Sunday, October 09, 2005

Tort of the Week: The Reasonable Person, Reasonable Child, Reasonable Insane Person...

OK, I combed my torts reading this week for an amusing tort, but...none. This week's reading is about the "reasonably prudent person" standard for negligence. (Nutshell: If you're acting at least as carefully as the "reasonably prudent person" would under the same circumstances, you're not negligent.)

So, while I was in the kitchen baking banana bread, I was feeling all guilty about my lack of a good tort this week, and thinking about the reading, I did come up with this interesting object for discussion:

There are limited exceptions to the "reasonably prudent person" standard. For instance, children are generally not expected to act as the RPP would. (However, when operating dangerous machinery, children may be held to the adult RPP.) There are no exceptions for the exceptionally clumsy or scatterbrained. And generally, there are no RPP exceptions for the mentally ill.

From Section 283B of the 2nd Restatement of Torts (1965):
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.

The Restatement theorizes that the mentally ill are not exempt from the reasonable person standard in part because of "The belief 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 no harm."

Now, two things:
  1. Wouldn't the above also argue for holding children to the RPP? I suppose the rationale is that since children are "the future and whatever" (as a classmate of mine put it last week), we have a broader social interest in allowing them more freedom to err.
  2. Doesn't the idea that someone has "charge of" the mentally ill seem kind of quaint in these days of wholesale deinstitutionalization?


At 1:53 PM, October 10, 2005, Anonymous mike said...

1)Yes, it seems that children should have no exemption for the same reason -- that those who have charge of them will exert extra caution. Yet it seems unusual when parents are held responsible -- fiscally, for example -- when a child causes damage. No?

2) Does not seem quaint. Talk someday to parents who have full-time care of a child who has severe mental disabilities, for example.

At 6:10 PM, October 11, 2005, Blogger ohplease said...

Yes, we generally choose NOT to hold parents responsible for damage caused by their children.

My sense of quaintness is probably informed by my daily walk down the Ave, with its large population of the free-ranging mentally ill.

But my point is more this:
The Restatement says that the policy basis of holding the mentally ill and mentally disabled to the RPP is that it provides an incentive for those who "have charge of them" to "see that they do no harm."

That policy argument seems to me to be deeply irrelevant when applied to free-ranging, presumably assetless, mentally ill people who have no family or institutional support.

AND, in the case where someone's family does choose to take care of them, holding the mentally ill/disabled person to the RPP rewards that caring family with an increased liability burden, thus punishing the kind of choices you would think we want to encourage.

Maybe I'll bring this up in class tomorrow.


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