with whom CARPENETI, Justice, joins, dissenting.
There generally can be no tort recovery for a suicide.1 Since a person who consents to conduct of another that is intended to harm him cannot recover in tort,2 it follows, a fortiori, that a person cannot recover for his own conduct having the same intent. Recovery for suicide is thus typically permitted only where the suicidal act is not considered to be intentional, either because the defendant's tortious conduct left the suicidal individual unable to realize the consequences of his actions, or because it created in him an uncontrollable impulse to commit suicide3 For shorthand purposes I refer to the principle that bars recovery for intended self-harm as the "intentionality rule."
In Kanayuwrak v. North Slope Borough,4 involving a jail suicide by an intoxicated prisoner, and Wilson v. City of Kotzebue,5 involy-ing an intoxicated prisoner who was badly burned after setting fire to his cell, we recognized a further exception to the intentionality rule in the custodial context. Drawing on language from such cases as Dezgort v. Village of Hinsdale,6 we held that the intentionality rule would not apply in a custodial setting if the prisoner "was incapable of exercising due care by virtue of his mental illness, drug addiction, or intoxication."7
The instructions given by the trial court in this case faithfully expressed the exception to the intentionality rule established by Kanay-ural and Wilson. But today's majority opinion changes the law. It does away with the *479incapacity-based exception to the intentionality rule and instead declares that the rule itself does not apply in a custodial setting.
We do not depart from the precedent set by our case law except when "clearly con-vinceed" that a "rule was originally erroneous or is no longer sound because of changed conditions.8 Those conditions are not met here, in my opinion.
The incapacity-based exception was not er-roncous when adopted. It was a reflection of cases in other jurisdictions that similarly sought to limit the sometimes harsh application of the intentionality rule when applied to prisoner suicides.9 These cases contrasted with more traditional cases which held that intentionality was a bar as a matter of law, even when the prisoner was intoxicated.10 And the law established by Kanayurak and Wilson was and is consistent with the analogous doctrine that although a plaintiff's consent to an injury will bar recovery, the consent will be ineffective if it is the product of intoxication or other mental infirmity that incapacitates the plaintiff from giving effective consent.11
Likewise, there is no inconsistency between the intentionality rule, when considered with the ineapacity-based exception to the rule, and recognition of a jailer's duty to exercise reasonable care to prevent prisoners from harming themselves. Like consent, intentionality, including the absence of an incapacity, is an affirmative defense that must be proven by the defendant.12 Thus it is a plea in avoidance like other affirmative defenses, and does not signify that the underlying duty does not exist. Further, as a practical matter, the underlying protective duty cannot be freely ignored by prison employees, for the risk that the defense cannot be established will often be present. Finally, the custodial incapacity exception recognizes that the relationship between a jailer and a prisoner imposes a special duty of care, as the jailer can be responsible for the suicide of an incapacitated prisoner even if he is not also responsible for bringing about the incapacity itself.13
The intentionality rule is both sound and deeply rooted in our law.14 If a pedestrian intending to kill himself steps into the path of a car which is exceeding the speed limit can his representatives recover from the car's driver? The answer in my opinion should be "no," even though the driver had a duty of care to pedestrians, violated that duty by speeding, and his conduct may have been a cause of the death.15 Since the pedestrian intended to kill himself he should bear the whole responsibility for it even though the negligence of another may also have had a causal role.
I do not believe that prisoners should be regarded in tort law as having lost the capacity to act intentionally concerning self-harm *480simply because they are incarcerated. 'To be sure, some prisoners, such as those who are recently jailed and intoxicated, present a strong case for the incapacity exception to the intentionality rule. But others do not. People in prison may choose suicide after cool deliberation for a wide variety of reasons that are in no sense unique to their incarceration. Long-term illness might be one example, an effort to collect insurance for one's family may be another. In such cases the intentionality rule should operate just as it should in the example of the pedestrian who chooses death by walking in front of a speeding car. It is, or was, the function of the incapacity exception established by our case law to separate cases that are eligible to receive a recovery from those that should be barred.16
The alternative ground for overruling precedent, that changed conditions have made the rule of law in question no longer sound, also is not satisfied in the present case. Both Kanayurak and Wilson were tried and decided after comparative fault was established in Alaska.17 Conceivably, the inclusion of intentional conduct within the definition of "fault" by the 1997 amendment to the apportionment statute might be a changed condition of relevance.18 But this case accrued in 1996 and the statute explicitly does not apply to cases accruing before August 7, 1997.19 Moreover, the statute excepts assumption of risk based on "enforceable express consent." Since an express consent to injury and intentional self-injury are similar and the former is still a bar to recovery, it may be that claims based on intentional self-injury are also meant to be barred.20
Prisoners do not necessarily check their volitional capacity at the prison gate. Some but not all prisoners who attempt suicide should be relieved of personal responsibility for their actions. Kanayurak and Wilson provide a framework for separating those who should not be held responsible from those who should be. Today's opinion abandons this framework and adopts a rule which holds that no prisoner is barred by the intentionality rule from recovery for self-harm or destruction. I am not convinced that Kanay-uwrak and Wilson were wrongly decided or that they have become unsound because of changed conditions. Because the instructions under review were consistent with Ka-nayuralk and Wilson I believe the judgment should be affirmed.
