Liability for Increased Risk of Harm: A Lawyer’s Response to Professor Shafer

Abstract

Tort doctrine, which insists on proof of causation by a preponderance of the evidence, frustrates two of tort law’s principal objectives — deterrence of harmful behavior and the facilitation of corrective justice — when applied to cases in which causation is extraordinarily difficult, if not impossible, to determine. Causation problems are particularly complex in cases where plaintiffs allege that their injuries result from exposure to drugs or other chemicals. Professor Shafer’s suggestion, which advocates allowing such plaintiffs to recover simply on a showing of increased risk of injury, is a provocative attempt to correct the inadequacies posed by current doctrine, and is an inspiring starting point for rethinking whether and to what extent tort doctrine must change.

I thank Myriam Gilles, Ellen Relkin, Stewart E. Sterk and, most of all, Alan Wolf, for vigorous and thought-provoking discussions that inspired much of this comment.