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

Witt & Tani, TCPI 4. Negligence Standard
could find no evidence of forewarning, nevertheless, the evidence to sustain the verdict of the jury
need not constitute the great weight and clear preponderance.
Judgment affirmed.
Notes
1. Mental illness as an immunity or an adjustment to the reasonable person standard? Is the
Breunig court suggesting that, absent foreknowledge, a suddenly ill defendant is immune from
tort liability? Or is mental illness something to be taken into account in determining what counts
as reasonable, just as the standard accounts for physical impairment? Would this amount to the
standard of a reasonable mentally ill person? What would that mean? Why not apply the rule of
Vaughan v. Menlove and exclude the mental impairment as irrelevant to the reasonableness of the
party’s conduct? Is taking mental illness into account more defensible—or less—when the
condition is temporary rather than permanent?
2. Confusion in the caselaw? Not all courts have held that sudden mental illness may shield
an actor from liability for negligence. See Bashi v. Wodarz, 53 Cal. Rptr. 2d 635 (Cal. App. 1996)
(holding that sudden and unanticipated mental illness does not preclude liability for negligence);
Turner v. Caldwell, 421 A.2d 876 (Conn. Super. Ct. 1980) (refusing to accept a temporary
insanity defense in automobile accidents); Kuhn v. Zabotsky, 224 N.E.2d 137 (Ohio 1967)
(holding that a defendant who struck a plaintiff’s car could not use sudden mental illness as a
defense). But do these divergent approaches in fact lead to different results? Note that in
Breunig-type scenarios, in jurisdictions that accept the Breunig approach, cases are in fact often
resolved in the plaintiff’s favor because of the defendant’s foreknowledge of the possibility of
sudden disability or illness. See Ramey v. Knorr, 124 P.3d 314, 316 (Wash. App. 2005)
(tortfeasor who wishes to plead sudden mental incapacity must establish “no prior notice or
forewarning of [his or her] potential for becoming disabled”). Note that the foreknowledge
solution is not limited exclusively to mental illness or delusion cases. Certain cases relating to the
standard of care for beginners might also be characterized as foreknowledge cases. See Navailles
v. Dielman, 50 So. 449, 450 (La. 1909) (holding that the defendant, an inexperienced driver, could
be held liable for his negligence because he “ventured upon the streets in an automobile without
knowing how to make an emergency stop”).
3. The narrow scope of the Breunig rule. The Wisconsin Supreme Court has applied
Breunig narrowly in subsequent decisions. See Burch v. American Family Mut. Ins. Co., 543
N.W.2d 277, 281 (Wis. 1996) (holding that a developmentally disabled defendant driver’s mental
capacity was not relevant to determining her liability for negligence). The Wisconsin Supreme
Court has also stressed that the rule of special treatment for sudden mental illness in Breunig is
limited and that the objective standard of care generally applies in mental illness cases. See
Jankee v. Clark County, 612 N.W.2d 297, 314 (Wis. 2000). Explaining why this approach
continues to make sense in the 21 st century, the Court has supplemented the rationales in Breunig
with two others: (1) “in an era in which society is less inclined to institutionalize the mentally
disabled, the reasonable person standard of care obligates the mentally disabled to conform their
behavior to the expectations of the communities in which they live”; and (2) the reasonable person
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