1 E.g., Addington v. Texas, 441 U.S. 418 (1979); Lynch v. Baxley, 386 F. Supp. 378 (M.D. Ala. 1974); Developments in the Law—Civil Commitment of the Mentally Ill, 87 Harv. L. Rev. 1190 (1974);Mental Health Law Project, Legal Issues in State Mental Health Care: Proposals for Change: Civil Commitment, 2 Mental Disability L. Rep. 73 (1977).Google Scholar

2 E.g., Mental Health Law Project, Legal Issues in State Mental Health Care: Proposals for Change: Guardianship, 2 Mental Disability L. Rep. 443 (1978);ABA Special Commission on the Mentally Disabled, Developmental Disabilities State Legislative Project, Guardianship & Conservatorship: Statutory Survey; Model Statute (Discussion ed., Washington, D.C.: American Bar Association, June 1979).Google Scholar

3 E.g., Caesar v. Mountanos, 542 F.2d 1064 (9th Cir. 1976); Tarasoff v. Regents of Univ. of Cal., 17 Cal. 3d 425, 551 P.2d 334, 131 Cal. Rptr. 14 (1976); American Psychiatric Association, Confidentiality and Third Parties, Task Force Report No. 9 (Washington, D.C.: American Psychiatric Association, 1975); Mental Health Law Project, Legal Issues in State Mental Health Care: Proposals for Change: Therapeutic Confidentiality, 2 Mental Disability L. Rep. 337 (1977).Google Scholar

4 E.g., Rogers v. Okin, 478 F. Supp. 1342 (D. Mass. 1979) 634 F.2d 650 (1st Cir. 1980), cert, granted, 101 Ct. 1972 (1981); Aden v. Younger, 57 Cal. App. 3d 662, 129 Cal. Rptr. 535 (1976); Superintendent of Belchertown v. Saikewicz, 373 Mass. 728, 370 N.E.2d 417 (1977); Alan A. Stone, Mental Health and Law: A System in Transition 97–108 (New York: Jason Aronson, Inc., 1976); Robert Plotkin, Limiting the Therapeutic Orgy: Mental Patients' Right to Refuse Treatment, 72 Nw. U.L. Rev. 461 (1977).Google Scholar

5 E.g., Wyatt v. Aderholt, 503 F.2d 1305 (5th Cir. 1974); Pennhurst State School & Hosp. v. Halderman, 101 Ct. 1531, 49 U.S.L.W. 4363 (1981); Katz, Jay, The Right to Treatment—an Enchanting Legal Fiction? 36 U. Chi. L. Rev. 755 (1969); Charles R. Halpern, The Right to Rehabilitation in President's Committee on Mental Retardation, The Mentally Retarded Citizen and the Law 384 (New York: Macmillan Publishing Co., Free Press, 1976); N.M. Stat. Ann. § 43–1-7 (1979).Google Scholar

6 E.g., United States v. Brawner, 471 F.2d 969 (D.C. Cir. 1972); Herbert Fingarette & Ann Fingarette Hasse, Mental Disabilities and Criminal Responsibility (Berkeley: University of California Press, 1979).Google Scholar

7 Exhuming the reasonable man might seem less attractive than righting outrageous injustice or establishing constitutional landmarks. E.g., O'Connor v. Donaldson, 422 U.S. 563 (1975) (successful attempt to right an outrageous injustice); Parham v. J.R., 442 U.S. 584 (1979) (failed attempt to right an outrageous wrong); Jackson v. Indiana, 406 U.S. 715 (1972) (establishing constitutional landmark).Google Scholar

8 See generally President's Committee on Mental Retardation, The Mentally Retarded Citizen and the Law (New York: Macmillan Publishing Co., Free Press, 1976).Google Scholar

9 E.g., Wyatt v. Stickney, 325 F. Supp. 781 (M.D. Ala. 1971), aff'd in relevant part sub. nom. Wyatt v. Aderholt, 503 F.2d 1305 (5th Cir. 1974).Google Scholar

