Weissmann, J.
After thousands of golf balls from a neighboring driving range landed on Mitchell Schultz’s property, the trial court found the range liable for trespass. But because Schultz acquired his property knowing that golf balls regularly landed on it, the court assigned him 95% fault, meaning he could not recover damages. Schultz appeals, arguing that comparative fault does not reduce liability for intentional torts and, therefore, the trial court erred. We agree. Liability for an intentional tort turns on the tortfeasor’s deliberate choice to commit the act. That intent cannot be reduced to a percentage of fault. We reverse and remand.
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According to Sandy Pines, the Indiana Comparative Fault Act applies to intentional conduct and thus must be read to apply to intentional torts. Schultz agrees that the Act generally applies to intentional torts but claims that the comparative fault analysis described therein cannot be used to allocate fault for intentional torts like trespass. He relies solely on Coffman v. Rohrman, 811 N.E.2d 868, 872 (Ind. Ct. App. 2004), and Becker v. Fisher, 852 N.E.2d 46, 49 (Ind. Ct. App. 2006).
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Trespass is an intentional tort. See Garner v. Kovalak, 817 N.E.2d 311, 313-14 (Ind. Ct. App. 2004). Intentional torts are qualitatively different from torts based in negligence…
Another important distinction between these two types of torts lies in the relationship between the defendant’s conduct and the resulting harm. In negligent torts, the tortfeasor’s conduct (failure to exercise reasonable care) and the injury that it causes are two distinct elements. In other words, merely failing to exercise reasonable care is not the completed tort—that conduct must cause some injury. This distinction does not exist in intentional torts; an intentional tortfeasor’s conduct itself constitutes the injury. For instance, the unauthorized entry onto land is itself the invasion of property rights that constitutes the intentional tort of trespass.
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The Comparative Fault Act’s core operative provisions—Ind. Code §§ 34-51-2-5 and -6—confirm that its system is built around “relative degrees of causation attributable among the responsible actors.” Santelli v. Rahmatullah, 993 N.E.2d 167, 179 (Ind. 2013). Section 5 reduces a claimant’s damages “in proportion to the claimant’s contributory fault,” and Section 6 bars recovery if the claimant’s fault “is greater than the fault of all persons” who contributed to the injury. Both provisions presuppose that the factfinder can assign percentages of blame along a shared continuum of behavior that caused a harm or injury.
Intentional torts do not fit that model. Liability for an intentional tort turns on a single question: whether the tortfeasor intentionally committed the wrongful act. Intentional conduct cannot meaningfully be parsed into percentage terms— there is no such thing as acting 20% intentionally. Additionally, because an intentional tortfeasor’s conduct itself wholly constitutes the injury, this leaves no others (besides joint intentional tortfeasors) to contribute to the harm. [Footnote omitted.] Because the Act works by measuring degrees of fault of persons causing an injury, its fault-allocation provisions are conceptually incompatible with the nature of intentional torts.
Therefore, the conclusion reached in Coffman and Becker—that the comparative fault analysis does not apply to intentional torts—is grounded in sound logic. It also fits comfortably within the framework described in Deible. Comparative fault concerns who caused the injury and allocates responsibility among those whose conduct contributed to the harm. Mitigation of damages, by contrast, concerns the victim’s conduct after the tort occurs and affects only the amount of damages the victim may recover, not liability for the tort itself. Deible, 691 N.E.2d at 1316. This means a victim’s post-tort decisions—like failing to limit the extent of harm—may reduce damages, but those later choices do not reduce or shift liability for the tort. See Becker, 852 N.E.2d at 49.
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Once the trial court found Sandy Pines liable for the intentional tort of trespass, Sandy Pines should have remained 100% liable for the tort. See Becker, 852 N.E.2d at 49. The appropriate inquiry at that point was whether Schultz failed to mitigate his damages—an analysis distinct from the allocation of fault for causing the trespass.
Sandy Pines claims the trial court’s error was harmless, as the court “only applied the correct law in the wrong place.” Appellee’s Br., p. 12. According to Sandy Pines, the “outcome would be the same” had the court applied the law correctly. Id. But again, the allocation of fault is a process separate from the mitigation of damages. Deible, 691 N.E.2d at 1316. Mitigation of damages addresses a plaintiff’s post-tort conduct, while the allocation of fault focuses on the plaintiff’s conduct before the tort. See Kocher v. Getz, 824 N.E.2d 671, 674 (Ind. 2004). Because these inquiries examine two distinct time periods—pre-tort and post-tort—we cannot agree with Sandy Pines that the outcome was unaffected by the trial court’s error.
Because Sandy Pines was found liable for the intentional tort of trespass, it could not reduce its liability through comparative fault. Schultz’s damages can only be reduced based on his failure to mitigate his damages. As the court did not hear evidence or argument on Schultz’s damages or mitigation thereof, those inquiries should be addressed on remand. We therefore reverse and remand for subsequent proceedings.
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Conclusion
We dismiss Sandy Pines’s cross-appeal. As to Schultz’s claim on comparative fault, we reaffirm that in cases of intentional torts, the plaintiff cannot be allocated fault, and the defendant remains 100% liable for the intentional tort. This approach is consistent with Indiana’s Comparative Fault Act and body of tort law. Therefore, the trial court erred by applying comparative fault to reduce Sandy Pines’s liability for the intentional tort of trespass. We reverse and remand for proceedings consistent with this opinion.
Bailey, J., and Brown, J., concur.