Beul, Kristin v. ASSE Int'l, Inc. ( 2000 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 99-3978
Kristin Beul, et al.,
Plaintiffs-Appellees,
v.
ASSE International, Inc., et al.,
Defendants-Appellants,
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 98-C-426--Myron L. Gordon, Judge.
Argued September 7, 2000--Decided November 15,
2000
Before Bauer, Posner, and Evans, Circuit
Judges.
Posner, Circuit Judge. In this diversity
suit for negligence, governed (so far as
the substantive issues are concerned) by
Wisconsin law, the jury returned a
verdict finding that plaintiff Kristin
Beul’s damages were $1,100,000 and that
she was 41 percent responsible for them;
in accordance with the verdict, judgment
was entered against defendant ASSE
International for $649,000 (59 percent of
$1.1 million). The other parties can be
ignored. The appeal raises issues of both
tort law and civil procedure.
The defendant is a nonprofit corporation
that operates international student
exchange programs. For a fee of $2,000 it
placed Kristin, a 16-year-old German girl
who wanted to spend a year in the United
States, with the Bruce family of Fort
Atkinson, Wisconsin. The family, which
consisted of Richard Bruce, age 40, his
wife, and their 13-year-old daughter, had
been selected by Marianne Breber, the
defendant’s Area Representative in the
part of the state that includes Fort
Atkinson. Breber is described in the
briefs as a "volunteer," not an employee;
the only payment she receives from ASSE
is reimbursement of her expenses. Nothing
in the appeal, however, turns either on
her "volunteer" status or on ASSE’s
nonprofit status. Charities are not
immune from tort liability in Wisconsin,
Kojis v. Doctors Hospital, 107 N.W.2d 131(Wis. 1961), and ASSE does not deny that
if Breber was negligent it is liable for
her negligence under the doctrine of
respondeat superior, even though she was
not an employee of ASSE. The doctrine is
nowadays usually described as making an
employer liable for the torts of his
employees committed within the scope of
their employment, but strictly speaking
the liability is that of a "master" for
the torts of his "servant" and it extends
to situations in which the servant is not
an employee, provided that he is acting
in a similar role, albeit as a volunteer.
E.g., Heims v. Hanke, 93 N.W.2d 455, 457-
58 (Wis. 1958), overruled on other
grounds by Butzow v. Wausau Memorial
Hospital, 187 N.W.2d 349, 353-54 (Wis.
1971); Morgan v. Veterans of Foreign
Wars, 565 N.E.2d 73, 77 (Ill. App. 1990);
Restatement (Second) of Agency sec. 225
(1958). In Morgan, as in this case, the
defendant was a charity.
There is also no argument that the
contract between ASSE and Kristin’s
parents is the exclusive source of ASSE’s
legal duties to Kristin. Negligence in
the performance of a contract that
foreseeably results in personal injury,
including as here emotional distress, is
actionable under tort law. See, e.g.,
Kuehn v. Childrens Hospital, 119 F.3d
1296 (7th Cir. 1997). As we pointed out
in Rardin v. T & D Machine Handling,
Inc., 890 F.2d 24, 29 (7th Cir. 1989),
"tort law is a field largely shaped by
the special considerations involved in
personal-injury cases, as contract law is
not. Tort doctrines are, therefore, prima
facie more suitable for the governance of
such cases than contract doctrines are"
even when victim and injurer are linked
by contract. See also Fireman’s Fund
American Ins. Cos. v. Burns Electronic
Security Services, Inc., 417 N.E.2d 131,
134 (Ill. App. 1980).
As the sponsor of a foreign exchange
student, ASSE was subject to regulations
of the United States Information Agency
that require sponsors to train their
agents, "monitor the progress and welfare
of the exchange visit," and require a
"regular schedule of personal contact
with the student and host family." 22
C.F.R. sec.sec. 514.10(e)(2), 514.25
(d)(1), (4) (now sec.sec. 62.10(e)(2),
62.25(d)(1), (4)). These regulations are
intended for the protection of the
visitor, see "Exchange Visitor Program,"
58 Fed. Reg. 15,180, 15,190 (1993)
(statement of USIA accompanying
promulgation of 26 C.F.R. sec. 514.25),
and the jury was therefore properly
instructed, under standard tort
principles not challenged by ASSE, that
it could consider the violation of them
as evidence of negligence. There is no
argument that the regulations create a
private federal right of suit that would
allow the plaintiffs to sue ASSE under
the federal-question jurisdiction of the
federal courts (and we have found no case
suggesting there is such a right), or
that Wisconsin is legally obligated to
use the regulations to define the duty of
care of a sponsor sued under state tort
law. (In other words, there is no
argument that the federal regulations
have preemptive force in state tort
litigation.) But the district court was
entitled to conclude that a state court
would look to the regulations for
evidence of the sponsor’s duty of care.