10 This article will use the term “mentally disabled” to refer both to mentally ill and to mentally retarded people. See note 16 infra. The courts appear not to have drawn a distinction between these two groups.Google Scholar

11 McGuire v. Almy, 297 Mass. 323, 8 N.E.2d 760 (1937); Johnson v. Lambotte, 147 Colo. 203, 363 P.2d 165 (1961); Curran, William J., Tort Liability of the Mentally Ill and Mentally Deficient, 21 Ohio St. L.J. 52 (1960); American Law Institute, Restatement (Second) of Torts § 283B (1965).Google Scholar

12 See, e.g., In re Meyer's Guardianship, 218 Wis. 381, 261 N.W. 211 (1935) (arson); Morse v. Crawford, 17 Vt. 499, 44 Am. Dec. 349 (1845) (conversion); Krom v. Schoonmaker, 3 Barb. 647 (N.Y. 1848) (false imprisonment); Kaczer v. Marrero, 324 So. 2d 717 (Fla. App. 1976) (assault and battery). Courts have had somewhat greater difficulty with cases of torts that require intent as a necessary element, such as malicious prosecution, alienation of affection, misrepresentation, and defamation. In the last category, compare Irvine v. Gibson, 117 Ky. 306, 77 S.W. 1106 (1904) (malice required), with Ullrich v. New York Press Co., 23 Misc. 168, 50 N.Y.S. 788 (1898) (no malice required). No cases have been found that consider the intent of mentally disabled defendants since the defamation area was constitutionalized in New York Times Co. v. Sullivan, 376 U.S. 254 (1964), and Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974). The impact of Gertz on mentally disabled defendants is not yet clear, but it could be argued that its prohibition on defamation judgments in the absence of fault prohibits a court from finding liability where the defendant's mental disability negates the element of fault.Google Scholar

13 E.g., Cal. Civ. Code § 41 (West 1954); Mont. Rev. Codes Ann. § 27–1-711 (1979); N.D. Cent. Code § 14–10-03 (1971); Okla. Stat. Ann. tit. 15 §§ 25, 26 (West 1972); S.D. Comp. Laws Ann. § 27A-2-4 (1976).Google Scholar

14 Weaver v. Ward, 80 Eng. Rep. 284, Hob. 134 (1616).Google Scholar

15 The case did not involve any allegation of mental disability.Google Scholar

16 The terminology changes with remarkable frequency in this area. Early courts most frequently used the terms “idiot” and “imbecile” to describe persons who were mentally retarded. Sometimes the two were used interchangeably, and at other times they connoted a differentation of ability (higher functioning retarded people were classed as imbeciles). In the early years of this decade, professionals (mostly physicians) began using an additional term, “feeble-minded,” to describe those with greater ability than imbeciles. All of these terms are now archaic, and their continued use by some courts is demeaning. Current usage categorizes the ability of retarded persons on a scale of profound, severe, moderate, and mild retardation. Until 1973, an additional category of “borderline” retardation was used to describe those with the smallest degree of disability. But the American Association on Mental Deficiency, the dominant professional organization in this field, voted to abolish that category, and persons previously labelled “borderline retarded” are now generally viewed as falling within the normal range of intelligence, although they may still be called “slow learners” by the general public. See generally Herbert J. Grossman, ed., Manual on Terminology and Classification in Mental Retardation (Washington, D.C.: American Association on Mental Deficiency, 1977). An even greater variety of labels have been applied to mentally ill persons over the years. Courts have referred to such persons as “mad,”“lunatics,”“insane,” and “crazy,” among numerous other terms. One difficulty that arises in interpreting early cases is that these terms were sometimes used to describe only those persons whom we would now consider mentally ill and at other times included both the mentally ill and mentally retarded. This is a particular problem in interpreting early statements of tort rules regarding liability of “the insane.”. In current usage, the term “mentally disabled” most frequently is an umbrella term that refers to both the mentally ill and the mentally retarded. Care should be taken not to confuse it with “developmentally disabled,” a term originating in federal statutes and adopted in many states to describe a variety of disabilities, the most common of which is mental retardation but which does not include mental illness.Google Scholar

