Applying the Physical Disability Reasonable Person Standard Under Negligence Law to Persons With Autism

• Publication year: 2022

53 Creighton L. Rev. 211. APPLYING THE PHYSICAL DISABILITY REASONABLE PERSON STANDARD UNDER NEGLIGENCE LAW TO PERSONS WITH AUTISM

APPLYING THE PHYSICAL DISABILITY REASONABLE PERSON STANDARD UNDER NEGLIGENCE LAW TO PERSONS WITH AUTISM

-Jessica J. Patach '21

I. INTRODUCTION

Autism Spectrum Disorders ("ASDs") have been greatly misunderstood throughout history. ^[1] The physical disability reasonable person standard in negligence should apply to the physical symptoms that ASDs cause, rather than remaining in the past, when ASDs were considered only mental deficiencies. ^[2] While science has evolved to allow for more consistent and accurate diagnostic criteria, albeit still not perfect, the law has had difficulty keeping up with evolving scientific data. ^[3] Negligence law is mired in a time when people with ASDs were thought to be schizophrenic, psychopathic, and unintelligent. ^[4] However, it is now understood that persons with ASDs have varying levels of intelligence like non-autism spectrum disorder ("ASD") individuals. ^[5] Over time, medical studies have shown that ASDs manifest themselves through a variety of symptoms, many of which do not correlate to mental deficiencies or lack of intelligence. ^[6]

This Note will discuss the prevailing importance of changing how ASDs are viewed under the reasonable person standard in negligence law. ^[7] First, this Note will give an overview of negligence under the Second and Third Restatements of Torts ("the Restatements"). ^[8] Then, this Note will examine case law in which the reasonable person standard for negligence has been applied to mental deficiencies and physical disabilities. ^[9] Subsequently, this Note will provide an overview of ASDs through a discussion of the findings of various medical studies. ^[10] Furthermore, this Note will discuss different symptoms that come with disabilities the courts have identified, or would likely identify, as physical disabilities. ^[11] Finally, this Note will argue: (1) symptoms caused by ASDs are similar to symptoms present in physical disabilities that courts already recognize; (2) courts should apply a physical disability reasonable person standard when these symptoms give rise to a negligence claim; and (3) doing so will not underminepolicy considerations. ^[12]

II. BACKGROUND

A. THE SECOND AND THIRD RESTATEMENTS OF TORTS ON NEGLIGENCE AND THE REASONABLE PERSON STANDARD

An individual is negligent when he or she deviates from the standard of care required to protect others in society. ^[13] Currently and historically, the reasonable person standard looks to whether an individual exercises a reasonable level of care in instances when the individual's own actions create a greater level of risk for physical harm than normal. ^[14] Whether or not an individual acts as a reasonable person must be judged from an objective rather than a subjective standard. ^[15] Courts should view the objective reasonable person as having qualities a community would require in an individual to protect society's interest in others. ^[16] Contributory negligence slightly alters the reasonable person standard; it requires the actor to have a reasonable level of prudence rather than requiring consideration in the protection of others. ^[17] Both the Second and Third Restatements note there must be some flexibility in allowing for varying circumstances of different individuals. ^[18]

Physical disabilities are one of the largest areas that have continuously been assessed for providing a variance to the reasonable person standard. ^[19] The reasonable person standard is still present in cases of physical disabilities but is modified to inquire how a person with that physical disability would have acted under like circumstances. ^[20] The hypothetical reasonable person should be identical to the actor, requiring physical disabilities to be looked at in a different light when determining the standard of care to which the reasonable person must conform. ^[21] When taking into account specific physical disabilities, the disability must be verifiable and must significantly impact the manner in which an individual can act. ^[22] For instance, while old age alone cannot be taken into account, due to uncertainty in the physical disabilities it will bring to each person, the physical disabilities that manifest in each person of age can be accounted for on a case-by-casebasis. ^[23]

