harmed by the intentional tortfeasor altogether. In that event, the intentional tortfeasor escapes liability. Both scenarios create a mismatch between conduct and financial responsibility, undermining the fundamental requirement for a sensible, effective tort system that makes the community a better, safer place. By contrast, using human trafficking as an example, it would not take too many multi-million dollar verdicts to encourage hotels to spend the resources necessary to avoid the misuse of their facilities by traffickers---making trafficking more difficult and uneconomic for such traffickers and hopefully lessening the enormous cost to the victims and society alike that human trafficking causes.
Some will argue that “fairness” requires comparing fault amongst all defendants, lest one or the other bear a disproportionate share of the fault. This looks at the problem from the perspective of an individual defendant. The tort law, however, looks at the issue from a societal, not individual, perspective. From this broader perspective, the issue is not whether one defendant is attributed fault that could be attributed to another defendant, but how the risk of loss is divided as between plaintiffs and defendants. Viewed in this way, imposing the full weight of the negligent defendant’s separate fault on the negligent defendant is fair because: (1) Each defendant is still only liable to the extent of their own actions or inactions; and, (2) There is nothing that precludes either defendant from seeking financial contribution from the other.
The only “risk” that is shifted by separately considering the fault of negligent and intentional tortfeasors is that the other defendant(s) may be unable in part or in whole to cover the damages for which they would otherwise be held accountable. Thus, the only real difference in refusing to allocate fault between intentional and negligent tortfeasors is that the risk of collection is shifted from the innocent plaintiff to the negligent defendant. Again, from society’s perspective, this produces a sounder result since any defendant found liable had the option to avoid liability at the outset by choosing to act in accordance with the standard of care (or to have secured insurance that would cover its negligent lapses). For these and other reasons, a number of courts throughout the country have rejected the comparison of intentional and negligent tortfeasors. There are others that have adhered strictly to the dictates of statutes that seem to require such an allocation. 
Treating the liability of intentional and negligent tortfeasors as separate and incomparable has an established basis under New Hampshire law. In particular, tracing back the history of comparative fault to its origins in contributory negligence shows that exact treatment. At common law, a plaintiff who shared any fault, no matter how small, for his or her own injuries was disqualified from recovery. In the case of a defendant who had acted intentionally, and a plaintiff who had been merely negligent, however, the courts disqualified the intentional tortfeasor from asserting contributory negligence as a defense. In other words, intentional tortfeasors could not mitigate the damages they caused by having the negligent plaintiff “share” in that fault.
It was simple to justify dividing consideration of intentional and negligent conduct in the context of contributory negligence. For example, consider how the comparison would play out in a sexual assault case where the victim sues her assailant. Would the assailant’s claim that the plaintiff had it coming to her because she was, for instance, dressed provocatively or was otherwise “careless” or “negligent” with regard to her personal safety be tolerated? Likewise, in a suit for battery, libel or conversion, could the defendant blame the plaintiff for his, her or its failure to take the steps necessary to avoid being victimized? The answer in these situations is “no.” Simply put, courts have accepted the obvious which is that but for the defendants’ intentional acts the plaintiffs would have had no occasion to be adjudged careful or careless, making it inappropriate (or worse) to allocate to the plaintiff any part of the “fault” for their harms and losses. Given this clean logic that precludes the comparison of the fault of negligent and intentional tortfeasors in the context of contributory fault, why is it any different when the intentional and negligent tortfeasors “combine” to cause harm to another?
There is no easy answer to the question of how to compare negligent and intentional tortfeasors’ conduct. Viewed from the perspective of the community, however, a strong argument can be made for imposing the separate liability of intentional and negligent tortfeasors separately.
Scott Harris is a director in McLane Middleton’s Litigation Department. He can be reached at (603) 628-1459 or [email protected].
 Restatement (Third) of Torts: Apportionment Liab. § 14 (2000).
 See e.g., Restatement (Third) of Torts: Apportionment Liab. § 14 (2000). The Third Restatement also notes those jurisdictions that have held that comparing the fault of negligent and intentional tortfeasors is the lawful thing to do. Id.
 See fnt. 2, supra.
 See Allgeyer v. Lincoln, 125 N.H. 503, 505 (1984) (“507:7-a [ ] by its terms abrogated the common law defense of contributory negligence . . .”).
 “It is now settled in this state that in an action for an intentional wrong contributory negligence is not a defense.” Bachman v. Insurance Co., 78 N.H. 100, 106 (1916); Wright v. Noyes, 80 N.H. 172 (1921) (holding that contributory negligence is no defense to an action for intentional wrong); Cunningham and Company, 74 N.H. 435, 437 (1908) (“The law makes it the duty of every one to use such care to avoid being injured by another’s negligence, but it imposes on no one the duty to use such care to avoid being injured by another’s intentionally wrongful act. In actions for negligence, contributory negligence is a defense; in actions for intentional injuries, it is not.”); Restatement (Second) of Torts § 545A & cmt. A.