17 See generally G. Edward White, Tort Law in America: An Intellectual History (New York: Oxford University Press, 1980).CrossRefGoogle Scholar

18 Louisiana, a civil law jurisdiction, does not follow the common law rule. Yancey v. Maestri, 155 So. 509 (La. Ct. App. 1934). See also La. Civ. Code Ann. art. 2319 (West 1979). Yancey contains an extensive discussion of the rule in other countries. For another comparative view, see Picher, Pamela, The Tortious Liability of the Insane in Canada, 13 Osgoode Hall L.J. 193 (1975).Google Scholar

19 See, e.g., Melville Madison Bigelow, The Law of Torts 109 (8th ed. Boston: Little, Brown & Co., 1907); Frederick Pollock, The Law of Torts: A Treatise on the Principles & Obligations Arising from Civil Wrongs in the Common Law 35 (1st ed. Philadelphia: Blackstone Publishing Co., 1887); Bohlen, Francis H., Liability in Torts of Infants and Insane Persons, 23 Mich. L. Rev. 9 (1924);Cook, W. G. H., Mental Deficiency in Relation to Tort, 21 Colum. L. Rev. 333 (1921); Curran, supra note 11; Ague, Robert M. Jr., The Liability of Insane Persons in Tort Actions, 60 Dick. L. Rev. 211 (1956);Comment, The Tort Liability of Insane Persons for Negligence: A Critique, 39 Tenn. L. Rev. 705 (1972); Clarence Morris & C. Robert Morris, Jr., Morris on Torts 51 (2d ed. Mineola, N.Y.: Foundation Press, 1980). For contrary views, see Thomas M. Cooley, A Treatise on the Law of Torts: Or the Wrongs Which Arise Independent of Contract 115–19 (2d ed. Chicago: Callaghan & Co., 1888); Alexander, George J. & Szasz, Thomas S., Mental Illness as an Excuse for Civil Wrongs, 43 Notre Dame Law. 24 (1967).Google Scholar

20 In many jurisdictions, the courts appear not to have been asked. The reason for the small volume of appellate litigation is not altogether clear. The alternatives that distracted litigators specializing in mental disability law, as discussed above, would not have applied to personal injury lawyers.Google Scholar

21 Seals v. Snow, 123 Kan. 88, 90, 254 P. 348, 349 (1927). This reason is frequently cited in both early and recent cases.Google Scholar

22 McGuire v. Almy, 297 Mass. 323, 8 N.E. 2d 760, 762 (1937); George A. Smoot, The Law of Insanity 362–63 (Kansas City, Mo.: Vernon Law Books Co., 1929). This rationale is among the most frequently cited in the early cases.Google Scholar

23 Restatement (Second) of Torts § 283B, Comment b(3) at 17 (1965); Schumann v. Crofoot, 43 Or. App. 53, 602 P.2d 298, 300–301 (1979).Google Scholar

24 “So deep is the cunning of the evil doer that it is extremely difficult to detect the ruse, when he is feigning insanity as a cloak under which he may safely work his nefarious ends. The rule is therefore necessary, in order that the evil doer may not be led to simulate madness as a means of escaping the consequence of his tortious acts.” Smoot, supra note 22, at 363. “[I]f parties can escape the consequences of their injurious acts upon the plea of lunacy, there will be a strong temptation to simulate insanity, with a view of masking the malice and revenge of an evil heart.” McIntyre v. Sholty, 121 Ill. 660, 13 N.E. 239, 240 (1887).Google Scholar

25 Restatement (Second) of Torts, § 283B, Comment b(l) at 17 (1965). See also O[liver] W[endell] Holmes, Jr., The Common Law 108 (Boston: Little, Brown & Co., 1881).Google Scholar

26 Jolley v. Powell, 299 So. 2d 647, 649 (Fla. App. 1974); William L. Prosser, Handbook of the Law of Torts 1001 (4th ed. St. Paul, Minn.: West Publishing Co., 1971).Google Scholar

