Rejecting the Logic of Confinement: Care Relationships and the Mentally Disabled under Tort Law

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"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.

I. TORT LAW AND THE MENTALLY DISABLED IN THE COMMUNITY

A. 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)

B. 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)

C. 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 that the blind man must be allowed to live in the community to have a "decent life," courts relying upon the logic of compensation have not shown the same concern for the mentally disabled. For the mentally disabled, such segregation is positively encouraged.

The Kansas Supreme Court noted this connection between the rationales of compensation and confinement:

   If his mental disorder makes him dependent, and at the same time prompts
   him to commit injuries, there seems to be no greater reason for imposing
   upon the neighbors or the public one set of these consequences, rather than
   the other; no more propriety or justice in making others bear the losses
   resulting from his unreasoning fury, when it is spent upon them or their
   property, than there would be in calling upon them to pay the expense of
   his confinement in an asylum, when his own estate is ample for the
   purpose.(28)

Commentators have criticized this "one of two innocents," or compensation, rationale as nothing more than a statement of strict liability,(29) and have rejected it for perpetuating injustice.(30) The compensation rationale also does not reach outside the confines of the tort system. It fails to reflect the possibility that a non-tort social insurance regime could compensate victims for their injuries.

2. The Evidence/Fakery Rationale

Courts have articulated a second rationale in favor of an objective standard, suggesting that such a rule avoids difficult evidentiary problems in verifying the existence and extent of a person's mental disability.(31) Critics of this rationale have suggested that courts fail to take into account the stigma attached to raising a defense of mental disability, and that this stigma reduces the incentive to fake mental disability.(32)

The evidence/fakery rationale takes into account the concern that, for reasons of administrative feasibility, courts should not become entangled in factually complex and subjective analyses of mental disability. Rejecting the defense outright allows courts to avoid a costly and time-consuming inquiry into an individual defendant's disability.(33) However, this concern is inconsistent with judicial analysis in contracts and criminal law in which courts frequently engage in complex assessments of the mental states of parties.(34) Determinations of mental competence in "guardianship, commitment, testamentary capacity, and numerous other areas call upon triers of fact to decide whether an individual's mental condition warrants [different treatment]...."(35) Such determinations have proceeded without undue strain on the courts. Concern about the difficulty of assessing this evidence is overstated in light of the factual determinations courts make even in tort law, as courts considering the contributory negligence of mentally disabled plaintiffs tend to hold such plaintiffs to a subjective standard.(36)

The evidence and confinement rationales are inherently interrelated as well. Courts, however, have not always noted this relationship. Prior confinement can constitute sufficient evidence of mental incapacity to allay a court's concerns about whether a defendant is "faking it."(37) However, in cases in which an institutionalized person has committed a tort outside the institution against a stranger, courts have nevertheless held the defendant to an objective standard.(38)

3. The Confinement Rationale, or the "Logic of Confinement"

While some commentators have suggested that the compensation and evidence/fakery rationales motivate the use of an objective standard, this Note argues that reliance upon a preference for confinement and segregation of the mentally disabled--termed here the "logic of confinement"--has begun to play an equally, if not more, important role. Courts have articulated a logic of confinement by stating that "public policy requires the enforcement of such liability in order that relatives of the insane person shall be led to restrain him."(39) The American Law Institute reflected a similar attitude in its comments following section 283B of the Restatement (Second), which state that "if mental defectives are to live in the world they should pay for the damage they do"(40) and note that "their liability will mean that those who have charge of them or their estates will be stimulated to look after them, keep them in order, and see that they do not do harm."(41)

The desire to encourage individuals to confine their mentally disabled relatives, and to force the mentally disabled to pay for the damage they cause, suggests a belief that so-called "mental defectives" should properly be segregated from the general community. One text stated explicitly:

   "[A psychiatrist's] secondary function is to protect society from the
   disturbances which are caused by the highly anti-social types of mental
   disorder. This function is fulfilled by seeing that individuals so
   afflicted are removed from society and placed in institutions where their
   psychopathic behavior will not interfere with the lives of others. It is a
   function similar to quarantining...."(42)

If they live in the community, the law must impose additional burdens upon them.

Over the years, both judicial and societal opinions have reflected a fear of the mentally disabled and a preference for their institutionalization. The mentally disabled have been considered witches or associates of the devil.(43) Justice Marshall's concurrence in City of Cleburne v. Cleburne Living Center(44) recognized this legacy of negative attitudes:

   [T]he mentally retarded have been subject to a "lengthy and tragic history"
   ... of segregation and discrimination that can only be called grotesque....
   Fueled by the rising tide of Social Darwinism, the "science" of eugenics,
   and the extreme xenophobia of those years, leading medical authorities
   began to portray the "feebleminded" as a "menace to society and
   civilization ... responsible in a large degree for many, if not all, of our
   social problems." A regime of state-mandated segregation and degradation
   soon emerged that in its virulence and bigotry rivaled, and indeed
   paralleled, the worst excesses of Jim Crow. Massive custodial …