Unrealized Torts

Abstract

This article addresses negligence claims brought by persons who are placed at heightened risk of as-yet unmanifested injuries. It argues, first, that such claims are not rightly characterized as creating a class of "inchoate" torts: we maintain that there are no inchoate torts. Further, we note that the absence of inchoate torts, although difficult to explain on standard economic-deterrence views, is quite intelligible on a conception of tort as a law of civil recourse. Second, the article argues that claims for unripened injuries cannot be salvaged as claims for the "harm" of being exposed to heightened risk of illness. The duties of negligence law are duties to take care not cause full-blown injuries, not duties to avoid creating risks of injuries, and we offer several overlapping explanations as to why negligence law operates in terms of such duties. Third, the article asserts that heightened-risk claims are not well captured within the doctrinal category of "negligent infliction of emotional distress," in large part because the category itself does not make much sense. To the extent, claims for fear of future injury ought to be actionable, it is only in situations where that fear arises from the plaintiff's having been exposed to an objective threat of physical harm or disease. To the extent actionable, actions for negligence causing fear of future injury are thus best seen as close cousins of the ancient tort of assault. Finally, we maintain that suits seeking reimbursement for medical monitoring to detect the future onset of illness are best understood not as seeking compensatory damages for ripened torts, but instead as requesting equitable relief prior to ripening in the form of court-ordered funding of medical treatment. Conceptualizing medical monitoring suits in this manner, we argue, makes sense of the courts' reluctance to award lump sum damages to such claimants, and provides judges with a more coherent framework within which to determine when they should award funds for monitoring.

Keywords: assault, disease, duty, emotional distress, equitable relief, fear, future injury, harm, inchoate, injury, medical monitoring, negligence, recourse, risk, threat