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Columns   |    
Law & Psychiatry: Responsibility for Torts: Should the Courts Continue to Ignore Mental Illness?
Paul S. Appelbaum, M.D.
Psychiatric Services 2012; doi: 10.1176/appi.ps.20120p308
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Dr. Appelbaum, who is editor of this column, is the Elizabeth K. Dollard Professor of Psychiatry, Medicine and Law, Department of Psychiatry, Columbia University.

Send correspondence to Dr. Appelbaum at New York State Psychiatric Institute, 1051 Riverside Dr., Unit 122, New York, NY 10032 (e-mail: psa21@columbia.edu).

Copyright © 2012 by the American Psychiatric Association.

Abstract

Although courts routinely consider whether a criminal defendant's mental illness makes punishment unfair, the rules are very different for civil liability. When people with mental illness harm others, courts refuse to consider their mental states in determining civil liability. The justifications offered for this rule range from the difficulty of assessing the impact of mental illness on behavior to the desire to place the burden of loss on the person who caused the injury. Undeniably, though, mental disabilities are treated differently from physical impairments, and the law's resistance to change seems largely based on misunderstanding and prejudice against mental illness. (Psychiatric Services 63:308–310, 2012; doi: 10.1176/appi.ps.20120p308)

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Almost everyone is aware of the so-called “insanity defense,” which can negate responsibility for criminal behavior when illegal actions are associated with serious mental disorders (1). A common formulation of the legal rule is that defendants are not criminally responsible if, at the time of the crime, they lacked substantial capacity to appreciate the wrongfulness of their behavior or to conform their behavior to the requirements of the law (2). However, few people know that even the most severe mental disorders will not prevent imposition of civil liability for the very acts that are excused by the criminal law.

A graphic illustration of this dichotomy between the criminal and civil justice systems can be seen in Polmatier v. Russ, a Connecticut case from nearly a quarter-century ago that reflects the current rule (3). Norman Russ went to visit his in-laws with his two-month-old daughter. As Russ later described the events, he began to believe that his father-in-law, Arthur Polmatier, was a spy for the Communist Chinese, who intended to kill him and his daughter. Thinking that he was acting in self-defense, Russ began beating Polmatier on the head with a beer bottle. He then retrieved a box of ammunition and a rifle from elsewhere in the house and shot and killed his father-in-law. Several hours later, Russ, naked and crying, was found in the nearby woods with his infant daughter, who was wrapped in his bloody clothes.

At Russ' criminal trial, a psychiatrist testified that Russ was suffering from severe paranoid schizophrenia marked by delusions of persecution, grandeur, and influence along with auditory hallucinations. Given the link between his delusions and the offense, he was found not guilty by reason of insanity. However, when his mother-in-law brought suit against Russ on behalf of her husband's estate, the outcome was quite different. At trial, Polmatier's estate was awarded damages for his wrongful death at Russ' hands, a judgment upheld on appeal by the Connecticut Supreme Court. The court rejected Russ's claim that his mental condition should have been taken into account at the civil trial, citing the rule embodied in the authoritative Restatement (Second) of Torts: “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” (4).

Although Polmatier involved an intentional tort, the courts take the same approach in dealing with liability for cases of negligent behavior. A classic example is the Wisconsin Supreme Court decision in Breunig v. American Family Insurance Company, which dealt with a claim for damages by a truck driver against Erma Veith, who had driven her car into his rig (5). Veith explained that at the time of the accident she was sure that she could avoid the oncoming truck by emulating Batman and stepping on the accelerator to become airborne. Despite the diagnosis of “acute schizophrenic reaction” and her unquestionably delusional condition, Veith was found to have acted negligently and was held liable for the damages caused by the collision. Her appeal was later denied.

