Anglo-American tort doctrine pays considerable attention to the conduct of the victim as well as the conduct of the injurer. Moreover, a symmetrical standard of care for victims and injurers is commonly invoked: 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. Moreover, a uniformly symmetrical approach ignores the nuances of 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., when the defendant has a duty to protect the victim from his own vulnerability or incapacity, or when 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). Even when victim conduct is compared to injurer conduct, the way in which victim conduct is relevant to tort liability is frequently qualitatively different from 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 largely nonconsequentialist rather than a purely utilitarian account of tort law. The law could do more to address the unjustifiable use of symmetrical criteria – for example, the fact-finder could be instructed, or the trial judge could be directed, to treat unreasonable risk to others as a more serious type of fault than unreasonable risk to self.
