Mental Disabilities and Duty in Negligence Law: Will Neuroscience Reform Tort Doctrine?

Abstract

Recent developments in neuroscience may contribute to some long-needed changes in negligence law. One negligence rule in need of reform is the duty rule allowing physical disabilities to be considered in determining whether a party acted negligently, but disallowing mental disabilities for adult tortfeasors. Further, this bifurcated rule applies imposes an objective standard only on adults alleged to have acted negligently. A subjective standard applies to all parties in intentional torts and to children in negligence actions. Courts justify the bifurcated rule for adults on policy grounds, but these policy underpinnings are no longer valid in contemporary society. More accurate diagnosis of mental conditions through neuroimaging, combined with a better understanding of the behavioral patterns that accompany such conditions, support the need for reform. This article looks at both tort doctrine and neuroscience and concludes that the bifurcated rule is no longer tenable in the era of neuroscience. This article’s modest proposal for understanding how neuroscience may contribute to eliminating the bifurcated rule in tort law is intended as a means to initiate a broader discourse about the potential impact of neuroscience on other aspects of tort doctrine.