The Tort Liability of Insane Persons for Negligence: A Critique

In this law review comment, the author proposes the thesis that insane persons should not be held to the reasonable man standard in negligence actions. The article begins with background history of negligence and contributory negligence. The author then discusses the section of American Law Institute’s Restatement (Second) of Torts that addresses negligence of insane persons. The author provides the American Law Institute’s (ALI) professed policy reasons for holding insane persons to a reasonable man standard. The author then explains why it is not sound policy to hold a truly insane person to the reasonable man standard. The author provides recommendations that address the ALI’s concern that sane persons would be able to avoid penalties by using insanity as a defense. The author then reviews and discusses prior case law that deals with judicial treatment of insane persons in negligence and contributory negligence actions.