Courts in tort cases commonly take their
cues from statutes or regulations
intended to protect the safety of the
class to which the tort plaintiff
belongs. See, e.g., Bennett v. Larsen
Co., 348 N.W.2d 540, 548-49 (Wis. 1984).
ASSE is also a member of a private
association of sponsors of foreign
exchange students, the Council on
Standards for International Educational
Travel, which requires members to
"maintain thorough, accurate, and
continual communication with host
families and school authorities." A jury
could reasonably consider the Council’s
statement as additional evidence of the
standard of care applicable to sponsors
and it could also accept the plaintiff’s
argument that due care required Breber to
try to develop rapport with Kristin so
that Kristin would trust and confide in
her and so that Breber could pick up any
signals of something amiss that Kristin
might be embarrassed to mention unless
pressed.
Kristin Beul arrived in Wisconsin from
Germany on September 7, 1995, and was met
at the airport by Richard Bruce and his
daughter. Marianne Breber did not go to
the airport to meet Kristin. In fact,
apart from a brief orientation meeting at
a shopping mall in September with Kristin
and one other foreign exchange student,
at which Breber gave Kristin her phone
number, she didn’t meet with Kristin
until January 21 of the following year--
under unusual circumstances, as we’ll
see. She did call the Bruce home a few
times during this period and spoke
briefly with Kristin once or twice, but
she made no effort to make sure that
Kristin was alone when they spoke. She
would ask in these calls how Kristin was
doing and Kristin would reply that
everything was fine. Breber did not talk
to Mrs. Bruce, who would have told her
that she was concerned that her husband
seemed to be developing an inappropriate
relationship with Kristin.
Kristin had led a sheltered life in
Germany. She had had no sexual
experiences at all and in fact had had
only two dates in her lifetime. On
November 17, 1995, Richard Bruce, who
weighed almost 300 pounds and who was
alone at home at the time except for
Kristin, came into the loft area in which
she slept and raped her.
This was the start of a protracted
sexual relationship. In the months that
followed, Bruce frequently would call the
high school that Kristin was attending
and report her ill. Then, with Mrs. Bruce
off at work and the Bruce’s daughter at
school, Bruce would have sex with
Kristin. By February 22, Kristin had been
absent 27 days from school. Bruce
brandished a gun and told Kristin that
he would kill himself if she told anyone
what they were doing together.
Curiously, in January Bruce and Kristin
called Marianne Breber and told her that
Mrs. Bruce appeared to be jealous of the
time that her husband was spending with
Kristin. Bruce invited Breber to dinner
on January 21. Breber did not meet
privately with either Kristin or Mrs.
Bruce on that occasion, and she observed
nothing untoward. In February, however,
Mrs. Bruce told Breber that she and her
husband were getting divorced, and Breber
forthwith found another host family to
take in Kristin. Kristin didn’t want to
leave the Bruce home, but on February 22
Breber arrived there with a sheriff’s
deputy to remove Kristin. The deputy
asked Kristin in the presence of Richard
Bruce and his daughter whether there was
any inappropriate sexual activity between
Richard and Kristin, and Kristin answered
"no." The same day Breber, upon calling
Kristin’s school to tell them that
Kristin would be out for a few days in
connection with her change of residence,
learned for the first time of Kristin’s
many absences.
Kristin lived with Breber for a few days
between host families, but Breber didn’t
use the occasion to inquire about any
possible sexual relationship between
Kristin and Bruce. Breber told the new
host family that Kristin was not to
contact Bruce for a month, but she did
not tell Bruce not to have any contact
with Kristin. They continued to
correspond and talk on the phone. Kristin
had decided that she was in love with
Bruce and considered herself engaged to
him.
In April, Mrs. Bruce discovered some of
Kristin’s love letters and alerted the
authorities. A sheriff’s deputy
interviewed Bruce. The next day Bruce,
who had committed a misdemeanor by having
sex with a 16 year old, Wis. Stat. sec.
948.09, killed himself, leaving a note
expressing fear of jail. It is undisputed
that the events culminating in Bruce’s
suicide inflicted serious psychological
harm on Kristin; the jury’s assessment of
her damages is not claimed to be
excessive.
