Motor Vehicle Crash Fatalities and Fatality Rates (per Hundred Million Vehicle Miles Traveled), 1899-2009
B. Negligence versus Strict Liability
4. Insanity
144
The Restatement (Third) of Torts supports taking expertise into account in determining whether a defendant exercised reasonable care when (1) the defendant engages in an activity that poses “distinctive and significant dangers” or (2) a plaintiff with a preexisting relationship with the defendant has reasonably relied on the
defendant’s expertise. See RESTATEMENT (THIRD) OF TORTS:PHYS.&EMOT.HARM §12 cmt. a (2010). Certain courts have applied the Restatement’s view. See Levi v. v. Sw. La.
Elec. Membership Coop., 542 So. 2d 1081, 1084 (La. 1989) (holding the employees of defendant power company to the standard of “a reasonable person” with the “superior attributes” of experts in view of the “distinctive and significant dangers” of high power lines); Everett v. Bucky Warren, Inc., 380 N.E.2d 653, 659 (Mass. 1978) (holding that the defendant, a high school hockey coach who had substantial experience in the game of hockey, could be held to a higher standard of care than an average person in the selection of the helmets he supplied his players when one of those helmets failed to protect the plaintiff from injuries).
Why are these cases not treated like those of the expert skiers and drivers who collide with strangers?
145
The psychiatrist testified Erma Veith was suffering from “schizophrenic reaction, paranoid type, acute.” He stated that from the time Mrs. Veith commenced following the car with the white light and ending with the stopping of her vehicle in the cornfield, she was not able to operate the vehicle with her conscious mind and that she had no
knowledge or forewarning that such illness or disability would likely occur.
The insurance company argues Erma Veith was not negligent as a matter of law because there is no evidence upon which the jury could find that she had knowledge or warning or should have reasonably foreseen that she might be subject to a mental
delusion which would suddenly cause her to lose control of the car. Plaintiff argues there was such evidence of forewarning and also suggests Erma Veith should be liable because insanity should not be a defense in negligence cases.
The case was tried on the theory that some forms of insanity are a defense to and preclude liability for negligence under the doctrine of Theisen v. Milwaukee Automobile Mut. Ins. Co. (1962), 18 Wis. 2d 91 . . . .
In Theisen we recognized one was not negligent if he was unable to conform his conduct through no fault of his own but held a sleeping driver negligent as a matter of law because one is always given conscious warnings of drowsiness and if a person does not heed such warnings and continues to drive his car, he is negligent for continuing to drive under such conditions. But we distinguished those exceptional cases of loss of consciousness resulting from injury inflicted by an outside force, or fainting, or heart attack, or epileptic seizure, or other illness which suddenly incapacitates the driver of an automobile when the occurrence of such disability is not attended with sufficient warning or should not have been reasonably foreseen. . . .
The policy basis of holding a permanently insane person liable for his tort is: (1) Where one of two innocent persons must suffer a loss it should be borne by the one who occasioned it; (2) to induce those interested in the estate of the insane person (if he has one) to restrain and control him; and (3) the fear an insanity defense would lead to false claims of insanity to avoid liability. . . .
The cases holding an insane person liable for his torts have generally dealt with pre-existing insanity of a permanent nature. . . .
[But] we think the statement that insanity is no defense is too broad when it is applied to a negligence case where the driver is suddenly overcome without forewarning by a mental disability or disorder which incapacitates him from conforming his conduct to the standards of a reasonable man under like circumstances. These are rare cases indeed, but their rarity is no reason for overlooking their existence and the justification which is the basis of the whole doctrine of liability for negligence, i.e., that it is unjust to hold a man responsible for his conduct which he is incapable of avoiding and which incapability was unknown to him prior to the accident.
146
We need not reach the question of contributory negligence of an insane person or the question of comparative negligence as those problems are not now presented. All we hold is that a sudden mental incapacity equivalent in its effect to such physical causes as a sudden heart attack, epileptic seizure, stroke, or fainting should be treated alike and not under the general rule of insanity. . . .
The insurance company argues that since the psychiatrist was the only expert witness who testified concerning the mental disability of Mrs. Veith and the lack of forewarning that as a matter of law there was no forewarning and she could not be held negligent; and [that] the trial court should have so held. While there was testimony of friends indicating she was normal for some months prior to the accident, the psychiatrist testified the origin of her mental illness appeared in August, 1965, prior to the
accident. . . .
The question is whether she had warning or knowledge which would reasonably lead her to believe that hallucinations would occur and be such as to affect her driving an automobile. Even though the doctor's testimony is uncontradicted, it need not be accepted by the jury. It is an expert’s opinion but it is not conclusive. It is for the jury to decide whether the facts underpinning an expert opinion are true. . . . The jury could find that a woman, who believed she had a special relationship to God and was the chosen one to survive the end of the world, could believe that God would take over the direction of her life to the extent of driving her car. Since these mental aberrations were not constant, the jury could infer she had knowledge of her condition and the likelihood of a hallucination just as one who has knowledge of a heart condition knows the possibility of an attack.
While the evidence may not be strong upon which to base an inference, especially in view of the fact that two jurors dissented on this verdict and expressly stated they could find no evidence of forewarning, nevertheless, the evidence to sustain the verdict of the jury need not constitute the great weight and clear preponderance.
Judgment affirmed.
Notes
1. Insanity as an immunity or an accommodation? Is the Breunig court suggesting that, absent foreknowledge, a suddenly insane defendant is immune to tort liability? Or is insanity something to be taken into account in determining what counts as reasonable?
Would this amount to the standard of a reasonable insane person? What would that mean? Why not apply the rule of Vaughan v. Menlove and exclude the mental disability as irrelevant to the reasonableness of the party’s conduct? Is taking into insanity into account more defensible – or less – when the condition is temporary rather than permanent?