27 If an incentive for caretakers were thought desirable, an action for negligent supervision would probably be more effective. An interesting, if tangential, modern parallel is the current controversy over the liability of psychiatrists and mental facilities for the tortious acts of their patients. See Tarasoff v. Regents of Univ. of Cal., 17 Cal. 3d 425, 551 P.2d 334, 131 Cal. Rptr. 14 (1976). It has been suggested that creation of this third-party liability will dissuade therapists from treating patients who might prove abnormally prone to commit tortious acts. Stone, Alan A., The Tarasoff Decisions: Suing Psychotherapists to Safeguard Society, 90 Harv. L. Rev. 358 (1976).Google Scholar

28 Cooley, supra note 19, at 117.Google Scholar

29 Wolf Wolfensberger, The Nature and Origin of Our Institutional Models (Syracuse, N.Y.: Human Policy Press, 1975).Google Scholar

30 Id. See Marvin Rosch, Gerald R. Clark, & Marvin S. Kivitz, eds., The History of Mental Retardation (Baltimore, Md.: University Park Press, 1976); Leo Kanner, A History of the Care and Study of the Mentally Retarded (Springfield, Ill.: Charles C. Thomas, Publisher, 1964); Kathleen Jones, A History of the Mental Health Services 182–225 (Boston: Routledge & Kegan Paul, Ltd., 1972); Albert Deutsch, The Mentally Ill in America: A History of Their Care and Treatment from Colonial Times 332–86 (2d ed. rev. & enl. New York: Columbia University Press, 1949).Google Scholar

31 Restatement (Second) of Torts § 283B, Comment b(3) at 17 (1965).Google Scholar

32 While resistance to the notion of mentally ill and mentally retarded people living at liberty in the community has not vanished, its expression in law seems an anachronism in an era when legal rights of mentally disabled people have expanded so dramatically. Thus the court's reference to this rationale, citing the Restatement's commentary, is particularly jarring in the recent case of Schumann v. Crofoot, 43 Or. App. 53, 602 P.2d 298, 300 (1979).Google Scholar

33 Grossman, supra note 16; American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (3d ed. Washington, D.C.: American Psychiatric Association, 1980).Google Scholar

34 “Although this factor may be of decreasing importance with the continued development of medical and psychiatric science, it remains at the present time a major obstacle to any allowance for mental deficiency.” Restatement (Second) of Torts, § 283B, Comment b(2) at 17 (1965).Google Scholar

35 Grossman, supra note 16.Google Scholar

36 Disabilities in adaptive behavior are, not surprisingly, quite difficult to quantify. But disputes may also arise concerning the measurement of intellectual ability, such as the appropriateness of the chosen test to the status of the individual litigant and the proper interpretation of the resulting score.Google Scholar

37 Holmes, supra note 25, at 108.Google Scholar

38 Restatement (Second) of Torts §§ 283A, 283C (1965). For a fuller discussion of analogies to the physically handicapped and to children, see text accompanying notes 67–93 infra.Google Scholar

39 See text accompanying notes 33–35 supra.Google Scholar

40 E.g., Jolley v. Powell, 299 So. 2d 647, 649 (Fla. App. 1974).Google Scholar

41 Among the best discussions is Abraham Samuel Goldstein, The Insanity Defense (New Haven, Conn.: Yale University Press, 1967).Google Scholar

42 E.g., Noel v. McCaig, 174 Kan. 677, 258 P.2d 234 (1953); Emory University v. Lee, 97 Ga. App. 680, 104 S.E. 2d 234 (1958). See Note, Contributory Negligence of Incompetents, 3 Washburn L.J. 215 (1964).Google Scholar

43 E.g., Boland v. Missouri R.R., 36 Mo. 484 (1865) (dicta regarding mental disability; the case dealt with a young child); Chicago & Alton R.R. v. Becker, 76 Ill. 25 (1875).Google Scholar

