Tort Liability of the Mentally Ill in Negligence Actions
1983; The Yale Law Journal Company; Volume: 93; Issue: 1 Linguagem: Inglês
10.2307/796248
ISSN1939-8611
Autores Tópico(s)Law, Economics, and Judicial Systems
ResumoTort Liability of the Mentally Ill in Negligence ActionsCourts have generally held the mentally ill defendant to the same objective standard of tort liability as an average defendant. 1In contrast, courts have often relied on a subjective standard to find mentally ill plaintiffs incapable of contributory negligence.In the past two decades, critics have argued that in light of dramatic changes in society's conceptualization and treatment of the mentally ill, 2 the objective standard is no longer appropriate and courts should apply a subjective standard to both mentally ill defendants and mentally ill plaintiffs.The consensus of recent opinion 1. Tort liability for negligence is determined by employing a "reasonable person" standard.Negligence is generally defined as the failure "to do something which a reasonable man, guided by those ordinary considerations which ordinarily regulate human affairs, would do, or the doing of something which a reasonable and prudent man would not do."BLAcK's LAW DICTIONARY 930 (5th ed.1979).An objective standard makes no allowances for a particular individual's capacities or idiosyncracies.Under an objective standard, a mentally ill person is liable for any tort for which a "normal" person would be held liable.Under a subjective standard, however, a person's conduct is judged in light of that particular individual's qualities and abilities rather than those possessed by the "reasonable person."A subjective standard would take into account a person's mental illness and hold the person to a less stringent standard of tort liability than that for a normal person.If a person's mental illness were sufficiently severe to prevent him from exercising "reasonable care," then he would not be found liable for negligence in cases where the average person would be held liable.Thus, the subjective standard may be said to afford, in practice, a defense or type of immunity to tort liability.See generally Seavey, Negligence-Subjective or Objective?, 41 HARv.L. REv. 1 (1927) (discussing merits of objective versus subjective standards of negligence).2. The reforms in mental health law over the past two decades have generated substantial litigation and legislation governing the rights of the mentally ill.The use of involuntary commitment has been of particular concern.See, e.g., O'Connor v. Donaldson, 422 U.S. 563, 575 (1975) (no constitutional basis for involuntary confinement of the mentally ill if they are not dangerous and can live safely in the community); Jackson v. Indiana, 406 U.S. 715 (1972) (defining constitutional limits on involuntary civil commitment of persons found incompetent to stand trial).See generally Developments in the Law-Civil Commitment of the Mentally Ill, 87 HARv.L. REv.1190 (1974) (review of case law and statutory developments); Note, Procedural Safeguards for Periodic Review: A New Commitment to Mental Patients' Rights, 88 YALE L.J. 850 (1979) (discussing procedural protections for limiting the duration of involuntary hospitalization).3. See Curran, Tort Liability of the Mentally Ill and Mentally Deficient, 21 OHIo ST.L.J. 52,74 (1960) (critique of tort law based on "analysis of modern psychiatric classifications of mental illness," asserting need to base tort liability on factors related to specific mental illnesses); Ellis, Tort Responsibility of Mentally Disabled Persons, 4 AM.B. FOUND.RESEARCH J. 1079, 1107-09 (1981) (asserting need to adopt either subjective standard or new defense of objective standard since policy rationales supporting current tort standards for mentally ill have become questionable in light of recent scientific and legal developments); Seidelson, Reasonable Expectations and Subjective Standards in Negligence Law: The Minor, the Mentally Impaired, and the Mentally Incompetent, 50 GEO.WASH.L. REV.17, 38-44 (1981) (concluding that tort standard for mentally ill is "almost facially unfathomable" and arguing for adoption of subjective standard); Comment, The Tort Liability of Insane Persons for Negligence: A Critique, 39 TENN.L. Rav.705, 723 (1972) (common law position should be rejected because of unsound policy grounds and replaced with "disorientation" rule).But see Alexander & Szasz, Mental Illness as an Excuse for Civil Wrongs, 43 NOTRE DAME LAW.24 (1967) (objective standard appropriate since mental illness a "myth").4. "Primary" negligence occurs when the mentally ill person is the tortfeasor."Contributory" negligence occurs when the mentally ill plaintiff negligently contributes to his own injuries.5. This Note addresses only the tort liability of the mentally ill, focusing on the chronically mentally ill-those persons who may live in the community but who throughout their lives will require intermittent or continual medication, psychotherapy, or brief hospitalization.The Note does not examine cases involving the mentally retarded or persons suffering from organic brain dysfunctions.The case law concerning tort liability of the mentally ill often makes no distinction between intentional and negligent torts.In some cases, however, the mentally ill have not been held liable for torts reqqiring malicious intent, such as defamation, and courts generally disallow punitive damages against mentally ill defendants.For a thorough review of the case law broken down by type of tort, see Curran, supra note 3, at 54-63.6. See Hornblower, Insanity and the Law of Negligence, 5 COLUm.L. REv.278, 278 (1905) ("It is a singular fact and one not altogether creditable to our jurisprudence, . . .that in this Twentieth Century, the question of the liability of an insane person for tortious conduct. . .should remain to a large extent an open question.").7. For an historical review of case authority and statements of the law by early textwriters, see Bohlen, Liability in Tort of Infants and Insane Persons, 23 Mscs.L. REv. 9 (1924); Hornblower, supra note 6.8. 143 N.
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