Marquette Law Review
The transferred-intent doctrine is a fiction that is no longer needed by American tort law, because of the replacement of contributory negligence with comparative negligence and development in the law of negligence since the creation of the transferred-intent doctrine. In the midst of decades of tort reform, the transferred-intent fiction has survived. Though total abolition is unlikely, its use and applicability should be greatly restricted given the existence of non-fictitious avenues for equal recovery.
The transferred-intent doctrine developed when no avenue for recovery existed for plaintiffs who were contributory negligent. Since the advent of comparative negligence, however, the need for the transferred-intent fiction to ensure deserving plaintiffs are awarded relief is no longer present. Thusly, the law of negligence effectively eclipses the applicability of the transferred-intent doctrine and affords an equal measure of relief. Though transferred intent is no longer necessary within the context of tort law, the fiction remains vital in criminal law which, unlike tort law, relies exclusively on mental culpability and not tort law’s principles of negligence.
It is unlikely that legislative tort reform will ever address the obsolescence of the transferred-intent diction, requiring the courts to decide the future of the doctrine. As it is not likely that the doctrine will be abolished in its entirety, the doctrine’s application should be greatly restricted.
Vincent R. Johnson, Transferred Intent in American Tort Law, 87 Marq. L. Rev. 903 (2004).