What would lead courts to apply such different standards in the criminal and civil contexts? A wide variety of justifications for ignoring mental disability when it comes to civil liability have been offered, but one commentator has suggested that such justifications may be grouped into four categories (6). One category, expressed in a number of judicial decisions, is concern about the courts' abilities to separate legitimate claims that a civil defendant's behavior was causally related to a mental disorder from malingering or other unwarranted attempts to deflect responsibility. These judges worry that the courts would assume an unmanageable burden were the current rule to change. A second justification offered for imposing liability in these cases is that it will incentivize the caretakers of people with mental disorders to watch them more carefully and thus reduce the risk they represent to other people. Here, arguably, tort law is being used in a preventive capacity.

In a third effort at justification, some courts, recognizing that decades of deinstitutionalization have meant that most people with serious mental illnesses live in the community, have claimed that holding people with mental disorders responsible for their intentional and negligent torts is helpful in encouraging their integration into the broader society. According to this line of argument, neighbors will more likely be reconciled to the presence of people with a mental illness if they know that anyone who is injured by such people's behavior can sue for compensation. Finally, many courts, perhaps a majority of those that have ruled on the question, have held that when an injury occurs, it is preferable for the burden to fall on the person who caused it rather than on an innocent victim, even if the perpetrator's behavior was driven by a mental disorder.

Over the past several decades, legal commentators have taken on each of these arguments with what appear to be persuasive refutations (68). For example, although courts claim to be concerned about the difficulty of judging the relationship between a mental disability and a tortious act, such determinations about the connection between mental impairment and behavior are made routinely by the criminal courts. Challenging issues about the mental state of individuals are also regularly adjudicated in cases involving, among others, contracts, wills, guardianships, and family law. Thus, the claim that the task is beyond the ken of the courts only when it comes to tort law rings hollow.

The notion that imposing liability will give caretakers an incentive to watch their mentally ill charges more closely—perhaps even having them institutionalized to prevent harm—harks back to an era when families were assumed to be responsible for their relatives with a mental illness and could compel their hospitalization. Today, most persons with mental illness would probably find the idea that they need a caretaker to be insulting, and familial responsibility, accordingly, is limited. Moreover, as numerous observers have noted, if the courts want to incentivize greater care by persons looking after people with mental illness, they should instead impose liability on the caretakers, which generally they have not done to date.

As for the notion that other members of the community will be more receptive to having persons with mental illness as neighbors if they can be held liable for their torts, the argument seems fairly far-fetched. Opposition to community placement of people with serious mental illnesses is based on a multiplicity of factors, some of them rooted more in emotion than in reason (9). But it seems unlikely that many people even consider whether they will be able to sue the typically impecunious residents of a group home before deciding whether to oppose opening such a facility down the street.

In the end, the only possibly reasonable justification for imposing tort liability on delusional people like Norman Russ, who believed that he was defending himself from his father-in-law, or Erma Veith, who thought her car could fly, might be the argument that it is better to place the burden of loss on the actor rather than the hapless victim. Yet, even this claim, which reflects an earlier epoch of tort law, belies the contemporary approach to almost all other tortious injuries. Although all persons once were said to act at their own peril and were held strictly liable if their actions harmed others, our tort system has shifted since the latter part of the 19th century to a primarily fault-based approach.

Except in a limited number of circumstances in which strict liability still obtains, most plaintiffs claiming injury and seeking compensation must prove that the defendant was at fault. To win a claim involving an intentional tort, such as physical assault, plaintiffs must demonstrate that the defendant deliberately intended to harm them. Defendants are allowed to argue in response that they acted reasonably in the circumstances—except if they are mentally ill. So the jury in Polmatier v. Russ never had an opportunity to consider Russ's belief that he was acting in self-defense and to ponder whether under the circumstances it would be unfair to hold him liable.

With regard to negligent torts, plaintiffs must prove that the defendant failed to act as would a reasonable person in a similar situation. Generally, what is reasonable is measured by how an average person would act—what the law calls an “objective perspective.” However, contemporary tort law recognizes that people with physical disabilities may be unable to conform to the standard expected of a nondisabled person. For example, a blind person may not be able to avoid bumping into and damaging an object that a sighted person could easily navigate and hence would not be held liable for the damage. Similarly, children are expected to behave only in ways consistent with their level of development. Once again, however, people with a mental illness are excluded from such individualized consideration. So Erma Veith and people like her cannot claim that their delusions made it impossible for them to behave other than as they did.

