Rejecting the logic of confinement: care relationships and the mentally disabled under tort law.

• Author: Light, Sarah

"A psychiatrist of long and fruitful experience once remarked that the chief difference between the normal man and the one who was mentally sick, was that the latter was inside the walls of a hospital and the former was not."(1)

Contemporary tort law articulates a norm in favor of confinement for the mentally disabled.(2) It encourages their institutionalization and discourages their reintegration into the community.(3) This Note argues that a rationale for holding mentally disabled individuals liable for their torts that relies upon a preference for confinement is misplaced, because it creates an incentive to confine a mentally disabled individual even when this might not be in the individual's best interest. Regardless of economic incentives, however, reliance upon a confinement rationale reflects an outmoded understanding of the proper place of the mentally disabled in contemporary American society. This rationale should be reconsidered by courts, commentators, and advocates. American civil rights law has shifted radically in its treatment of the mentally disabled since the early part of this century, while tort law has stagnated in this regard. This Note argues that when considering the negligence liability of the mentally disabled, courts should not focus upon "geography"--that is, upon whether a defendant is confined. Rather, courts should focus solely upon the nature of the relationship between the parties, their knowledge and expectations, and their relative abilities to prevent harm.(4)

This Note is divided into five Parts. Part I discusses how tort law has traditionally held mentally disabled people to an objective "reasonable person" standard for the torts they commit within the community.(5) One reason courts have given for imposing this liability is that it provides an incentive for family members to confine their mentally disabled relatives, in order to prevent harm to innocent strangers and to society as a whole.(6) Part II demonstrates that in the only four reported tort cases before 1991 to address the mentally disabled in care relationships, courts failed to recognize the importance of this unique relationship. This Part examines why courts continued to hold mentally disabled persons liable for their torts, even against a caregiver, and even when family members had taken steps to obtain care for their mentally disabled relatives, either by placing them in institutions or by hiring nurses to provide at-home care.(7) Coupled with the small number of cases involving institutionalized defendants before 1991, this fact may have led commentators to downplay the importance of the logic of confinement as a rationale for imposing liability.

In a line of cases arising since 1991, however, the confinement rationale has become increasingly important. Part III addresses a line of cases creating a new exception to the duty owed by the mentally disabled. In these cases, a caregiver has sued a mentally disabled defendant under his or her care for negligent or intentional torts. In these cases, courts have carved out a new exception to the general rule imposing liability upon the mentally disabled.(8) Courts have uniformly held that a mentally incompetent defendant living in an institution owes no duty of care to a paid caregiver because imposing liability would provide no further incentives to confine the defendant. Some of these decisions have drawn the exception narrowly, so that future courts might apply it only in cases in which defendants reside in institutions. This focus on the logic of confinement, coupled with fact patterns involving institutionalized defendants, rather than mentally disabled defendants in home-care settings, reinforces the notion that the mentally disabled should properly reside within institutions.

Part IV argues that the no-duty rule adopted in these post-1991 cases is correct, but not because of the logic of confinement. A rule that focuses on the care relationship, rather than on the defendant's geography, would encourage a mentally disabled person to seek appropriate professional care, rather than confinement that may not be appropriate. This Part suggests a test for analyzing whether a duty of care should exist in a particular relationship. Finally, Part V argues that a no-duty analysis supports adopting a non-tort system to compensate injured caregivers. The no-duty rule implicates a tension between the need to avoid a logic of confinement and the desire to ensure compensation for injured caregivers. Such a system is necessary to ensure that qualified caregivers--regardless of whether they are employed by large state institutions or work as at-home nurses--continue to provide care for the mentally disabled without fear that an employment-related injury will go uncompensated. Such a system would ensure that trained professionals continue to work on behalf of the mentally disabled in the least restrictive environment, and that the mentally disabled seek appropriate medical treatment without fear of exposing themselves to tort liability.

1. TORT LAW AND THE MENTALLY DISABLED IN THE COMMUNITY

   1. The Traditional Rule

      American tort law has traditionally declared that mental disability is no defense to negligent or intentional torts by holding the mentally disabled to an objective, reasonable person standard.(9) Most scholars trace this rule back to dicta in the English case of Weaver v. Ward,(10) in which the court wrote: "[I]f a lunatick hurt a man, he shall be answerable in trespass: and therefore no man shall be excused of a trespass ... except it may be judged utterly without his fault."(11) In a second English case, Cross v. Andrews,(12) the court upheld a suit against an innkeeper who failed to safeguard the property of his guests: "And to say he is of non sane memory, it lieth not in him to disable himself, no more than in debt upon an obligation."(13) Though some, such as Oliver Wendell Holmes, Jr., ardently supported this traditional rule and its importation into American common law,(14) others criticized it for effectively imposing liability without fault.(15)

   2. The Evolution of the Restatement

      The Restatement of Torts has evolved over time to reflect the traditional rule. The first Restatement of Torts, published in 1934, implied that insane persons had a defense to negligence actions: "Unless the actor is a child or an insane person, the standard of conduct to which he must conform to avoid being negligent is that of a reasonable man under like circumstances."(16) However, the American Law Institute created a tension in its position in the caveat following the section, which stated: "The Institution expresses no opinion as to whether insane persons are required to conform to the standard of behavior which society demands of sane persons for the protection of the interests of others."(17) An ambiguity remained as to the proper standard for assessing behavior.

      The Restatement (Second) resolved this ambiguity in favor of a rule holding people with a mental disability to an objective, reasonable person standard by deleting the earlier exception. The revised position stated: "Unless the actor is a child, his insanity or other mental deficiency does not relieve the actor from liability for conduct which does not conform to the standard of a reasonable man under like circumstances."(18) By contrast, the Restatement (Second) held those with physical disabilities to the limited subjective standard of a "reasonable man under like disability."(19)

      Numerous twentieth-century scholars have criticized the prevailing objective standard for holding mentally incompetent people liable without fault in a tort regime that generally premises recovery on fault,(20) for unjustifiably drawing distinctions between mental and physical incapacity,(21) and for failing to make sufficiently detailed factual inquiries into the nature of the defendant's mental incapacity.(22) The majority of scholars writing in this area have recommended that courts adopt a subjective standard to recognize unique factual distinctions among defendants and their differential capacities to comprehend and control their actions.(23)

   3. Policy Rationales Behind the Traditional Rule

      In applying the traditional rule, courts have articulated several policy reasons for holding mentally disabled defendants to an objective, reasonable person standard. They have engaged in broad and policy-oriented analysis, rather than detailed factual inquiries about the defendants' mental disabilities. Though these underlying rationales are interconnected, this Section addresses each one--compensation, evidence/fakery, and confinement--in turn.

      1. One of Two Innocents: The Compensation Rationale

         Courts have held that "where one of two innocent persons must suffer a loss, it should be borne by the one who occasioned it."(24) This rationale articulates a straightforward philosophy of compensation. If the tort regime should properly focus on compensation, rather than blameworthiness, then applying an objective standard might seem correct.(25) Several scholars have suggested that the imposition of liability upon a mentally disabled defendant under these circumstances provides evidence that moral notions of fault are not the underlying basis of the tort regime.(26) But the compensation rationale affects incentives to seek confinement. Holding someone to an objective standard he cannot meet might force him out of the community and away from contacts with others in order to prevent injury. As one scholar has noted, "So where one is blind, unless we would drive blind men from all contacts with others, we cannot require him to act as though he could see.... The blind or deaf man must use the streets if he is to have a decent life...."(27) Courts have acknowledged that using an objective standard for the mentally disabled may drive them from contacts with others, just as such a standard would for the blind. But in contrast to their concern...