The defendant argues that it was
entitled to judgment as a matter of law,
or alternatively to a new trial because
of trial error. The first argument
divides into three: there was
insufficient proof of a causal
relationship between the defendant’s
negligence in failing to keep closer tabs
on Kristin Beul and her sexual
involvement with Bruce culminating in his
suicide; Bruce’s criminal activity was
the sole, or superseding, cause of her
harm; and the harm was too "remote" in a
legal sense from the defendant’s failure
of due care to support liability.
Since Kristin was determined to conceal
her relationship with Bruce, the
defendant argues, no amount of care by
Breber would have warded off the harm
that befell Kristin; she would have
stonewalled, however pertinacious Breber
had been in her questioning. This is
conceivable, and if true would let ASSE
off the hook; if there was no causal
relation between the defendant’s
negligence and the plaintiff’s harm,
there was no tort. E.g., Merco
Distributing Corp. v. Commercial Police
Alarm Co., 267 N.W.2d 652 (Wis. 1978);
Vastola v. Connecticut Protective System,
Inc., 47 A.2d 844, 845 (Conn. 1946);
Guthrie v. American Protection
Industries, 206 Cal. Rptr. 834, 836 (Cal.
App. 1984).
But it is improbable, and the jury was
certainly not required to buy the
argument. Suppose Breber had inquired
from the school how Kristin was doing--a
natural question to ask about a foreigner
plunged into an American high school. She
would have learned of the numerous
absences, would (if minimally alert) have
inquired about them from Kristin, and
would have learned that Kristin had been
"ill" and that Richard Bruce had been
home and taken care of her. At that point
the secret would have started to unravel.
As for the argument that Bruce’s
misconduct was so egregious as to let
ASSE off the hook, it is true that the
doctrine of "superseding cause" can
excuse a negligent defendant. Suicide by
a sane person, unless clearly foreseeable
by the tortfeasor, for example a
psychiatrist treating a depressed person,
is a traditional example of the operation
of the doctrine. E.g., McMahon v. St.
Croix Falls School District, 596 N.W.2d
875, 879 (Wis. App. 1999); Wyke v. Polk
County School Board, 129 F.3d 560, 574-75
(11th Cir. 1997); Bruzga v. PMR
Architects, P.C., 693 A.2d 401 (N.H.
1997); Edwards v. Tardif, 692 A.2d 1266,
1269 (Conn. 1997); W. Page Keeton et al.,
Prosser and Keeton on the Law of Torts
sec. 44, p. 311 (5th ed. 1984). So if
Bruce’s boss had refused him a raise and
Bruce had responded by killing himself,
the boss even if somehow negligent in
failing to give him the raise would not
be considered the legal cause of the
death. Or if through the carelessness of
the driver a truck spilled a toxic
substance and a passerby scraped it up
and poisoned his mother-in-law with it,
the driver would not be liable to the
mother-in-law’s estate; the son-in-law’s
criminal act would be deemed a
superseding cause. See Giebel v.
Richards, 591 N.W.2d 901 (Wis. App.
1999); Henry v. Merck & Co., 877 F.2d
1489, 1494-97 (10th Cir. 1989); Rowe v.
State Bank of Lombard, 531 N.E.2d 1358,
1368 (Ill. 1988); Shelton v. Board of
Regents, 320 N.W.2d 748, 752-53 (Neb.
1982).
Animating the doctrine is the idea that
it is unreasonable to make a person
liable for such improbable consequences
of negligent activity as could hardly
figure in his deciding how careful he
should be. Cf. Schuster v. Altenberg, 424
N.W.2d 159, 165 (Wis. 1988). The doctrine
is not applied, therefore, when the duty
of care claimed to have been violated is
precisely a duty to protect against
ordinarily unforeseeable conduct, as in
our earlier example of a psychiatrist
treating depression. The existence of the
duty presupposes a probable, therefore a
foreseeable, consequence of its breach.
(All that "foreseeable" means in tort law
is probable ex ante, that is, before the
injury that is the basis of the tort
suit.) Thus a hospital that fails to
maintain a careful watch over patients
known to be suicidal is not excused by
the doctrine of superseding cause from
liability for a suicide, e.g., DeMontiney
v. Desert Manor Convalescent Center, 695
P.2d 255, 259-60 (Ariz. 1985), any more
than a zoo can escape liability for
allowing a tiger to escape and maul
people on the ground that the tiger is
the superseding cause of the mauling.
