dissenting.
For me, contributory negligence and humanitarian negligence are extraneous in a case involving an intentional tort. “The ordinary contributory negligence of the plaintiff is to be set over against the ordinary negligence of the defendant, to bar the action. But where the defendant’s conduct is actually intended to inflict harm upon the plaintiff, there is a difference, not merely in degree but in the kind of fault; and the defense never has been extended to such intentional torts.” W. Prosser, Law of Torts, § 65, p. 426 (4th ed. 1971). Implementation of the proposition “that where persons contribute to cause an occurrence, and damage is suffered, each should bear responsibility only in proportion to his fault” would seem particularly appropriate in this case. Steinman v. Strobel, 589 S.W.2d 293, 296 (Mo. banc 1979) (Donnelly, J., dissenting).
However, to borrow from Judge Finch of the Court of Appeals of New York: “If what I have said does not convince the majority of the court, nothing that I can say will do so. I have tried faithfully, and, I hope, with proper respect, for certainly I have not meant to be wanting in that, to point out the mistake which, it seems to me, they are about to make. Theirs, however, must be both the responsibility and its consequences.” See Cardozo, Law and Literature (1925).
I respectfully dissent.