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Lighting Up Tort Law In Blue: Autism, Disability, and Foreseeability in Negligence Actions

  • By:Ron Payne
Ed. Note: This article was authored by Kimberly J. Byrd, Esq., who is a former partner of Payne Law, PLLC and mother of four wonderful children. She can be reached at kbyrd.jdwfu2013@gmail.com

Criminal incidents involving supposed perpetrators alleged to be autistic have garnered increased media attention in recent years (Sandy Hook Shooting). The increased prevalence and awareness of autism combined with the ever-present 24 hour news cycle results in the accounts of these incidents often being expanded to encompass the autistic community more generally. Where the alleged perpetrator (or his attorney) chooses to proffer autism as a defense to culpability, courts face increased public scrutiny and “are in a sense required to take crash courses in the psychodynamics of the autistic brain.” Autism in the US. “Autism’s unique dissonance between self and other, its lack of perspective and mind-theory, has nothing to do with socio-pathology and can be, in fact, quintessentially innocent. Many individuals with autism would certainly be capable of premeditation, competent to stand trial, and able to withstand punishment. But does punishment respond to any ethical imperative or perform any desirable function besides incapacitation? Does retribution make sense when something other than free will is responsible for terrible actions?” Autism in the US

Similar to criminal law, the imposition of liability in tort actions is, in part, justified by the moral impetus to right the wrong of a defendant’s acts due of the blameworthiness of the defendant under the circumstances presented. While the analysis of an autistic defendant’s blameworthiness and the wrongfulness of his conduct in statutory and common law torts in general is likely to be impacted by increasing numbers of autistic defendants in such cases, it is in the analysis of a negligence action where autism is likely to leave its largest mark on tort law. In a cause of action for negligence, a court must typically consider the elements of duty, breach, factual causation, proximate causation, and the damage suffered by the plaintiff. Specifically, as courts increasingly confront autistic defendants in negligence actions, (1) the distinction between physical and mental disability in courts’ analysis of the breach element is likely to be redefined in some measure by autism’s competing views and (2) a core behavioral feature of autism is likely to either encourage more cohesion or result in further inconsistencies in the already splintered landscape of courts’ consideration of foreseeability in negligence actions.

Many negligence actions arise from situations which are of a social nature. That is, the facts of the case which are alleged to have resulted in damage to the plaintiff involve interpersonal interactions among the plaintiff, defendant, and perhaps others, in every day environments such as workplaces, shopping malls, parks, and schools. “[S]ocial interaction is by definition impaired in persons with autism.” Even where an autistic person has average or above average intellectual ability, they may still be “handicapped by their inability to understand social cues or to reason intuitively in relational contexts.” Autism in the US Regardless of intellectual capacity, people with autism “can have issues with sensory overload, semantics, sarcasm, have difficulty with changes in routine or structure, generally have poor social awareness, and inadequate understanding of nonverbal communications, such as body language and facial expressions, both on the giving and receiving end.” A Legal Review of Autism

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Physical v. Mental Disability & Breach

“[M]ost agree that autism is a neurodevelopmental condition, that is, a condition that impacts brain development and functioning.” Gray Matters. Research shows that autism impacts the structure of a person’s brain and results in developmental delays, particularly in areas of communication and social understanding; however, intellectual ability is not necessarily impaired by autism. While approximately half of autistic persons suffer some concurrent condition impacting their intellectual ability, the other half of the autistic population possess intellectual ability ranging from average to highly gifted.

When analyzing breach in a negligence action, “[t]he conduct of a physically disabled adult is compared to that of a reasonable adult with the same disability,” while “an actor’s mental or emotional disability is not considered in determining whether conduct is negligent, unless the actor is a child.” Restatement (Third) of Torts: Liability for Physical and Emotional Harm §11(a), §11(c). Thus, if a court determined a defendant’s autism rose to the level of a disability, which standard the court would apply in analyzing an autistic defendant’s conduct turns on whether the court would designate autism a physical or mental disability. This designation is necessarily affected by the two competing views of autism, as discussed here. The more traditionally held cure view has thus far designated autism as a mental disability, because of its impact on communicative abilities, atypical social understanding, and heightened sensory sensitivity. Yet research and the neurodiversity view tend towards designation of autism as a physical disability due to its genetic roots, structural neurological differences, and physical manifestations. Similar to the condition of epilepsy, increasing scientific evidence points to the conclusion that the symptoms of autism are rooted in biological differences affecting the physical structure of bodily systems, rather than intellectual deficiencies.