City of Mangum v. Brownlee, 75 P.2d 174(Okla. 1938); see also Scorza v.
Martinez, 683 So. 2d 1115, 1117 (Fla.
App. 1996); Behrens v. Bertram Mills
Circus, Ltd., [1957] 2 Q.B. 1, 1 All E.R.
583 (1957).
So Kristin’s high school would not have
been liable for the consequences of
Bruce’s sexual activity with Kristin even
if the school should have reported her
frequent absences to Breber; the criminal
activities with their bizarre suicide
sequel were not foreseeable by the
school. But part of ASSE’s duty and
Breber’s function was to protect foreign
girls and boys from sexual hanky-panky
initiated by members of host families.
Especially when a teenage girl is brought
to live with strangers in a foreign
country, the risk of inappropriate sexual
activity is not so slight that the
organization charged by the girl’s
parents with the safety of their daughter
can be excused as a matter of law from
making a responsible effort to minimize
the risk. See, e.g., Niece v. Elmview
Group Home, 929 P.2d 420, 427 (Wash.
1997); R.E. v. Alaska, 878 P.2d 1341,
1346-48 (Alaska 1994); Juarez v. Boy
Scouts of America, Inc., 97 Cal. Rptr. 2d
12, 31 (Cal. App. 2000); Phillips v.
Deihm, 541 N.W.2d 566, 573 (Mich. App.
1995). Sexual abuse by stepfathers is not
uncommon, see, e.g., Diana E.H. Russell,
"The Prevalance and Seriousness of
Incestuous Abuse: Stepfathers vs.
Biological Fathers," 8 Child Abuse &
Neglect 15 (1984), and the husband in a
host family has an analogous relationship
to a teenage visitor living with the
family.
It is true (we turn now to the issue of
remoteness) that when through the
negligence of an alarm company, to which
ASSE in its role as protector of foreign
students from the sexual attentions of
members of host families might perhaps be
analogized, a fire or burglary is not
averted or controlled in time, the
company is generally not liable for the
consequences; the consequences are deemed
too remote. E.g., Edwards v. Honeywell,
Inc., 50 F.3d 484, 491 (7th Cir. 1995);
Fireman’s Fund American Ins. Cos. v.
Burns Electronic Security Services, Inc.,
supra, 417 N.E.2d at 132-33; cf.
Fireman’s Fund Ins. Co. v. Morse Signal
Devices, 198 Cal. Rptr. 756, 760 (Cal.
App. 1984); see also Heitsch v. Hampton,
423 N.W.2d 297, 299 (Mich. App. 1988).
There are two related considerations. One
is that so many factors outside the alarm
company’s control determine the
likelihood and consequences (whether in
property loss or personal injury) of a
failure of its alarm to summon prompt aid
on a particular occasion that the company
is bound to lack the information that it
needs to determine what level of care to
take to prevent a failure of its system.
See, e.g., Guthrie v. American Protection
Industries, supra, 206 Cal. Rptr. at 836.
This basis of the doctrine is the same as
that of the doctrine of superseding
cause. A harm is not foreseeable in the
contemplation of the law if the injurer
lacked the information he needed to
determine whether he must use special
care to avert the harm. See, e.g., Lodge
v. Arett Sales Corp., 717 A.2d 215, 223
(Conn. 1998). The second point is that
the alarm company is not the primary
accident avoider but merely a backup, and
the principal responsibility for avoiding
disaster lies with the victim. See, e.g.,
Rardin v. T & D Machine Handling, Inc.,
supra, 890 F.2d at 27; EVRA Corp. v.
Swiss Bank Corp., 673 F.2d 951, 957-58
(7th Cir. 1982). The points are related
because both involve the difficulty a
backup or secondary protector against
disaster has in figuring out the
consequence of a lapse on its part.
Neither point supports ASSE, which was
standing in the shoes of the parents of a
young girl living in a stranger’s home
far from her homeland and could
reasonably be expected to exercise the
kind of care that the parents themselves
would exercise if they could to protect
their 16-year-old daughter from the
sexual pitfalls that lie about a girl of
that age in those circumstances. ASSE
assumed a primary role in the protection
of the girl.
So the plaintiff was entitled to get to
the jury, and we turn to the two alleged
errors in the procedure at trial. The
first concerns the judge’s response to a
question submitted to him by the jury
during its deliberations. To try to
discipline the jury’s thinking, Wisconsin
makes the submission of a special verdict
the default rule in all civil cases. Wis.
