Schumann v. Crofoot ( 1979 )

SCHWAB, C. J.,

specially concurring.

I agree with the majority opinion except for that portion which states that mental illness can be a defense to a claim for compensatory damages for injury resulting from fraud, although not to a claim for compensatory damages for injury resulting from negligence. Negligence presupposes an unlawful state of mind. The rationale of Restatement (Second) of Torts, § 283B (1965), with regard to liability for negligence applies with equal force to liability for fraud:

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"3. The feeling that if mental defectives are to live in the world they should pay for the damage they do, and that it is better that their wealth, if any, should be used to compensate innocent victims than that it should remain in their hands.”

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Why should it make a difference if a mental defective injures an innocent victim by driving an automobile without brakes rather than by misrepresenting to an innocent victim the condition of an automobile’s brakes?

Punishment, not compensation, is the primary basis of punitive damages, and as to such damages I agree with the reasoning of the majority.