Tort Law’s Temporality Impasse

forthcoming, 52 Florida State Law Review (2024)

Virginia Public Law and Legal Theory Research Paper No. 2024-28

39 Pages Posted: 14 Mar 2024

See all articles by Kenneth S. Abraham

Kenneth S. Abraham

University of Virginia School of Law

G. Edward White

University of Virginia School of Law

Date Written: March 13, 2024

Abstract

It has long been said that the common law "works itself pure" But in the law of torts, not always. This Article reveals and analyzes the inconsistencies among a set of tort doctrines whose relationship to each other has gone unrecognized for over a century-and-a-half. These are what we call the “temporality” doctrines. Temporality occurs when wrongdoing by more than one party, whether two or more defendants or a defendant (or defendants) and a plaintiff, occurs sequentially rather than simultaneously. At least half-a-dozen seemingly unrelated tort law doctrines deal directly with temporality issues. These include avoidable consequences, anticipatory failure to mitigate damages, negligent enablement of subsequent tortious conduct, negligent aggravation of harm caused by prior tortious conduct, liability to rescuers, last clear chance, and comparative negligence.

In different ways, these doctrines are often in serous in conflict in their treatment of temporality. For example, under some of the doctrines, both the first and the second wrongdoer are responsible for the injuries at issue. That is true under enablement and aggravation. Under some of the others, however, only one of the wrongdoers is responsible. That is true under avoidable consequences. Other blatant conflicts also exist. There are seemingly rational reasons for each doctrine and for the treatments of different forms of sequential wrongdoing they address, but at least some of those reasons would also apply to other doctrines that adopt the opposite approach. There is what amounts to an intellectual separation among the doctrines. Because each doctrine occupies its own conceptual silo, neither the courts nor torts scholars have recognized that each of the temporality doctrines is related to the others.

That is tort law's temporality impasse. Our analysis identifies the previously-unrecognized connections among these doctrines and teases out the fundamental contradictions among them – contradictions that are not going away and – for a series of reasons we describe in detail -- probably cannot go away. The common law in this area is not working itself pure, and has no prospect of doing so.

Keywords: torts, causation, defenses

Suggested Citation

Abraham, Kenneth S. and White, G. Edward, Tort Law’s Temporality Impasse (March 13, 2024). forthcoming, 52 Florida State Law Review (2024), Virginia Public Law and Legal Theory Research Paper No. 2024-28, Available at SSRN: https://ssrn.com/abstract=4757968

Kenneth S. Abraham (Contact Author)

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States
434-924-3616 (Phone)
434-982-2845 (Fax)

G. Edward White

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States
(434) 924-3455 (Phone)

HOME PAGE: http://www.law.virginia.edu/lawweb/faculty.nsf/PrF

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Downloads
43
Abstract Views
139
PlumX Metrics