Stat. sec. 805.12(1) and Judicial Council
Committee’s 1974 Note thereto; see
Anderson v. Seelow, 271 N.W. 844, 846
(Wis. 1937). In a negligence case,
therefore, the jury will be asked to
enter separately on the verdict form the
amount of damages and the percentage of
the plaintiff’s comparative fault and not
make the "bottom line" computation, which
involves deducting from the amount of
damages that amount times the plaintiff’s
percentage of comparative fault. The fear
is that the jury will fill in the bottom
line first and then work backwards,
failing to give due consideration to the
significance of the plaintiff’s fault.
McGowan v. Story, 234 N.W.2d 325, 329
(Wis. 1975). The question the jury asked
the judge in this case was, "What bearing
do the negligence factors have on the
amounts we may or may not choose to
award?" The judge’s answer, given after
consultation with the lawyers, was that
"the comparison factor, if you find both
parties negligent, has a significant
impact upon the award that the Court
enters. . . . If you answer the
comparison question, then it is a problem
that’s presented to the Court as to . .
. how to apply those percentages to the
damages." ASSE argues that this answer
was inconsistent with the policy of
Wisconsin law of keeping the jury from
working backwards from the bottom line in
completing the rest of the special
verdict.
In making this argument ASSE assumes
that the federal district court in a
diversity case is bound not only by
Wisconsin’s presumption in favor of the
use of special verdicts but also by
whatever standard Wisconsin courts use to
determine how a judge should respond to a
jury’s question arising from the use of a
special verdict. That is incorrect.
Wisconsin’s affection for the special
verdict is not limited to a particular
area of law, which would suggest that it
was motivated by a desire to shape
substantive policy in that area. Compare
Herremans v. Carrera Designs, Inc., 157
F.3d 1118, 1123 (7th Cir. 1998); Harbor
Ins. Co. v. Continental Bank Corp., 922
F.2d 357, 364 (7th Cir. 1990). Rules of
general applicability and purely
managerial character governing the jury,
such as the form in which a civil jury is
instructed, are quintessentially
procedural for purposes of the Erie rule.
See, e.g., Odekirk v. Sears Roebuck &
Co., 274 F.2d 441, 445 (7th Cir. 1960);
Turlington v. Phillips Petroleum Co., 795
F.2d 434, 441 (5th Cir. 1986); Seltzer v.
Chesley, 512 F.2d 1030, 1035 (9th Cir.
1975); 9A Charles Alan Wright & Arthur R.
Miller, Federal Practice and Procedure
sec. 2555, p. 432 (1995). They are
therefore supplied by federal law in
diversity as in all other federal cases.
But supplied by what federal law here?
Rule 49(a) of the Federal Rules of Civil
Procedure authorizes but does not direct
the use of special verdicts, and this is
the rule that federal courts are to
follow, as the cases hold without
exception. E.g., Sadowski v. Bombardier
Ltd., 539 F.2d 615, 622 (7th Cir. 1976);
Geosearch, Inc. v. Howell Petroleum
Corp., 819 F.2d 521, 527 (5th Cir. 1987);
Shultz v. Rice, 809 F.2d 643, 650 (10th
Cir. 1986); DeEugenio v. Allis-Chalmers
Mfg. Co., 210 F.2d 409, 414-15 (3d Cir.
1954); Lang v. Rogney, 201 F.2d 88, 97
(8th Cir. 1953); 9A Wright & Miller,
supra, sec. 2502, pp. 154-55. We think it
follows that whether the federal court
should try to keep the jury in the dark
about the legal effect of the jury’s
answers to the questions posed to it by
the special verdict is also a question of
federal law, whether viewed as an
interpretation of Rule 49(a) or as the
creation of a federal common law of
special verdicts to supplement the rule.
E.g., Thedorf v. Lipsey, 237 F.2d 190(7th Cir. 1956); Carvalho v. Raybestos-
Manhattan, Inc., 794 F.2d 454, 457 n. 2
(9th Cir. 1986); Lowery v. Clouse, 348
F.2d 252, 260-61 (8th Cir. 1965).
Although the cases (particularly in this
court) make clear that the judge has no
general duty to inform the jury of the
legal consequences of its verdict, see,
e.g., Freeman v. Chicago Park District,
189 F.3d 613, 616 (7th Cir. 1999), and
intimate that in some circumstances the
giving of such information might
interfere with the jury’s appraisal of
the facts, e.g., Gullett v. St. Paul Fire
& Marine Ins. Co., 446 F.2d 1100, 1105
(7th Cir. 1971), there is no rule against
giving the information, Simms v. Village
of Albion, 115 F.3d 1098, 1107 (2d Cir.
