¶19 (concurring in part/dissenting in part) — I agree with the majority that a student under the age of 16 may not have contributory fault assessed against her based on her conduct in participating in a sexual relationship with a teacher. This is so for two reasons: (1) she lacks the capacity to consent to the sexual relationship and (2) the teacher’s sexual conduct is intentional. Contributory fault is not available to reduce damages caused by intentional conduct. Thus, I agree entirely with the majority that a claim of contributory fault is not available to Steven Diaz, the teacher. However, I disagree that a 13-year-old student claiming negligent hiring and negligent supervision against a school district and school officials is under no legal duty to exercise reasonable care for her own safety or is immune from the requirement she reasonably avoid injury or mitigate damages. Her capacity to do so should be left to the jury to decide.
Madsen, J.*73¶20 In this case, the school district and Principal Preston Andersen allege that the student lied to her parents and school officials about her encounter with Diaz. Nevertheless, the majority denies these defendants the opportunity to demonstrate that the student’s conduct, denying any sexual contact with the teacher, contributed to her injuries allegedly caused by the defendants’ negligent hiring and supervision of the teacher. In its reasoning, the majority blurs the distinction between intentional and negligent conduct, confuses the multiple defendant parties in this action, and ignores the importance of the facts suggesting that the student lied to her parents and school officials about the sexual relationship with the teacher. The majority’s holding is overly broad and effectively holds the school district and the principal liable for the intentional conduct of the codefendant teacher.
ANALYSIS
¶21 In 1981, the legislature replaced the prior comparative negligence statute, former RCW 4.22.010 (1973), repealed by Laws of 1981, ch. 27, § 17, with the current contributory fault provision as part of the tort reform act of 1981 with the purpose of creating a “fairer and more equitable distribution of liability among parties at fault.” Laws of 1981, ch. 27, § 1. Under RCW 4.22.005, any contributory fault chargeable to the claimant diminishes proportionately the amount of damages in an action based on fault. “Fault” is defined as “acts or omissions . . . that are in any measure negligent or reckless toward the person,” and the term “fault” also includes an “unreasonable failure to avoid an injury or to mitigate damages.” RCW 4.22.015. “A comparison of fault for any purpose under RCW 4.22.005 through 4.22.060 shall involve consideration of both the nature of the conduct of the parties to the action and the extent of the causal relation between such conduct and the damages.” Id.
¶22 Thus, the contributory fault statute encompasses a broader range of plaintiff conduct than the earlier provision *74and includes negligence,3 assumption of risk, strict liability, unreasonable failure to avoid injury, and unreasonable failure to mitigate damages. See 16 David K. DeWolf & Keller W. Allen, Washington Practice: Tort Law and Practice §§ 8.1-8.2, at 182-84 (2d ed. 2000). Assessing the contributory fault in an action for negligence is generally a question of fact for the jury. Bauman v. Crawford, 104 Wn.2d 241, 704 P.2d 1181 (1985).
¶23 The majority, though, reasons that because a school has a duty to protect students in its custody from reasonably anticipated dangers, students do not have a duty to protect themselves, relying on Niece v. Elmview Group Home, 131 Wn.2d 39, 929 P.2d 420 (1997). In Niece, a developmental^ disabled woman was sexually assaulted by a staff member at a group home. The woman brought a negligence action for damages against the group home for failure to protect, negligent supervision, and vicarious liability for the staff member’s actions. While normally there is no affirmative duty to prevent a third party from harming another, this court held that the group home had a duty to take reasonable precautions to protect the woman from the foreseeable consequences of her impairments, including possible sexual assaults by staff. Id. at 45-46. The court stated that the special relationship between the woman and the group home was akin to the relationships between schools and students, innkeepers and guests, and hospitals and patients. Id. at 44-45. If a special relationship is present, a party has a duty to prevent harms caused by the intentional or criminal conduct of third parties. Id. at 44.
