Torts - Cases, Principles, and Institutions Fifth Edition, 2016a

Witt & Tani, TCPI 4. Negligence Standard
Id. at 866-68. If tort law were really concerned with vindicating a “right to live in the world,”
tenBroek argues, it would ask “not whether the defendant created an unreasonable risk of harm [to
a disabled plaintiff], but whether he interfered with the effectuation of the policy of the social
integration of the disabled; not whether the [disabled] plaintiff conducted himself as a reasonable
man of ordinary prudence acting in the light of all the circumstances, but whether he acted
pursuant to his right to be a part of his community.” Id. at 914.
How radical is tenBroek’s proposal? How sound? The answer may depend on how you
understand disability. One conventional understanding of disability is that it is an individual
characteristic—a biologically or medically based trait, akin to sex or age. By contrast, the “social
model” of disability, which emerged in the 1960s, emphasizes the role of society, culture, and
other external forces in limiting what people with particular bodies and minds can do, thereby
creating disability where none necessarily had to exist. Today, many scholars of disability and
many people who identify as disabled have embraced the core insight of this social model (while
pulling back from any implication that individuals’ bodily experiences are entirely socially
constructed). See generally Sagit Mor, The Meaning of Injury: A Disability Perspective, in
INJURY AND INJUSTICE: THE CULTURAL POLITICS OF HARM AND REDRESS 27, 29 (Anne Bloom,
David M. Engel, & Michael McCann, eds., 2018). How might tort law’s approach to physical
difference “mediate” the experience of disablement? Could tort law alleviate the conditions that
cause particular individuals to feel disabled as they navigate the world? Should it? Note that
since tenBroek’s time, a bevy of state and federal statutes have emerged to protect the access
rights of people with disabilities, including Section 504 of the Rehabilitation Act of 1973, Pub. L.
No. 93-112, § 504, 87 Stat. 355, 394 (codified as amended at 29 U.S.C. § 794(a) (2012)), and the
Americans with Disabilities Act of 1990, Pub. L. No. 101-336, § 2, 104 Stat. 327, 328 (codified as
amended at 42 U.S.C. § 12101 (2012)). But much of what tenBroek critiqued in 1966 still holds
for tort law. See Adam A. Milani, Living in the World: A New Look at the Disabled in the Law of
Torts, 49 CATH. U. L. REV. 323 (1999).
If we do want to take seriously a “right to live in the world” as a concern of tort law, what
is the content of that right? Here it is worth saying more about tenBroek: in addition to being
blind, he was white, tall, and handsome; he was highly educated, with advanced degrees in
political science and law; at the time he wrote this article, he was a professor at one of the world’s
greatest universities (the University of California, Berkeley) and had served in a prominent
position in California state government; his wife, Hazel tenBroek, was extremely devoted to his
care and his work. Does tenBroek’s “right to live in the world” extend to disabled people whose
circumstances might require the actors around them to make much more significant adjustments
than would be required to vindicate his own “right to live in the world”? And what does it mean
to “live in the world” in a full and dignified way? Does tenBroek idealize too much the way that
able-bodied, adult, white, educated, male breadwinners navigate public space? Or should
everyone, with the aid perhaps of tort law, be entitled to experience the world in that way?
4. What about physical impairments that arise suddenly? See, for example, Lehman v.
Haynam, 133 N.E.2d 97 (Ohio 1956), where the court ruled that a defendant’s sudden and
unforeseeable unconsciousness would be relevant to the determination of whether he drove
negligently when his car veered across the center line of a highway and struck the plaintiff. (That
is, the court did not employ the metric of a reasonable person who was not so afflicted.) The Ohio
Supreme Court recently reaffirmed the Lehman rule and noted that it is supported by “the great
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