44 Baltimore & Potomac R.R. v. Cumberland, 176 U.S. 232 (1900) (this case also involved a child).Google Scholar

45 Seattle Electric Co. v. Hovden 190 F.7 (9th Cir. 1911). This case did involve an adult who appears to have been mentally retarded, but the statement of the rule, while clear, is technically dictum because the court also concludes that plaintiff's actions would not have been contributorily negligent “even if she had been possessed of ordinary capacity and intelligence.” 190 F. at 9.Google Scholar

46 Id.Google Scholar

47 See text accompanying notes 52–64 infra.Google Scholar

48 The reasons “may not have the same force as applied to contributory negligence.” Restatement (Second) of Torts § 464, Comment g at 509 (1965). See also, Comment, The Tort Liability of Insane Persons for Negligence: A Critique, 39 Tenn. L. Rev. 705, 722 (1972).Google Scholar

49 For a discussion of the various theories of contributory negligence, see Prosser, supra note 26, at 417–18.Google Scholar

50 Thus the current movement to replace contributory negligence with a system of comparative negligence. See text accompanying note 65 infra.Google Scholar

51 “[I]t is better that their wealth, if any, should be used to compensate innocent victims than that it should remain in their hands.” Schumann v. Crofoot, 43 Or. App. 53, 602 P.2d 298, 301 (1979), citing Restatement (Second) of Torts § 283B, comment b (1965).Google Scholar

52 E.g., Deisenrieter v. Kraus-Merkel Malting Co., 97 Wis. 279, 72 N.W. 735 (1897); Georgia Cotton-Oil Co. v. Jackson, 112 Ga. 620, 37 S.E. 873 (1901).Google Scholar

53 In most of the cases, the terminology is imprecise. Some courts appear to believe that some level of mental retardation can be labeled “devoid of intelligence” and some level of mental illness can be identified as “total insanity.” See note 16 supra. No case appears to rest any distinction on the difference between mental illness and mental retardation.Google Scholar

54 Worthington v. Mencer, 96 Ala. 310, 11 So. 72 (1892).CrossRefGoogle Scholar

55 Worthington v. Mencer, 96 Ala. 310, 11 So. at 73–74.Google Scholar

56 Fox v. City and County of San Francisco, 47 Cal. App. 3d 164, 120 Cal. Rptr. 779 (1975).Google Scholar

57 Fox v. City and County of San Francisco, 47 Cal. App. 3d 164, 120 Cal. Rptr. at 784–85.Google Scholar

58 A similar problem has arisen in cases in which druggists are sued for selling the poison with which a mentally ill person attempted or committed suicide. The courts in two cases discussed this as a question of proximate cause. Eckerd's Inc. v. McGhee, 19 Tenn. App. 277, 86 S.W.2d 570 (1935); Riesbeck Drug. Co. v. Wray, 111 Ind. App. 467, 39 N.E.2d 776 (1942). A more straightforward approach (which the courts also pursued in these cases) is to inquire into the disabled person's ability to avoid the injury and thus bring the cases within the framework of contributory negligence. A more numerous group of cases with somewhat similar fact patterns have chosen to use the contributory negligence analysis. These cases involve the alleged liability of mental institutions for failure to protect patients from self-inflicted harm. These cases are characterized by their solicitude toward the claims of the mentally disabled plaintiffs and focus on the defendants' knowledge of the plaintiffs' disabilities and their special duty to protect them from harm. Among the leading cases in this group are Mochen v. State, 43 A.D.2d 484, 352 N.Y.S.2d 290 (1974) (involving a mentally ill teenager); Avey v. St. Francis Hosp. 201 Kan. 687, 442 P.2d 1013 (1968). Similar facts were analyzed under the doctrine of res ipsa loquitur in Vistica v. Presbyterian Hosp. & Medical Center, 67 Cal. 2d 465, 432 P.2d 193, 62 Cal. Rptr. 577 (1967).Google Scholar