¶24 The underlying rationale in Niece for the affirmative duty of a defendant in a protective special relationship is that the plaintiff is placed in the care of the defendant. Id. The majority takes this rationale and summarily concludes that students cannot be assessed with contributory fault because they have no duty to protect themselves. However, *75Washington cases discussing the effect of a protective special relationship between a plaintiff and a defendant on liability have done so in the context of establishing the duty of the defendant, not barring a claim of contributory fault. See Hutchins v. 1001 Fourth Ave. Assocs., 116 Wn.2d 217, 228, 802 P.2d 1360 (1991) (discussing situations where a defendant has a special relationship with a foreseeable victim giving rise to a duty to protect the person from physical injury resulting from the conduct of third parties); McLeod v. Grant County Sch. Dist. No. 128, 42 Wn.2d 316, 319-20, 255 P.2d 360 (1953) (discussing the duty of a school district to protect students from reasonably anticipated dangers).
¶25 The majority is correct that schools and children stand in a special relationship in which schools have a duty to protect children. Contrary to the majority’s holding, however, the existence of that special relationship does not absolve a plaintiff of the duty to protect herself. Washington courts have repeatedly apportioned damages based on the contributory fault of plaintiffs in protective special relationships with defendants. See Yurkovich v. Rose, 68 Wn. App. 643, 847 P.2d 925 (1993) (13-year-old girl assessed with contributory fault in an action against a school district alleging negligence by a bus driver); Pearce v. Motel 6, Inc., 28 Wn. App. 474, 480, 624 P.2d 215 (1981) (finding that a jury could have considered evidence of the care and attention exercised by a motel guest for her own safety in a negligence action against the motel).
¶26 In determining that contributory fault is never available because students do not have a duty to protect themselves from sexual abuse, the majority opinion too broadly excludes all theories of contributory fault defined in RCW 4.22.015. As discussed above, the term “fault” under RCW 4.22.015 encompasses a plaintiff’s unreasonable failure to avoid an injury or to mitigate damages. In personal injury cases, “[a] person who is liable for an injury to another is not liable for any damages arising after the original [injury] [event] that are proximately caused by *76failure of the injured person to exercise ordinary care to avoid or minimize such new or increased damage.” 6 Washington Pattern Jury Instructions: Civil 33.01, at 359 (5th ed. 2005). An injured person must use reasonable means under the circumstances to avoid or minimize damages. Cobb v. Snohomish County, 86 Wn. App. 223, 230, 935 P.2d 1384 (1997). “A person against whom another has committed a tort cannot recover for harm that would not have ensued if he had not unreasonably refused the offer of the tortfeaser, made in good faith, to prevent the harm.” Restatement (Second) of Torts § 918 cmt. i at 506 (1979).
¶27 Applied here (assuming the truth of the defendants’ allegations as we must at this juncture), the district and the school officials questioned the student in order to meet their duty to supervise Diaz and, thus, prevent harm or further harm ensuing from any negligence in hiring or supervising Diaz. The jury should be permitted to determine whether the student unreasonably rebuffed the schools’ efforts to prevent that harm or whether, under the circumstances, she lacked the capacity to do so.4
¶28 The majority errs in concluding that no fault may be assessed against the student because she had no duty to protect herself. RCW 4.22.015 includes multiple theories of fault, and a plaintiff’s duty is not corresponding under all theories. Under the theory of contributory fault that a plaintiff unreasonably failed to avoid injury or to mitigate damages, a defendant must establish that a plaintiff did not use reasonable means under the circumstances to avoid or minimize damages. Thus, facts indicating that the student did not tell school officials or her parents about the sexual relationship when asked prior to the last sexual encounter with the teacher should be submitted to the jury for its *77determination whether the student used reasonable means under the circumstances to avoid or minimize damages.
