Washington Law Review Online

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Mental illness is almost never considered when courts determine whether a defendant is liable for a tort. Nearly every United States jurisdiction—Washington state included—declines to offer a modified “reasonable person” standard for negligent tort defendants with mental illnesses or any form of mental illness-based affirmative defense for intentional tort defendants. There is much debate about whether tort law should evolve to accommodate defendants with mental illnesses. This Comment seeks to dive deeper into why that debate persists.

Although there are numerous justifications for this current state of tort law, the most common rationalizations given are twofold. First, that the primary principle of tort law is to compensate the injured person. Second, that a mental illness-based affirmative defense or modified negligence standard would be problematic to administer in that the factfinder would not know where to “draw the line.” That is, the judge or juror may have difficulty determining whether a defendant’s mental illness truly contributed to their tortious conduct. Many legal scholars rebut this justification by referencing the existence of a modified negligence standard for children and people with physical disabilities, and the availability of the insanity and/or diminished capacity affirmative defenses in criminal courts.

This Comment seeks to provide more insight into the debate by answering the following three questions: (1) Do mental health professionals think it would be possible to “draw the line” and decide whether a defendant qualifies for an affirmative defense or modified negligence standard due to their mental illness? (2) From the perspective of both civil attorneys and mental health professionals, should such a defense and/or negligence standard be available to tort defendants? (3) And would such a defense and/or negligence standard be “workable” in a court of law? These questions are answered in the form of a survey-based research study, and the results indicate a great divide between the opinions of mental health professionals and civil attorneys.

Mental health professionals endorse an affirmative defense of mental illness to intentional torts, while civil attorneys oppose both the availability and workability of intentional tort affirmative defenses and oppose a modified negligence standard. These results do not solidify a definitive answer as to whether courts should consider the mental health of tort defendants. Rather, they highlight a significant discrepancy between tort law and psychology. Even though modern psychological and psychiatric knowledge about mental health tells us that mental illness can mitigate tort culpability, courts and state legislators are unwilling to change the status quo. This reticence to change is likely in the interest of upholding traditional principles of tort law, conserving judicial resources and party expenses, and heeding legal workability concerns.