. See Falkenstein v. City of Bismarck, 268 N.W.2d 787, 790 (N.D.1978) ("In most situations a death by suicide is not an actionable event because, even though there may have been tortious conduct preceding the suicide, the suicide is ordinarily considered as an intentional act and not the result of the tort. This relieves the original actor of liability."); Lucas v. City of Long Beach, 60 Cal.App.3d 341, 131 Cal.Rptr. 470, 474 (1976) (''The general rule is that a jailer is not liable to a prisoner in his keeping for injuries resulting from the prisoner's own intentional conduct.").
. See Restatement (Second) of Torts § 892 (1979); see also Victor E. Schwartz, Comparative Negligence § 5.4(c) (3d ed. 1994) ("[Slince consent cancels the wrongful element of a defendant's intentional tort, a fortiori it would also do so with regard to negligent conduct.").
. See, eg., Halko v. New Jersey Transit Rail Operations, Inc., 677 F.Supp. 135, 142 (S.D.N.Y.1987); Restatement (Second) of Torts § 455 (1965).
. 677 P.2d 893 (Alaska 1984).
. 627 P.2d 623 (Alaska 1981).
. 35 Ill. 703, 342 N.E.2d 468, 474 (1976); see also City of Belen v. Harrell, 93 N.M. 601, 603 P.2d 711, 714 (1979) (holding jury question presented as to whether prisoner who committed suicide had the "capacity to exercise reasonable care ...," because there was evidence that prisoner's reasoning was impaired and his actions were governed by impulses).
. Wilson, 627 P.2d at 631; see Kanayurak, 677 P.2d at 898.
. State v. Fremgen, 914 P.2d 1244, 1245 (Alaska 1996).
. See, eg., Dezort, 342 N.E.2d at 474; City of Belen, 603 P.2d at 714.
. See, eg., Lucas v. City of Long Beach, 60 Cal.App.3d 341, 131 Cal.Rptr. 470 (1976).
. See Restatement (Second) of Torts § 892A, cmt. 2 (1979).
. See Hager v. Tire Recyclers, Inc., 136 Or.App. 439, 901 P.2d 948, 950-51 (1995) (consent is an affirmative defense). Judge Esch recognized this in the present case for he instructed that the burden was on the state to prove that Joseph died as a result of his intentional actions.
. Cf. Restatement (Second) of Torts § 455 (1965) (explaining that defendant is ordinarily responsible for self-injury committed during delirium or insanity only if also responsible for bringing about the delirium or insanity).
. See William L. Prosser, Handbook of the Law of Torts § 18, at 101 (4th ed. 1971) ("It is a fundamental principle of the common law that volenti non fit injuria-to one who is willing, no wrong is done. The attitude of the courts has not, in general, been one of paternalism.").
. This example is taken from Schwartz, supra note 2, § 5.4(c), at 128 ("For example, if a plaintiff knowingly and voluntarily walks in front of the defendant's speeding car, he is deemed to have consented to the injury he receives, no comparison is made and his claim is barred."). Accord Daniell v. Ford Motor Co., 581 F.Supp. 728, 729 (D.N.M.1984) (holding, where a failed suicide sought to recover from an automobile manufacturer for negligently designing a trunk without an internal release mechanism, that "[the overriding factor barring plaintiff's recovery is that she intentionally sought to end her life by crawling into an automobile trunk from which she could not escape").
. Foreseeability as a winnowing principle is not a good substitute for intentionality with the incapacity exception. A suicide that is the product of unimpaired deliberation, and thus barred from a tort recovery, may be foreseeable (or any number of specific reasons, such as prior attempis or statements of the prisoner.
. See Kaatz v. State, 540 P.2d 1037 (Alaska 1975).
. As amended AS 09.17 900 provides:
In this chapter, "fault" includes acts or omissions that are in any measure negligent, reckless, or intentional toward the person or property of the actor or others, or that subject a person to strict tort liability. The term also includes breach of warranty, unreasonable assumption of risk not constituting an enforceable express consent, misuse of a product for which the defendant otherwise would be liable, and unreasonable failure to avoid an injury or to mitigate damages. Legal requirements of causal relation apply both to [ault as the basis for liability and to contributory fault.
. See ch. 26, § 55, SLA 1997.
. See Schwartz, supra note 2, at 128 ("The notion of volenti non fit injuria is so deeply entrenched in American law that it would be unlikely that a court would interpret the comparative negligence statute to abolish the consent defense.").