¶29 To justify categorically barring contributory fault in this case, the majority subsumes the alleged negligent conduct of the school district and the principal into the intentional conduct of the teacher. The majority relies on Hutchison ex rel. Hutchison v. Luddy, 2000 PA Super. 316, 763 A.2d 826, to support its contention that the sexual abuse committed by Diaz is inseparable from the school district’s and the principal’s duty to protect the student. In Hutchison, a Pennsylvania appellate court reasoned that because a priest’s intentional conduct in molesting children was central to the negligent hiring, supervision, and retention alleged on the part of a church, bishop, and diocese, comparative negligence was inapplicable. Id. at 848. The court stated that “comparative negligence is only an appropriate consideration in matters where there is negligence on the part of both the plaintiff and the defendant involved in causing the harm that results, not where the conduct of one is willful.” Id.
f 30 Under Washington law, the defense of contributory fault is not available to Steven Diaz and will not reduce the amount of damages for which he is liable. Intentional conduct is not included within the definition of fault under RCW 4.22.015, and it is clear that this omission by the legislature was purposeful. The final report from the Senate Select Committee on Tort and Product Liability Reform states that “[t]he idea is to permit the trier of fact to consider all the conduct short of what would be considered an intentional tort and make a reduction of the plaintiff’s recovery for his or her share.” 1 Senate Journal, 47th Leg., Reg. Sess., at 635 (Wash. 1981). This court has found that “intentional torts are part of a wholly different legal realm and are inapposite to the determination of fault pursuant to RCW 4.22.070(1).” Price v. Kitsap Transit, 125 Wn.2d 456, 464, 886 P.2d 556 (1994); see Tegman v. Accident & Med. Investigations, 150 Wn.2d 102, 110, 75 P.3d 497 (2003).
*78¶31 The majority’s conclusion that the teacher’s conduct is relevant in determining whether the defense of contributory fault is available to the school district and the principal hinges on the single appellate court decision from Pennsylvania, Hutchison, which is flawed by a conclusory analysis and little support. Additionally, the reasoning of Hutchison is inapposite under Washington law because it effectively imputes the teacher’s intentional conduct to the school district and Principal Andersen. In focusing on the teacher’s intentional conduct, the majority appears to ignore the nature of the student’s claim that is at issue here: negligent hiring and negligent supervision by the school district and the principal. It is axiomatic that sexual abuse is of a “wholly different legal realm” than unintentional torts and that there are public policies weighing against apportioning fault to the student for this intentional tort. However, under RCW 4.22.015, comparison of fault involves consideration of the nature of the party’s conduct and the extent of the causal relation between such conduct and the damages. The statute allows the trier of fact to compare conduct short of what would be considered an intentional tort to reduce the plaintiff’s recovery. Because RCW 4.22.015 does not include intentional conduct for the purposes of comparing fault, Diaz’s conduct cannot determine contributory fault as between the student and the school district and the principal.
¶32 A jury should not be precluded from inquiring whether, through her conduct, the student failed to avoid injury caused by the alleged negligence of the school in hiring or supervising Diaz. There is a question of fact whether the student lied to her parents and school officials about her relationship with Steven Diaz. Specifically, the defendants argue that school officials questioned the student prior to the final sexual encounter between her and Diaz, and the student denied that she was in a sexual relationship with him. Under the majority’s analysis, the question of whether these actions hindered the school district and the principal from fulfilling their duty to *79protect the student and contributed to her injury cannot be considered by the jury in assessing fault. In effect, the student and her parents will be able to recover monetary damages from the district and the principal for negligent hiring and negligent supervision for failing to fulfill a duty the student may have obstructed them from fulfilling. I respectfully dissent.
The comparative negligence statute, former RCW 4.22.010, compared only negligent conduct.
“Washington has long recognized the special standard of care applicable to children: a child’s conduct is measured by the conduct of a reasonably careful child of the same age, intelligence, maturity, training and experience.” Bauman, 104 Wn.2d at 244. The question of whether a child between the ages of 6 and 17 has the capacity necessary to be assessed contributory fault is generally a question of fact for the jury. Id.