147
2. Confusion in the caselaw. Not all courts have held that sudden insanity is a defense to negligence. See Bashi v. Wodarz, 53 Cal. Rptr. 2d 635 (Cal. App. 1996) (holding that sudden and unanticipated mental illness does not preclude liability for negligence);
Turner v. Caldwell, 421 A.2d 876 (Conn. Super. Ct. 1980) (refusing to accept a
temporary insanity defense in automobile accidents); Kuhn v. Zabotsky, 224 N.E.2d 137 (Ohio 1967) (holding that a defendant who struck a plaintiff’s car could not use sudden mental illness as a defense). Far more common, however, is the Breunig scenario, in which cases are resolved in the plaintiff’s favor by reference to the defendant’s foreknowledge of sudden disability or illness. See Ramey v. Knorr, 124 P.3d 314, 316 (Wash. App. 2005) (tortfeasor who wishes to plead sudden mental incapacity must establish “no prior notice or forewarning of [his or her] potential for becoming
disabled”); Jankee v. Clark County, 612 N.W.2d 297, 301-04 (Wis. 2000) (patient with notice of his manic depressive illness was contributorily negligent in injuries sustained after escaping from a mental health center). Note that the foreknowledge solution is not limited exclusively to insanity or delusion cases. Certain cases relating to the standard of care for beginners might also be characterized as foreknowledge cases. See Navailles v.
Dielman, 50 So. 449, 450 (La. 1909) (holding that the defendant, an inexperienced driver, could be held liable for his negligence because he “ventured upon the streets in an
automobile without knowing how to make an emergency stop”).
3. Sudden physical ailments? The Wisconsin Supreme Court has applied Breunig narrowly in subsequent decisions. See Burch v. American Family Mut. Ins. Co., 543 N.W.2d 277, 281 (Wis. 1996) (holding that a developmentally disabled defendant
driver’s mental capacity was not relevant to determining her liability for negligence). The Wisconsin Supreme Court has also stressed that the rule of special treatment for sudden insanity in Breunig is limited and that the objective standard of care generally applies in insanity cases. See Jankee v. Clark County, 612 N.W.2d 297, 314 (Wis. 2000).
4. Is there a basis for distinguishing cases like Breunig from cases like Lehman v.
Haynam, 133 N.E.2d 97 (Ohio 1956), discussed in the notes above, in which defendants suffer from sudden physical ailments illnesses like epilepsy, heart attacks, or
unconsciousness? What are the relevant considerations for sorting out an actor’s responsibility for injuries arising out of sudden and unanticipated conditions?
5. What if the party alleging negligence had notice of the allegedly negligent party’s condition? Would that change the general treatment of insanity? Consider the next case:
Gould v. American Family Mut. Ins. Co., 543 N.W.2d 282 (Wis. 2000)
BRADLEY,J. . . . The judgment imposed liability against American Family for
personal injuries caused by its insured, Roland Monicken, who was institutionalized suffering from Alzheimer's disease. . . .
148
Monicken was diagnosed with Alzheimer’s disease after displaying bizarre and irrational behavior. As a result of his deteriorating condition, his family was later forced to admit him to the St. Croix Health Care Center. Sheri Gould [the plaintiff] was the head nurse of the center’s dementia unit and took care of him on several occasions.
Monicken’s records from St. Croix indicate that he was often disoriented, resistant to care, and occasionally combative. When not physically restrained, he often went into other patients’ rooms and sometimes resisted being removed by staff. On one such occasion, Gould attempted to redirect Monicken to his own room by touching him on the elbow. She sustained personal injuries when Monicken responded by knocking her to the floor. . . .
It is a widely accepted rule in most American jurisdictions that mentally disabled adults are held responsible for the torts they commit regardless of their capacity to comprehend their actions; they are held to an objective reasonable person standard. . . .
In Breunig, [supra] . . . [t]his court created a limited exception to the common law rule, holding that insanity could be a defense in the rare case “where the [person] is suddenly overcome without forewarning by a mental disability or disorder which incapacitates him from conforming his conduct to the standards of a reasonable man under like circumstances.” . . . .
[T]he actual holding was very limited:
All we hold is that a sudden mental incapacity equivalent in its effect to such physical causes as a sudden heart attack, epileptic seizure, stroke, or fainting should be treated alike and not under the general rule of insanity.
Breunig, 45 Wis. 2d at 544. . . .
The record reveals that Gould was not an innocent member of the public unable to anticipate or safeguard against the harm when encountered. Rather, she was employed as a caretaker specifically for dementia patients and knowingly encountered the dangers associated with such employment. It is undisputed that Gould, as head nurse of the dementia unit, knew Monicken was diagnosed with Alzheimer’s disease and was aware of his disorientation and his potential for violent outbursts. Her own notes indicate that Monicken was angry and resisted being removed from another patient's room on the day of her injury.
. . . .
[O]rdinarily a mentally disabled person is responsible for his or her torts.
However, we conclude that this rule does not apply in this case . . . . When a mentally disabled person injures an employed caretaker, the injured party can reasonably foresee the danger and is not “innocent” of the risk involved. . . . Therefore, we hold that a person institutionalized, as here, with a mental disability, and who does not have the capacity to
149
control or appreciate his or her conduct cannot be liable for injuries caused to caretakers who are employed for financial compensation.
Note
Insanity and caretakers. Why immunize mentally disabled defendants from liability under such circumstances? Would it be an alternative to make the defendant’s condition a relevant consideration in the inquiry into whether the defendant’s conduct was
negligent? Or, if it is nonsensical to describe such defendants as behaving reasonably or unreasonably, what about an approach that hinges the allocation of losses from caretaker injuries on whether the plaintiff caretaker had notice of the kind of conduct that injured her?