Academic journal article Defense Counsel Journal

Capacity-Based, Sliding Scale Rule

Academic journal article Defense Counsel Journal

Capacity-Based, Sliding Scale Rule

Article excerpt

The evolving public policy arguments for applying a capacity-based, sliding scale fault rule is discussed at length by the New Jersey Supreme Court in Cowan v. Doering, 545 A.2d 163 (1988). The court reviewed the issue of whether comparative negligence is a defense for health care providers in a medical malpractice action where a patient, who is being treated following a first suicide attempt, jumps from her hospital room window on the same day as that first attempt.

The court first considered the broad issue of whether a mentally disturbed plaintiff can be contributorily negligent for his conduct. It concluded that a mentally disturbed plaintiff is not necessarily an incompetent plaintiff incapable of exercising reasonable care. It adopted a subjective, capacity-based or "flexible reduced" standard of care, which provides that the mentally disturbed plaintiff is held "responsible for the consequences of conduct that is unreasonable in light of the plaintiff's capacity."

The court then considered whether a capacity-based standard of care was appropriate to the underlying facts in Cowan. …

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