Despite the consensus of legal scholars that willful neglect of mental disorders in tort cases is unfair, the law has been remarkably resistant to doing things differently. The common law courts have been nearly unanimous in rejecting consideration of defendants' mental illnesses in determining tort liability, and the rare exceptions have quickly been neutralized. Thus some courts have conceded the possibility that a defendant who suddenly and unexpectedly found herself in the grasp of a delusion might be able to avoid liability, only to hold that the exception did not apply in the case at hand (3,10). Even the authors of the third iteration of the influential Restatement of Torts (11) have declined to change the basic rule. As the current draft frames it, “An actor's mental or emotional disability is not considered in determining whether conduct is negligent, unless the actor is a child,” and the commentary rehearses all of the usual arguments in favor of the rule.

The law's intransigence on these issues of tort liability is frankly difficult to understand other than as a reflection of deep-seated prejudices against persons with a mental illness and profound misunderstandings of the nature of mental disorders. For many people with acute mental disorders, especially those in psychotic states, the expectation that they can behave like a reasonable person is itself unreasonable. Unfortunately, despite advances on these matters elsewhere in society, the prospect for changes in the rules of responsibility for torts to allow consideration of the impact of mental illness does not look good.

Goldstein  A:  The Insanity Defense .  New Haven, Conn,  Yale University Press, 1967
 
 Model Penal Code .  Cambridge, Mass,  American Law Institute, 1962
 
Polmatier v Russ, 537 A2d 468 (Conn 1988)
 
 Restatement (Second) of Torts, Sec 283B .  Cambridge, Mass,  American Law Institute, 1965
 
Breunig v American Family Insurance Company, 173 NW2d 619 (Wisc 1970)
 
Korrell  HJF:  The liability of mentally disabled tort defendants.  Law and Psychology Review 19:1–57, 1995
 
Ellis  JW:  Tort responsibility of mentally disabled persons.  American Bar Foundation Research Journal 6:1079–1109, 1981
 
Harlow  K:  Applying the reasonable person standard to psychosis: how tort law unfairly burdens adults with mental illness.  Ohio State Law Journal 68:1733–1760, 2007
 
Silverman  CJ;  Segal  SP:  When the neighbors complain: correlates of neighborhood opposition to sheltered-care facilities.  Adult Residential Care Journal 10:137–148, 1996
 
Ramey v Knorr, 124 P2d 314 (Wash 2005)
 
 Restatement Third, Torts: Liability for Physical and Emotional Harms , Vol 1.  Philadelphia,  American Law Institute, 2010
 
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References

Goldstein  A:  The Insanity Defense .  New Haven, Conn,  Yale University Press, 1967
 
 Model Penal Code .  Cambridge, Mass,  American Law Institute, 1962
 
Polmatier v Russ, 537 A2d 468 (Conn 1988)
 
 Restatement (Second) of Torts, Sec 283B .  Cambridge, Mass,  American Law Institute, 1965
 
Breunig v American Family Insurance Company, 173 NW2d 619 (Wisc 1970)
 
Korrell  HJF:  The liability of mentally disabled tort defendants.  Law and Psychology Review 19:1–57, 1995
 
Ellis  JW:  Tort responsibility of mentally disabled persons.  American Bar Foundation Research Journal 6:1079–1109, 1981
 
Harlow  K:  Applying the reasonable person standard to psychosis: how tort law unfairly burdens adults with mental illness.  Ohio State Law Journal 68:1733–1760, 2007
 
Silverman  CJ;  Segal  SP:  When the neighbors complain: correlates of neighborhood opposition to sheltered-care facilities.  Adult Residential Care Journal 10:137–148, 1996
 
Ramey v Knorr, 124 P2d 314 (Wash 2005)
 
 Restatement Third, Torts: Liability for Physical and Emotional Harms , Vol 1.  Philadelphia,  American Law Institute, 2010
 
References Container
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