Courts differential treatment of physical and mental disabilities, in part, stems from the historical difficulties faced prior to the advent of modern medicine in discerning whether a defendant’s purported mental disability was genuine. “Physical disabilities are often fairly easy to diagnose, which allows courts to expediently determine their nature and extent. The fact that many physical disabilities are readily observable makes them more difficult to falsify. In addition, persons with physical disabilities are often able to advocate for themselves, which may partly explain the law’s allowance of a subjective standard.” When Reasonable Care is Unreasonable. While the biological manifestations, namely the structure of the brain, are internal with autism and less visible than many physical disabilities, there are physical manifestations of the condition, including stimming, repetitive movements, and unusual eye contact and body language. Persons with autism who do not suffer a concurring intellectual deficit also typically have the capacity to self-advocate, even if they may communicate in an atypical way.   While a court’s designation of autism as a physical disability rather than a mental disability would arguably allow the court to more fully consider the variability of autism’s symptoms and severity in the breach analysis as to a particular defendant, it is unlikely courts will, in any great number, definitively categorize autism as a physical disability for this purpose in the near future.

However, designation of autism by courts as a mental disability in this context could give rise to inconsistent analyses. An autistic defendant who is chronologically over the age of 18 would be subject to the near universal breach standard which would compare his conduct to that of a reasonable person under the circumstances, and his autism would be considered as one of the circumstances present in the situation. But what of his developmental age? In the context of family law, see here, courts structure parenting plans and other custody arrangements with consideration of the developmental age of an autistic child, rather than his chronological age. One can imagine that a court faced with an autistic defendant accused of negligent conduct who is chronologically an adult, but developmentally still a child, may allow consideration of the defendant’s developmental age when determining the question of breach, which could trigger the use of the breach standard typically used in that jurisdiction when analyzing whether the conduct of a child was negligent. Further, there is an inherent inconsistency in designating autism as a mental disability in the case of autistic defendants possessing above average or even gifted intellectual ability.

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Foreseeability: Cohesion or Further Confusion

The proper place for and analysis of foreseeability in a negligence action has been debated by scholars for many years. As courts increasingly confront autistic defendants whose conduct in a social situation gave rise to a negligence action, the social ineptitude and lack of foresight in social situations which nearly all autistic persons face, regardless of their intellectual ability, has the potential to be a force for a more cohesive and well-defined approach to the analysis of foreseeability in a negligence action. However, in the absence of guidance as to how this core feature of autism fits into the negligence analysis, there is also the potential, as courts increasingly confront this issue, that further confusion and splintering among jurisdictions regarding the analysis of foreseeability could result.

[box]  “In a vast majority of states, the prima facie cases for negligence consists of five elements: duty, breach, factual causation, proximate causation, and injury. Courts use some notion of foreseeability in deciding three of these elements: duty, breach, and proximate cause. Black’s Law Dictionary defines the term “foreseeability” as “[t]he quality of being reasonably anticipatable.” According to Random House, the verb “to foresee” means “to have prescience of; to know in advance.” These definitions certainly track one’s common understanding of the term. As used in negligence law, however, foreseeability has particular meaning that depends on its legal context.” Purging Foreseeability. [/box]

In the context of the duty element of a negligence action, courts typically consider a number of factors in deciding whether a particular defendant owed a duty of care to the plaintiff. While the exact factors vary between jurisdictions, and even between cases in the same jurisdiction, many include consideration of some variation of foreseeability. Generally, as the level of foreseeability of the particular plaintiff, type or manner of injury, or risk created by the defendant’s conduct increases, so does the likelihood a court will find the defendant owed a duty of care to the plaintiff. Purging Foreseeability. However, decisions regarding the existence of a duty definitively concluding a situation was either foreseeable or not are often used as a proxy for undisclosed policy reasons behind such a decision and may create broad rules of law likely to be problematic in future cases. Reconstructing Foreseeability. The problematic application of such categorical determinations of foreseeability in the context of duty are likely to be exacerbated by the variability in severity and type of symptoms present across the autism spectrum.

