Increasing risk does not ordinarily result in tort liability. For instance, every speeding driver increases the risk of a traffic accident.' Tort liability, however, attaches only if the driver actually causes an accident, This means that of two reckless drivers who engage in exactly the same risky behavior, one might face great liability, while the other might escape with no liability at all. The difference between the two cases is in many ways a mere fortuity-whether timing and circumstance conspire to cause a traffic accident in a particular case or not. Many acts of reckless driving go unanswered in tort under this system. We accept this result in the case of the reckless driver, partly because the chance of an accident will probably deter potential defendants from engaging in risky behavior. Moreover, if no accident occurs, there is no plaintiff to compensate.
The typical case involving human exposure to toxic substances, however, presents an entirely different set of concerns. Injuries often remain latent for many years, creating procedural and evidentiary barriers to tort recovery. Inherent difficulties in proving causation form an additional barrier. As a result, actual injuries may not result in appropriate tort liability. This calls into question current tort law's ability to deter behavior that results in human exposure to toxic substances. Moreover, when the reckless driver parks her car, the risk is over. We know at that point whether any injuries have occurred. People exposed to toxic substances, however, remain at in- creased risk for contracting a disease long after the risk-creating activity has ceased.
Tort law has not effectively addressed the unique problems presented by toxic exposure cases. These cases challenge traditional tort principles in ways reminiscent of some of the most vexing tort problems courts have faced in the twentieth century-wrongful life cases, DES litigation, and loss of chance cases. As in those situations, toxic tort cases call for special rules. To ensure clarity, uniformity and fair application, these special rules should be developed and implemented by state legislatures. Specifically, causes of action based on increased risk-medical monitoring, fear of future disease, and outright recovery for increased risk-should be recognized at law.
Tamsen D. Love,
Deterring Irresponsible Use and Disposal of Toxic Substances: The Case for Legislative Recognition of Increased Risk Causes of Action,
49 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol49/iss3/6