51 Pages Posted: 17 Jan 2005
Increasingly, commentators complain of two major deficiencies in modern tort law: (1) that liability concepts such as negligence or duty are so vacuously defined as to permit inadvertent subjectivity and error to hinder proper case adjudication; (2) that tort is too slow in recognizing newly discovered risks and properly compensating nascent classes of injury. We accordingly report on the Kindynamic Theory, an emerging philosophy that overcomes these twin deficiencies and sharpens understanding of poorly articulated tort intuitions.
Kindynamics contends causation is the cornerstone of tort, and that all risks are, at core, causal propositions. Contrary to its many everyday definitions, the word risk has a single exact meaning in Kindynamic Theory. A risk, unlike uncertainties, must be objectively known to be causally possible (epistemically possible). Put differently, Kindynamics prescribes that a specific alleged stimulus must be objectively known to cause a particular harm.
Second, and in the only notable break with traditional tort intuition, some Kindynamic proponents advocate permitting compensation only for injuries arising from significant risks: those that are (1) widespread and (2) also likely to be injurious. Similar to common regulatory practice, the prescriptive significant risk constraint seeks to sensibly prioritize risk deterrence, given limited judicial resources.
Third, Kindynamic Theory invokes decision analysis - the method for formal, quantitative risk analysis universally familiar to risk analysts - to elucidate risk tradeoffs and make decisions about a risk's costs and benefits. With its empirical grounding, decision analysis improves upon other cost-benefit models, which are typically too theoretical or assumption-laden for practical use.
Finally, courts have long desired and intuitively but unsuccessfully sought an objective method for apportioning liability for a single injury among multiple alleged tortfeasors. Kindynamic Theory is a tort theory that formally presents such a method.
Keywords: tort, risk, liability, epistemic possibility, risk prioritization, decision analysis, joint tortfeasor liability, evidence-based logic, EBL
JEL Classification: K13, D81, D61, D62, D80, D83, K32, Z00
Suggested Citation: Suggested Citation
Guzelian, Christopher P., The Kindynamic Theory of Tort. Indiana Law Journal, Vol. 80, pp. 987-1036, 2005. Available at SSRN: https://ssrn.com/abstract=619683