Where a court conditions “the very existence of a duty on foreseeability,” it removes this inherently fact-specific determination from the ambit of the proper fact-finder – the jury. (See Professor Cardi’s discussion in Purging Foreseeability; Reconstructing Foreseeability; Hidden Legacy of Palsgraf) The jury in a negligence action considers foreseeability both in the context of the breach and proximate cause elements. In the analysis of breach, foreseeability impacts the determination of the reasonableness of a defendant’s conduct, typically considering whether the defendant acted as a reasonable person would have under the same circumstances. “Reasonableness often turns on (1) the degree of foreseeable likelihood that the defendant’s actions might result in injury, (2) the range in severity of foreseeable injuries, and (3) the benefits and burdens of available precautions or alternative manners of conduct. Together, the range of likelihood and severity of foreseeable injury constitutes the foreseeable “risk” created by an actor’s conduct. . . . This form of foreseeability is one of general focus. That is, it examines not the foreseeability of the particular injury suffered by the plaintiff, but the foreseeable likelihood and severity of injuries that might have resulted from the defendant’s conduct.” Reconstructing Foreseeability.

Under the typical standard of care, a defendant’s diagnosis of autism would be one of the circumstances faced by the hypothetical reasonable person in the situation. Thus, the jury could take into consideration whether, due to the interpersonal nature of the situation presented in the case, the defendant lacked the general capacity necessary to foresee his actions would cause damage to the plaintiff. For example, one can imagine a situation in which the blunt nature of an autistic person’s communication in a social situation could give rise to a claim of emotional distress. In such a situation, there is an argument, depending on the severity of the defendant’s social impairment resulting from his autism, that a reasonable person in the defendant’s shoes under those circumstances would not have foreseen that his actions might result in injury or that such a resulting injury would have been severe. Further, a jury could take into consideration in its determination of breach precautionary measures the defendant had taken, including therapies and other treatments, to cope with and improve those social impairments imposed upon him by his autism.

In its determination of proximate cause, a jury considers issues of foreseeability in discerning where the line of liability should be drawn in relation to the connection between a defendant’s unreasonable conduct and the resulting injury to the plaintiff. That is, at what point does the resulting injury to the plaintiff fall so far outside the risks created by the defendant’s unreasonable conduct that extending liability to the defendant would be unjust or impractical. “In contrast to foreseeability’s role in breach, the foreseeability inquiry in the context of proximate cause is not general but specific to the particular injury suffered by the particular plaintiff at hand.  .  .  .    [F]oreseeability here aids in the decision of whether the actual consequences of the defendant’s conduct were so bizarre or far-removed from the risks that made the conduct negligent that the defendant, though blameworthy, should not be held liable for them.” Reconstructing Foreseeability.

In answering the question of whether a defendant’s actions were proximate cause of a plaintiff’s injuries, a jury determines if “the link between defendant’s wrong and plaintiff’s injury [is] of a kind for which community notions of obligation and policy suggest that a defendant be held liable? A finding that the plaintiff and the plaintiff’s injury were foreseeable provides a basis for finding such a link and therefore justifies coerced compensation; a finding that the plaintiff or injury was unforeseeable means that such a link is absent and therefore serves to “limit” the reach of coerced compensation even in the face of wrongful conduct.” Reconstructing Foreseeability. This more narrow focus, as compared to the jury’s consideration of foreseeability in the context of breach, could further be impacted by an autistic defendant’s impaired ability to foresee the consequences of his conduct. In determining whether liability should extend to an autistic defendant’s conduct, the severity of a particular autistic defendant’s symptoms and impairment under the circumstances presented by a case necessarily impact on questions of policy arising from the conceptual underpinnings of negligence doctrine.

These questions could include, among others, whether forcing a defendant to compensate the plaintiff for his injuries corrects any moral imbalance where the defendant, through no fault of his own, could not foresee such injuries as a consequence of his actions and whether any purpose of deterring future actions is served where, even having knowledge of certain liability, the particular defendant’s actions would likely not have been deterred due to his inability to internalize the existence of such a risk or because such actions were not within his conscious control, but instead resulted from his autism.

Due to the inconsistencies already present in courts analysis of foreseeability within negligence actions, how these questions, and others presented by autistic parties in negligence actions, will be answered as the rising numbers of autistic persons in the U.S. impact this area of law will necessarily leave its impression on how future courts analyze foreseeability. Whether that impact will result in a more uniform approach to this analysis or cause further splintering in this area, however, only time will tell.

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Over the month of April, we will be blogging about several areas of the law and how the law affects, and is affected by, those with autism. We invite you to visit our website, like us on Facebook, follow us on Twitter, and read and share our blog as we do our part to raise autism awareness.

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