Law Commons^™

Tort Responsibility Of Mentally Disabled Persons, James W. Ellis

Faculty Scholarship

The standard of care to be applied in tort cases involving mentally disabled people has not been reconsidered in recent years. Traditional rationales for the "objective" standard are less persuasive in the context of current legal approaches to the rights of mentally ill and retarded persons. Analogies to children (especially the concept of "mental age") and to physically handicapped adults merit reexamination. The objective standard of care for mentally disabled defendants was an outgrowth of the ideology of confinement-an ideology that society has since abandoned. Adoption of a subjective standard would not right a vast number of grave injustices, nor …