The purpose of this Article is to reexamine and appropriately analyze the application of comparative fault to punitive damages. The Article challenges the conventional wisdom that these spheres of law should remain separate. Part II begins with an overview of the development of the law of comparative fault with punitive damages. It discusses the limited attention that has been paid to potential overlap in these areas of law and draws parallels with other developments in the law of comparative fault supporting more accurate and just awards of damages. Part III analyzes the public policy arguments for and against applying comparative fault principles to punitive damage awards. Finally, Part IV proposes practical methods of incorporating comparative fault principles into awards of punitive damages to provide more just awards. The Article concludes that where punitive damages are awarded, and especially where they are based upon unintentional conduct, comparative fault principles should apply in jurisdictions that have legislatively or judicially adopted such a system. The Article identifies and endorses several ways courts could implement such an approach. While courts have traditionally not been receptive to the idea of applying comparative fault to punitive awards the same way as with economic and noneconomic awards, this Article examines how the same fairness considerations apply.
Victor E. Schwartz and Christopher E. Appel,
Two Wrongs Do Not Make a Right: Reconsidering the Application of Comparative Fault to Punitive Damage Awards ,
78 Mo. L. Rev.
Available at: https://scholarship.law.missouri.edu/mlr/vol78/iss1/4