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

Abstract

Contemporary tort doctrine creates perverse incentives to confine individuals with mental disabilities in institutions. Courts have declined to impose a duty of care on defendants with mental disabilities who reside in institutions and injure their caregivers, but hold defendants with mental disabilities who reside in the community to an objective, reasonable person standard. In drawing this distinction based on the defendant's confinement, courts have imported outdated reasoning that an objective standard will provide incentives to relatives to institutionalize such individuals to prevent injury to others. This 'logic of confinement' is at odds with contemporary civil rights law's preference for integration in the least restrictive environment. In assigning liability, courts should focus solely upon the nature of the relationship between the parties, their knowledge and expectations, and their relative abilities to prevent harm.

Keywords: torts, disability, mental, confinement, least restrictive environment, duty of care