OPINION
{1} The jury found that Defendant falsely arrested and falsely imprisoned Plaintiff, resulting in $55,000 in compensatory damages. Over Plaintiffs objection, the jury was allowed to determine whether Plaintiff was comparatively negligent, and the jury found that Plaintiff was 25% negligent. Plaintiff was awarded a judgment of $41,250 in compensatory damages, plus costs, after the reduction of 25% from the gross jury verdict of $55,000. Plaintiff assumes the evidence is sufficient to support the jury’s finding and he does not challenge the jury’s factual finding
FACTS
{2} Defendant, a Deputy Sheriff with the Valencia County Sheriffs Department, was in the process of issuing Plaintiffs girlfriend a traffic citation. Her car was parked on the side of the road, with Defendant’s vehicle parked behind it. Plaintiff drove up to the two vehicles, parked his truck in front of his girlfriеnd’s ear, got out of his truck, and started approaching his girlfriend’s car. Defendant was in his vehicle writing the citation, and not knowing who Plaintiff was or his intentions, he repeatedly instructed Plaintiff to return to his truck over the loudspeaker on his police vehicle. Plaintiff did not comply and сontinued to approach his girlfriend’s ear. Plaintiffs girlfriend got out of her car and told him to return to his truck by using arm motions. Defendant saw this and realized that Plaintiff was either deaf or had a hearing problem. He then got out of his police car, approached Plaintiff, and gestured in a pointing motion from Plaintiffs body to his truck several times to instruct Plaintiff to return to his truck. Plaintiff still refused to comply, and he continued to demand that Defendant tell him why he had stopped his girlfriend. Because Plaintiff is deaf, he spoke in a loud and somewhat aggressive manner, while also using hand gestures. At one point while standing within several feet of Defendant, Plaintiff made a hand gesture Defendant found to be threatening. Defendant arrested Plaintiff for resisting, evading, or obstructing an officer.
{3} Plaintiff sued Defendant. The Valencia County Sheriffs Department and Valencia County were named defendants on the basis of respondeat superior. Claims of malicious prosecution, false arrest, false imprisonment, and battery were submitted to the jury. The jury found that Defendant did not maliciously prosecute Plaintiff, and that while Defendant committed a battery, it did not proximately cause any damages to Plaintiff. Defendant was found to have committed a false arrest and false imprisonment of Plaintiff, proximately causing $55,000 in damages. The jury found Defendant 75% negligent and Plaintiff 25% negligent.
{4} The jury was instructed in pertinent part that to establish his claim of fаlse arrest and false imprisonment Plaintiff had the burden of proving, “[Defendant] arrested and confined Plaintiff without probable cause,” and that “[f]or a law enforcement officer to make a ‘lawful arrest’ he must have ‘probable cause’ that a crime has been committed and that the person to be arrested committed it. ‘Probable Cause’ is a reasonable ground for belief that a crime has been committed.” The jury was told in pertinent part that Defendant claimed that, “Plaintiff was comparatively negligent and that such comparаtive negligence was a proximate cause of Plaintiffs alleged damages.” The jury was also instructed that to establish his claim of comparative negligence, “Defendant must show that Plaintiff did not act with ordinary care, was negligent in failing to return to his vehicle when told to do so, and that such was a proximate, cause of Plaintiffs arrest and subsequent damages.” The jury found that Plaintiff was comparatively at fault in failing to return to his vehicle when told to do so, and that his comparative fault was a proximate cause of his injuries and damages. DISCUSSION
{5} Plaintiff states that the issue presented in this case is whether a jury can properly apportion fault between a defendant who commits an intentional tort and a plaintiff who is negligent. We are therefore asked to decide whether the trial court fairly instructed the jury on comparative fault, a question of law we review de novo. Chamberland, v. Roswell Osteopathic Clinic, Inc.,
{6} No New Mexico cases directly address when a jury has properly apportioned fault between a defendant who commits an intentional tort and a plaintiff who is negligent. Courts which have addressed this issue have arrived at divergent conclusions. Compare Mazzilli v. Doud,
The clearly prevailing view is that comparative negligence principles are not applicable to intentional torts (§ 3[a]). The rationale for this view rests on the general assumption that comparative negligence evolved to provide compensation to tort victims, who were barred by the harsh doctrine of contributory negligence, and should not be used to diminish recovery where the common law had previously treated an intentional tort victim’s contributory fault as irrelevant to damage recovery where an intentional tort was inflicted.
Id. § 2[a], at 533. New Mexico has statutorily adopted the majority view as articulated in Section 41-3A-1(C)(1) which states that joint and several liability “shall apply to any person or person who acted with the intention of inflicting injury or damage.” The reasoning justified in the majority view is the concept of what constitutes an “intentional tort.” For example, Deane v. Johnston,
Intent in the law of torts means that the actor acts for the purpose of causing an invasion of another’s interest or knows that such an invasion is resulting, or is substantially certain to result, from his conduct. It is not enough that the act itself is intentionally done.
Id. at 8. Mazzilli incorporates this concept of intent in describing an intentional tort for which comparative negligence is not a defense.
It is the rule of law in virtually all states that fault should not be apportioned between an intentional tоrtfeasor and a merely negligent victim. The reasons underlying this rule are persuasive. Intentional torts are punished not because the actor failed to use reasonable care, but because the actor intended the act. The difference between the victim’s actions and the defendant’s action is not one of degree, but of kind, and they are therefore not comparable.
(citations omitted). See also Schwartz, supra, note 3, at 532 (stating “an ‘intentional tort’ requires more than an intentional act, in that an ‘intentional tort’ by its vеry nature intends to harm”); Gibson v. Brewer,
{7} Plaintiffs argument requires us to assume that false arrest and false imprisonment are “intentional torts” in the foregoing sense. However, the jury was not required to determine that Defendant acted “intentionally” under its instructions. The jury was instructed that it had to find that Defendant arrested and confined Plaintiff without “probable cause,” and it was further instructed that “probable cause” is “a reasonable ground for belief that a crime has been committed.” The jury was therefore only required
{8} We hold that it was proper for the jury to consider whether Plaintiff was comparatively at fault in this ease. In Scott v. Rizzo,
{9} The doctrine of pure comparative negligence adopted in New Mexico simply recognizes that the fault of two or more parties may combine to cause an injury. It denies recovery to a plaintiff to the extent his fault contributed to his own injury. The instructions in this case defining the elements of false arrest and false imprisonment were not objected to and they are the law of the сase. See Couch v. Astec Indus., Inc.,
{10} Plaintiff and Defendant both argue that Reichert v. Atler,
CONCLUSION
{11} The order of the district court is affirmed.
{12} IT IS SO ORDERED.