Under negligence law, the reasonable person standard regarding mental deficiencies has not changed in more than four hundred years. ^[24] A person with a mental deficiency, in either a negligence action or a contributory negligence defense, is held to the same reasonable person standard of those without a physical disability or mental deficiency. ^[25] While the Restatements discuss mental deficiencies and mental disabilities as a whole, there is an implied focus on insanity or lack of intelligence. ^[26] The policy behind differentiating between physical disabilities and mental deficiencies is based on the underlying assumption that mental deficiencies are less certain and not as easily proven as physical disabilities. ^[27]

B. CASE LAW IN WHICH A MENTAL DEFICIENCY HAS BEEN FOUND

1. The Supreme Court of Wisconsin Classified Bipolar Disorder as a Mental Deficiency

In Jankee v. Clark County, ^[28] the Supreme Court of Wisconsin determined that a person suffering from bipolar disorder, also known as manic depression, will be held to the same objective reasonable person standard as those without a mental disability. ^[29] Emil and Mary Jankee sued Clark County ("the County") in the Circuit Court for Clark County, alleging that the County was negligent for the injuries Emil Jankee ("Jankee") received when trying to escape from the County Health Center because the County failed to supervise Jankee while he was in custody. ^[30] Jankee had been diagnosed with bipolar disorder. ^[31] He was admitted to the Clark County Health Care Center after an episode brought on by his bipolar disorder. ^[32] Jankee attempted to escape through a window in his room. ^[33] In the process, Jankee fell and was not discovered until several hours later. ^[34] The fall broke his back, resulting in his inability to stand on his feet for long periods of time, thus requiring his use of a wheelchair. ^[35] The circuit court granted summary judgment in favor of the County because Jankee was found contributorily negligent. ^[36] The Jankees appealed this decision to the Court of Appeals of Wisconsin; it reversed the circuit court's decision of contributory negligence because Jankee was incapable of controlling his conduct during the incident. ^[37] The appellate court maintained that Jankee's conduct should be viewed under a subjective reasonable person standard. ^[38]

The defendants appealed to the Supreme Court of Wisconsin, arguing that the subjective reasonable person standard was incorrectly applied to Jankee. ^[39] The Supreme Court of Wisconsin agreed and reversed the court of appeals' decision. ^[40] The court decided Jankee was required to conform to the ordinary reasonable person standard and found him contributorily negligent. ^[41] The court reasoned that when considering two innocent parties and the liability of a mentally disabled person, it is better to hold liable the person who caused the injury. ^[42] The court also considered the underlying policy for deinstitutionalizing the mentally disabled by requiring mentally disabled persons to conform to the standard of care and expectations of society. ^[43] The rationale behind deinstitutionalization was that it would provide for stronger societal integration of those with mental disabilities by encouraging mentally disabled persons to seek treatment. ^[44] The court ultimately decided because Jankee could have used medical treatment to modify and conform his conduct to that of a reasonable person without a mental disability, the Wisconsin courts would continue to uphold the objective reasonable person standard for negligence in regard to mental disabilities. ^[45]

2. The Supreme Court of Wisconsin Classified Cerebral Palsy, Intellectual Disability, and Autistic Tendencies as Mental Deficiencies

In Burch v. American Family Mutual Insurance Co., ^[46] the Supreme Court of Wisconsin certified that a person with cerebral palsy, an intellectual disability, and autistic tendencies must be held to the same reasonable person standard of care as a person without these disabilities. ^[47] Paul Burch ("Burch") filed suit against American Family Insurance in the Circuit Court for St. Croix County. ^[48] Burch was out with his fifteen-year-old daughter, Amy Burch, who had severe developmental disabilities and functioned at the level of a preschooler. ^[49] Burch turned off his truck, but he left his daughter in the truck with the keys in the ignition. ^[50] Once Burch exited the vehicle, his daughter started the ignition, causing the truck to roll backwards and injure her father. ^[51] The jury found Amy Burch had not been negligent but decided that Burch was negligent by leaving the keys in the truck. ^[52] Burch moved for a new trial, and the circuit court granted the motion. ^[53]

American Family Insurance appealed to the Court of Appeals of Wisconsin, contesting the circuit court's grant for a new trial. ^[54] The appellate court certified the case directly to the Supreme Court of Wisconsin. ^[55] The supreme court reversed the grant of...