59 See David Shapiro, Neurotic Styles (New York: Basic Books, Inc., 1965).Google Scholar

60 American Psychiatric Association, supra note 33.Google Scholar

61 See text accompanying notes 54–55 supra.Google Scholar

62 See note 16 supra.Google Scholar

63 Id.Google Scholar

64 A good introduction to the variety of intelligence tests and their uses is found in Halbert B. Robinson & Nancy M. Robinson, The Mentally Retarded Child (rev. ed. New York: McGraw-Hill Book Co., 1976).Google Scholar

65 In 1980, Professor Goldberg counted 33 states that had adopted some form of comparative negligence. Joseph Goldberg, Judicial Adoption of Comparative Fault in New Mexico: The Time Is at Hand, 10 N.M.L. Rev. 3, 7 (1979-80). Since that time the total has reached at least 35. Claymore v. City of Albuquerque, 20 N.M. St. B. Bull. 289 (Feb. 12, 1981); Alvis v. Ribar, 85 Ill. 2d 1, 421 N.E.2d 886 (1981).Google Scholar

66 Several cases involving mentally disabled litigants have arisen in comparative negligence jurisdictions, but none addresses the question of apportionment of responsibility and the standard of care for the disabled. See Bruenig v. American Family Ins. Co., 45 Wis. 2d 536, 173 N.W.2d 619 (1970); Warner v. Kiowa County Hosp. Auth., 551 P.2d 1179 (Okla. App. 1976); Miller v. Trinity Medical Center, 260 N.W.2d 4 (N.D. 1977).Google Scholar

67 This incongruity is not unique to cases involving mentally disabled litigants. Courts in comparative negligence jurisdictions have had to consider the appropriateness of utilizing the comparative fault doctrine in products liability cases. E.g., Daly v. General Motors Corp., 20 Cal. 3d 725, 575 P.2d 1162, 144 Cal. Rptr. 380 (1978). The concurring and dissenting opinions in Daly raise many of the same problems considered here in the context of mental disability, but the majority concluded that the jury would be able to apportion responsibility even when required to utilize different standards (strict liability for defendant manufacturer and the reasonable person standard for the “contributory” negligence of plaintiff). Viewed from another perspective, the difficulty in using two different standards may say less about the appropriateness of those standards than it says about the conceptual difficulties inherent in the operation of the comparative negligence doctrine itself.Google Scholar

68 Restatement (Second) of Torts § 283C (1965).Google Scholar

69 Restatement (Second) of Torts § 283C, Comment b (1965).Google Scholar

70 Education for All Handicapped Children Act of 1975, Pub. L. No. 94–142, 89 Stat. 773, 20 U.S.C.A. §§ 1401–61 (West 1978); Rehabilitation, Comprehensive Services, and Developmental Disabilities Amendments of 1978, Pub. L. No. 95–602, 92 Stat. 2955, 29 U.S.C.A. § 706(7)(B) (West 1980 Supp.).Google Scholar

71 See text accompanying notes 29 and 30 supra.Google Scholar

72 See generally Paul R. Friedman, The Rights of Mentally Retarded Persons (New York: Avon Books, Discus Books, 1976); Patricia M. Wald, Basic Personal and Civil Rights, in President's Committee on Mental Retardation, supra note 5 at 3.Google Scholar

73 Robinsue Frohboese & Bruce Sales, Parental Opposition to Deinstitutionalization: A Challenge in Need of Attention and Resolution, 4 Law & Human Behavior 1 (1980); Robert B. Kugel & Ann Shearer, eds., Changing Patterns in Residential Services for the Mentally Retarded (rev. ed. Washington, D.C.: President's Committee on Mental Retardation, 1976).CrossRefGoogle Scholar

74 Id.Google Scholar

75 See generally Robert B. Edgerton, The Cloak of Competence: Stigma in the Lives of the Mentally Retarded (Berkeley: University of California Press, 1967). For a comparative view of American and European attitudes, see Leopold Lippman, Attitudes Toward the Handicapped: Comparison Between Europe and the United States (Springfield, Ill.: Charles C. Thomas, Publisher, 1972).Google Scholar

