A Disability-Inclusive Theory of “Ordinary” Care: Redistributing Accommodative Labor in Torts

Everyone generally owes each other a duty of ordinary care—but what is “ordinary”? How does one act reasonably to meet this burden? The answer depends on a plaintiff’s disability status. This Comment analyzes the current reasonable per- son standard for disabled plaintiffs and the corresponding duty of “ordinary care” provided by defendants through a critical disability studies lens. The current system burdens disabled plaintiffs with accommodating themselves, rather than requiring defendants to include accessible care in meeting their general duty of ordinary care. To redistribute this inequitable distribution of accommodative labor, this Comment proposes three stackable policies: (1) courts should reinterpret defendants’ duty of ordinary care to include care of individuals with disabilities by eliminating the doctrine that tortfeasors owe accommodations to people with disabilities only if they are on notice of their disabilities; (2) courts could further shift the balance of accommodative labor by factoring the mental and physical cost of accommodating oneself, or “disability admin” labor, into the reasonable care inquiry when the plaintiff is disabled; and (3) courts could eliminate comparative negligence for plaintiffs with disabilities to address the problematic “reasonable person with a disability” standard. This Comment also explores theoretical, doctrinal, and normative justifications while also creating space for a more robust dialogue on how the law treats disability as “extra”—but not ordinary.