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

37 Pages Posted: 6 Aug 2012 Last revised: 25 Feb 2013

See all articles by Sarah E. Light

Sarah E. Light

University of Pennsylvania, The Wharton School - Legal Studies & Business Ethics Department

Date Written: 1999

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 In drawing this distinction based on the defendant's confinement, courts have imported outdated reasoning that an objective standard will provide incentives to relatives to institutionalize such individuals to prevent injury to others.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

Suggested Citation

Light, Sarah E., Rejecting the Logic of Confinement: Care Relationships and the Mentally Disabled Under Tort Law (1999). Yale Law Journal, Vol. 109, No. 381, 1999, Brooklyn Law School, Legal Studies Paper No. 327, Available at SSRN: https://ssrn.com/abstract=2125280

Sarah E. Light (Contact Author)

University of Pennsylvania, The Wharton School - Legal Studies & Business Ethics Department ( email )

3730 Walnut Street
Suite 600
Philadelphia, PA 19104-6365
United States

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