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Yehuda Adar & Ronen Perry, Negligence Without Harm, __ Geo. L.J. __, (forthcoming), available at SSRN.

I like papers that go against well-established conventions, theories, and practices–papers that punch up. Such is Yehuda Adar’s and Ronen Perry’s (hereinafter A&P) new paper titled: Negligence Without Harm, which argues that victims could sue and receive remedies for a tort of negligence even if they have not suffered any harm.

For at least a century, every first-year common law student has known that the tort of negligence is comprised of four elements: duty of care, breach of duty, causation, and harm; and that to win on a negligence claim, the plaintiff must prove all these elements (as well as to overcome defenses such as contributory negligence).

Over the years, scholars have attacked this four-element orthodoxy. Some have argued against the need for (or at least for a very broad understanding of) the duty requirement (think Holmes, Andrews in Palsgraf, Prosser, or the Restatement (Third) of Torts), against the need for the breach requirement (think about Richard Epstein’s support of strict liability), or even against causation (both factual and legal). Some have even argued that we could or should do away with tort law entirely (think Stephen Sugarman or Jules Coleman).

As the title of their paper suggests, A&P attack the harm element. A&P argue that to win a negligence claim, the plaintiff should not be required to prove any harm–not because in some cases harm is hard to prove, but because in all cases harm should not be a necessary element of the tort of negligence. Indeed, many non-negligence torts (libel, trespass, false imprisonment, to name a few) do not require harm (or at least its proof). A&P propose to add negligence to this list. For A&P, negligence should be actionable per se.

The motivation behind A&P’s paper is to deal with situations like Michael Buckley’s, a railroad pipefitter who was negligently exposed to asbestos for three years while working for a railway company. Buckley did not have any symptoms, and the U.S. Supreme Court rejected his claims for negligent infliction of emotional distress or medical monitoring costs (Metro-N. Commuter R.R. v. Buckley, 521 U.S. 424, 426–47 (1997)). The railroad conceded that it had negligently exposed Buckley to asbestos. What worries A&P is that under existing negligence doctrine, Buckley could not pursue an injunction to stop that exposure and could not even seek any monetary award to vindicate his right to a reasonable level of physical security. And without any such remedy, it is impossible to incentivize the employer to take reasonable precautions, prevent the employer’s unjust enrichment, or impose punitive damages for the allegedly reckless conduct. Why would such claims fail? Because negligence is not actionable without harm.

To be sure, scholars have long argued that imposing unreasonable risk is problematic even before harm has manifested. They have tried to deal with the issue within the four-elements orthodoxy, however, either by conceptualizing the risk as a cognizable harm in and of itself, by arguing it caused another, already materialized, emotional or economic harm, or by calling for some generalized version of the “loss of chance” doctrine for torts falling even outside of medical malpractice. A&P go beyond these responses and ask us to stop pretending that risk is harm. Instead, they would drop the harm element entirely.

There are three strands to A&P’s argument. The first strand is analytical. A&P show it is incoherent to call conduct negligent only when harm has manifested because given the formal structure of the tort of negligence, breach must precede harm. For A&P, this means that tort doctrine regards negligence as wrongful per se, irrespective of any ensuing harm. Insisting on harm, they argue, “is equivalent to stating that absent harm no duty was breached, and no wrong was committed against the complaining party.” (P. 14.) But “[i]f the negligent breach of duty is not wrongful per se, what makes the harm resulting from such breach wrongful?” (P. 14.) Therefore, in their view,

“[E]ither breach of duty through negligent conduct is legally wrongful, in which case harm turns out to be inessential for legal action; or harm is essential, in which case no pre-injury conduct, as blameworthy as it might be, can be deemed a legal wrong. The two presumptions cannot logically co-exist.” (P. 15.)

The second strand of their argument attempts to show that fairness-based theories of tort law get it all wrong when they require harm. For A&P, exposing another person to foreseeable unreasonable risk is an interpersonal moral wrong irrespective of its consequences. Negligence, in other words, is a moral wrong as between the risk-creator and the risk-bearer, irrespective of harm. To be sure, it is not that harm has no moral significance, but rather that harm should be a prerequisite for compensation, not for actionability. For them, negligent conduct is not less infringing, disrespectful, or threatening if the risk does not materialize. As they put it, “To flatly deny that there could or should be any right of redress for exposure to foreseeable unreasonable risk comes very close to the morally objectionable idea that people are free to breach legal duties, subject only to the contingent obligation to pay compensatory damages if harm ensues.” (P. 25.) But this Holmesian approach is exactly what efficiency-oriented scholars accept. So, we now turn to them.

The third strand in A&P’s argument is that efficiency-oriented scholars can live well with risk-based damages rather than harm-based ones. Does it matter whether a tortfeasor pays ex ante damages in the amount of PL with probability 1 (where P is the probability of the loss and L is the seriousness of the loss), or instead expects to pay L ex post with probability P? The expected liability after all is the same, and in both cases the tortfeasor is incentivized to take the same level of (optimal) precautions. Of course, plaintiffs cannot get both compensation for the risk before it materializes and for the harm after it materialized. Plaintiffs will have to choose between the two remedies and sometimes might regret their choices. But from a deterrence perspective, compensating for negligence that does not cause harm can generate optimal deterrence.

In terms of practical recommendations, A&P would allow victims of unreasonable (but unmaterialized) risk to obtain, within the framework of a negligence lawsuit, a range of pre-injury preventative remedies such as injunctions to remove the risk, punitive damages, or risk-based damages.

In their paper, A&P deal with various counterarguments and theories and expose some of the critiques’ weaknesses. A&P cannot, of course, respond to all possible questions and criticisms either small or large. A smaller question would be when a statute of limitations should start to run. Currently, it starts in relation to the harm, but what happens when the harm element is no longer needed? The bigger question left for a better occasion is whether, given the deficiencies of the existing tort system, it is worth keeping tort law at all. Perhaps we should instead aim at having a more robust, public or private-based, system for dealing with accidents, as many have argued. (See for example my arguments for such a solution in Ronen Avraham & Issa Kohler-Hausmann, Accident Law for Egalitarians, 12 Legal Theory 181 (2006).)

At the end of the day, A&P challenge philosophers, tort theorists, and law and economics scholars. And by challenge, I mean A&P claim these scholars all get it wrong when they insist on the harm element. And that is what I had in mind when I wrote that they punched up. It is not that the idea of negligence without harm has not been floated before, but it has not been defended so vigorously for a very long time. Whether tort scholars of all flavors agree with A&P or not, Negligence Without Harm deserves a reading. I hope this Jot helps initiate a lively debate on their proposals.

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Cite as: Ronen Avraham, Punching up on the Tort of Negligence, JOTWELL (November 25, 2022) (reviewing Yehuda Adar & Ronen Perry, Negligence Without Harm, __ Geo. L.J. __, (forthcoming), available at SSRN), https://torts.jotwell.com/punching-up-on-the-tort-of-negligence/.