Negligence Without Harm
The harm requirement is one of the most fundamental tenets of negligence law: the tort is incomplete and there can be no legal redress without proof of actual damage. Footnote #1 content: See infra Section I.A. Courts and scholars often state that the harm requirement is a general characteristic of tort law. See, e.g., JULES L. COLEMAN, RISKS AND WRONGS 198 (1992) (“At the core of tort law is a certain practice of holding people liable for . . . wrongful losses . . . .”); Martin Stone, The Significance of Doing and Suffering (“In tort, the plaintiff complains that she has been injured by the defendant’s wrongdoing.”), in PHILOSOPHY AND THE LAW OF TORTS 131, 134 (Gerald J. Postema ed., 2001); Kenneth S. Abraham, Essay, What Is a Tort Claim? An Interpretation of Contemporary Tort Reform, 51 MD. L. REV. 172, 177 (1992) (“[T]ort liability is imposed only when the defendant’s actions have caused physical harm to the plaintiff . . . .”); Claire Finkelstein, Is Risk a Harm?, 151 U. PA. L. REV. 963, 964 (2003) (“In tort, there can be no damages if no one has been harmed . . . .”); John C.P. Goldberg, Twentieth-Century Tort Theory, 91 GEO. L.J. 513, 516 (2003) (“[T]ort . . . provide[s] redress for[] injurious wrongs . . . .”). To the extent that the term “tort” is used in its general sense, rather than as a synonym for negligence, these are inaccurate generalizations. See infra Section II.B.2. Mere exposure to risk, even when it is foreseeable and unreasonable, is not actionable. This Article dares to challenge this time-honored, deep-rooted, and highly impactful legal axiom.
To instantly understand the Article’s revolutionary contribution to legal theory and practice, consider the famous case of Michael Buckley, a railroad pipe fitter who was negligently exposed to asbestos for three years while working for a rail-way company. Footnote #2 content: Metro-N. Commuter R.R. v. Buckley, 521 U.S. 424, 426–27 (1997). Undoubtedly, had Buckley developed cancer, he would have been entitled to compensation; but he had shown no signs of illness and sued his employer for negligent infliction of emotional distress (NIED) based on the fear of developing cancer, and for the cost of medical monitoring. Footnote #3 content: See id. at 427. The Supreme Court rejected Buckley’s claims, holding that he did not meet the physical impact requirement for liability for NIED Footnote #4 content: Id. and that medical monitoring costs are irrecoverable when the plaintiff has no symptoms. Footnote #5 content: See id. at 438–44. Under existing negligence doctrine, Buckley could not pursue an injunction to stop his admittedly negligent exposure to asbestos at any time. Similarly, he could not seek any monetary award to vindicate his right to a reasonable level of physical security, incentivize the employer to take reasonable precautions, prevent the employer’s unjust enrichment, or punish the employer for allegedly reckless conduct. Such claims would be doomed to fail, simply because negligence is not actionable without harm.
This Article suggests thinking the heretofore unthinkable: abolishing the harm requirement and making the creation of foreseeable unreasonable risk actionable per se. It launches a three-pronged attack on the traditional structure of the tort of negligence. To begin, it shows that the harm requirement creates an internal inconsistency in tort doctrine. Although the elements of duty and unreasonable conduct (referred to as “breach of duty”) indicate that negligent conduct should be actionable in itself, the harm requirement suggests otherwise. This incoherence can be overcome by abolishing the harm requirement.
Next, the Article argues that negligent conduct, defined as exposing another person to foreseeable unreasonable risk, is an interpersonal moral wrong irrespective of its consequences. Even so, unless such a risk materializes, current doctrine denies the wronged party a cause of action against the wrongdoer. The wronged has no redress beyond praying that the risk does not materialize, and the wrong-doer is not reprimanded for an apparent wrong. This legal reality is bluntly unfair (or unjust) as between the two.
Finally, this Article contends that the harm requirement cannot be defended in terms of efficiency (an economic-analysis-of-law perspective). To the extent that tort law aims to prevent inefficient conduct, it does not have to await harm and use the indirect, complicated, and seemingly flawed method of ordering some people to pay compensatory damages ex post in order to ensure internalization by others ex ante. Allowing those exposed to unreasonable risks to seek pre-injury preventive remedies, such as injunctions, punitive damages, or risk-based damages, is a direct, straightforward, and effective way of achieving the same desirable outcome.
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