Ian J. Cosgrove


This Note argues that the distinction between what constitutes a physical versus a mental disability can no longer rationally be sustained. Specifically, its purpose is to show that providing an exception to the “reasonable person” standard in negligence actions for the physically disabled while withholding it for those with mental infirmities is increasingly indefensible. Part I briefly tracks the origins of the current rule in tort law that holds the mentally and physically disabled to separate standards. This discussion is purposely left short because of the breadth of scholarship tracing the standard. Part II seeks to justify, through neuroscientific brain imaging evidence, the claim that numerous disabilities are fundamentally the same regardless of their label as either mental or physical. Additionally, Part II explores the “traditional” justifications for the current rule and attempts to undermine those rationales in light of these findings. Part III concludes with a rather straightforward remedy for this distinction without a difference that does away with the logical inconsistencies of treating the disabled in two separate subsets. This proposal, as already suggested, is fueled by the recently developed ability to identify and substantiate the existence of a mental disability. The proposed solution incorporates both a subjective and objective element that will allow courts to analyze the merits of a mental disability exception without major disruption in the administrative and procedural course of negligence litigation.

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