1997); Lowery v. Clouse, supra, 348 F.2d
at 261; 9A Wright & Miller, supra, sec.
2509, p. 198, nor have we found any case
in which the giving of it was held to be
a reversible error. In fact, we find it
difficult to conceive of such a case. As
Lowery points out, since the judge could
submit to the jury instead of a special
verdict a general verdict with special
interrogatories, a form of verdict that
would reveal to the jury the legal
consequences of its specific findings,
there is no purpose in forbidding him to
do the same thing with a special verdict.
All this is rather to one side of the
present case, since in the particular
circumstances presented here it is
apparent that the judge gave as good an
answer to the jury’s question as he could
have done, and a better answer than
saying nothing and leaving the jury
confused. Cf. Bollenbach v. United
States, 326 U.S. 607, 612-13 (1946);
Davis v. Greer, 675 F.2d 141, 145 (7th
Cir. 1982); Testa v. Wal-Mart Stores,
Inc., 144 F.3d 173, 176 (1st Cir. 1998).
He made clear in the second part of his
answer that the jurors were not to make
the bottom-line computation. Had he said
in the first part that their answer to
the question of comparative fault would
have no or an insignificant impact on the
damages award, that might have been an
invitation to them not to take it
seriously; but he did not do that.
The defendant also complains about the
following instruction to the jury:
"You’re instructed that the law of
Wisconsin does not allow a child under
the age of 18 to consent to an act of
intercourse." This was a reference to the
state’s statutory rape law, but it was
not elaborated further. The jury was
instructed to consider the instructions
as a whole and another instruction was
that it was to consider Kristin’s
comparative fault. The jury assessed that
fault at 41 percent, so obviously it did
not think the age-of-consent instruction
prevented it from considering Kristin’s
responsibility for the harm that befell
her as a consequence of her sexual
relationship with Bruce.
But should the jury have been told what
the age of consent is in Wisconsin and,
if so, was the information conveyed to
the jury in the right way? The answer to
the first question is yes. The age of
consent fixed by a state represents a
legislative judgment about the maturity
of girls in matters of sex. Eighteen is a
pretty high age of consent by today’s
standards and of course the law was not
fixed by reference to German girls; but
it is nonetheless a reminder that teenage
children are not considered fully
responsible in sexual matters, and this
was something relevant to the jury’s
consideration of Kristin’s share of
responsibility for the disaster. The
criminal law is frequently used to set a
standard of care for civil tort cases--
for the general principle, see, e.g.,
Bennett v. Larsen Co., supra, 348 N.W.2d
at 548; Cutsforth v. Kinzua Corp., 517
P.2d 640, 647 (Ore. 1973); Southern
Pacific Co. v. Watkins, 435 P.2d 498, 511
(Nev. 1967), and for its application to
age of consent see Doe v. Greenville
Hospital System, 448 S.E.2d 564, 566
(S.C. App. 1994); cf. Mary M. v. North
Lawrence Community School Corp., 131 F.3d
1220, 1227 (7th Cir. 1997)--and that was
essentially the use made of it here. It
would have been error to instruct the
jury that because Kristin was below the
age of consent her comparative fault must
be reckoned at zero. That would have
given too much force to the criminal
statute in this civil case, for the
statute cannot be considered a
legislative judgment that minors are
utterly incapable of avoiding becoming
ensnared in sexual relationships. A
comparative-fault rule, moreover,
requires gradations of victim
responsibility that are alien to the
normal criminal prohibition. Victim fault
is not a defense, either partial or
complete, to criminal liability. It is
not a defense to a charge of rape that,
for example, the victim was dressed
provocatively, or drunk, or otherwise
careless in the circumstances in which
the rape occurred.
It would have been better, though, if
the jury had been told how it should take
the age of consent into account in their
deliberations. It should have been told
that in deciding how much responsibility
to assign to Kristin for the events that
gave rise to the harm for which she was
suing, it could consider that the state
had made a judgment that girls below the
age of 18 should be protected by the
criminal law from sexual activity even if
they agree to it. As it was, the jury was
left to tease out the relation between
the age-of-consent instruction and the
comparative-fault instruction for itself.
But we cannot think that it was other
than a harmless error. Indeed, we are
surprised that the jury assigned so large
a responsibility to this young foreign
girl virtually abandoned by the agency
that was standing in for her parents. The
jury verdict was rather favorable to the
defendant than otherwise.
Affirmed.