Doomed Steamers and Merged Fires: The Problem of Preempted Innocent Threats in Torts

Abstract

This article addresses a classic question of tort theory: When a court assesses damages in a negligence action, is it relevant that the defendant’s negligence prevented the plaintiff from suffering a later unrelated harm? For example, defendant Taxi Driver negligently crashes his taxi thereby injuring plaintiff Passenger. Is it relevant that because of the accident Passenger did not reach the ocean liner he had been planning to sail on and, as a result, his life was saved because the ocean liner sank, killing everyone aboard?

Though this question has been recognized and addressed for almost a century, there is no consensus among either courts or commentators on its proper answer. Some take the position that because the defendant’s negligent conduct actually benefited the plaintiff, there should be no recovery. Others take the position that because the benefit provided – avoidance of drowning – was unforeseeable it should not reduce the plaintiff’s recovery. This article reviews and critiques the existing literature on the topic and provides a new, superior, answer: The preemption of an innocent threat, such as the threat of being drowned on an ocean liner, is relevant to the extent, and only the extent, that the harm preempted is identical to the harm that would have befallen the plaintiff if not for the negligence. Thus some, but not full, reduction in recovery is appropriate. The article defends this position as coherent, intuitively correct and supported by existing law.