76 See text accompanying notes 39–41.Google Scholar

77 The Massachusetts Supreme Judicial Court grappled with a similar issue in determining the appropriate test for substituted judgment when a profoundly retarded man was proposed for life-prolonging (but not life-saving) chemotherapy for leukemia. The court ruled that the substitute decision maker should decide as the disabled person would have decided for himself if competent and if he were able to take into account the effects of his own incompetence. Superintendent of Belchertown v. Saikewicz, 373 Mass. 728, 370 N.E.2d 417 (1977).Google Scholar

78 45 Wis. 2d 536, 173 N.W.2d 619 (1970).Google Scholar

79 Accord, Buckley and Toronto Transp. Comm'n. v. Smith Transp., Ltd., 1946 Ont. L. Rep. 798, [1946] 4 D. L. Rep. 721 (1946). Other courts in the United States have reached the opposite conclusion and ruled that no exception to the objective standard is warranted. Sforza v. Green Bus Lines, Inc. 150 Misc. 180, 268 N.Y.S. 446 (1934); Kuhn v. Zabotsky, 9 Ohio St. 2d 129, 224 N.E.2d 137 (1967).Google Scholar

80 Restatement (Second) of Torts § 283A (1965).Google Scholar

81 Prosser, supra note 26, at 996.Google Scholar

82 See 2 Fowler V. Harper & Fleming James, Jr., The Law of Torts 926 (Boston: Little, Brown & Co., 1956); Prosser, supra note 26, at 156.Google Scholar

83 For adults of superior ability, the only exception to the objective reasonable person standard is that some professionals, such as surgeons, will be held to the standard expected of their similarly situated colleagues, rather than to the lay person's knowledge of anatomy, for example.Google Scholar

84 Restatement (Second) of Torts § 283A, Comment b (1965).Google Scholar

85 Id. at 15.Google Scholar

86 See generally, American Psychiatric Association, supra note 33.Google Scholar

87 See generally, James, Fleming Jr. & Dickinson, John J., Accident Proneness and Accident Law, 63 Harv. L. Rev. 769 (1950).Google Scholar

88 American Law Institute, Model Penal Code § 4.01(2) (Proposed Official Draft, 1962); but see Wade v. United States, 426 F.2d 64 (9th Cir. 1970).Google Scholar

89 One problem that the courts have confronted in cases involving children is the matter of driving automobiles and other vehicles. Courts have generally concluded that when a child engages in such “adult” activity, he will be held to an objective adult standard and will not be able to use the defense that normally would be his because of his youth. Prosser, supra note 26, at 156–57. This rule arose from concern about public safety. Similar concerns may be involved in the creation of a similar exception to a subjective standard for mentally disabled adults—that they will not be excused from negligence when they violate traffic laws. See Criez v. Sunset Motor Co., 123 Wash. 604, 213 P.7 (1923).Google Scholar

90 This is true not only in law but in societal attitudes generally. Retarded adults are often thought of (and treated) as children who never grew up. They are frequently addressed and referred to as “boys” and “girls,” even when they are middle aged and older. See text accompanying note 92 infra.Google Scholar

91 Robinson & Robinson, supra note 64. See also Frank J. Menolascino, ed., Psychiatric Approaches to Mental Retardation 717–19 (New York: Basic Books, Inc., 1970).Google Scholar

92 It is also used, of course, with mentally retarded children. Thus a child with a chronological age of 12 may be said to have a mental age of 3.Google Scholar

93 See generally Wolf Wolfensberger, The Principle of Normalization in Human Services (Toronto: National Institute on Mental Retardation, 1972).Google Scholar

94 William G. Bronston, Concepts and Theory of Normalization, in Richard Koch and James Dobson, eds., The Mentally Retarded Child and His Family: A Multidisciplinary Handbook 490 (rev. ed. New York: Brunner/Mazel, Inc., 1976).Google Scholar

95 One attempt at a renewed defense of the objective standard for the mentally ill is found in Alexander & Szasz, supra note 19. The authors base their defense upon a theory of moral responsibility. Whatever its attractiveness in cases involving the mentally ill, it would probably find less acceptance in cases involving the mentally retarded.Google Scholar