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

• Publication year: 2014

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

Anthony Dillof

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DOOMED STEAMERS AND MERGED FIRES: THE PROBLEM OF PREEMPTED INNOCENT THREATS IN TORTS

Anthony M. Dillof^*

Table of Contents

Introduction.................................................................................704

I. Some Views on the Problem....................................................708

A. Robert Peaslee...................................................................709
B. Restatement (Second) of Torts...........................................711
C. Joseph H. King...................................................................712
D. David Robertson................................................................714
E. David Fischer.....................................................................714
F. Stephen Perry.....................................................................716
G. John Goldberg...................................................................717
H. The Restatement (Third) of Torts and Michael Green......719
I. John Marks..........................................................................721
J. Summary.............................................................................723

II. Foreseeability and the Problem of Preempted Innocent Threats...................................................................724

A. The Argument From the General Rule That Unforeseeable Matters Are Not Relevant to Damage Determination.....................................................................725

1. The General Rule and its Exceptions...........................725
2. Unforeseeable Actual Harms and the Thin Skull Rule...............................................................................729

a. The Puzzle of the Thin Skull Rule...........................730
b. Physical Distinctions Between Falling Bricks and Thin Skulls.......................................................731
c. Foreseeability and Thin Skulls...............................735

B. Foreseeability and Fairness..............................................740

1. The Basic Argument.....................................................740
2. Evaluating the Argument..............................................741
3. An Alternative Argument..............................................743

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C. Summary............................................................................747

III. Limits to the Relevance of Preempted Innocent Threats...................................................................................748

A. The No-Windfall Principle.................................................748
B. Identity and Loss................................................................751
C. The Doomed Steamer Case Revisited................................756

Conclusion....................................................................................758

Introduction

This Article addresses the problem of preempted innocent threats. The problem arises in tort law and concerns the measure of damages due a plaintiff.

The problem of preempted innocent threats goes like this: A force, condition, or event is a threat if it may cause physical harm to a person or property. An "innocent threat" is a threat that arises either naturally or as a result of nontortious human activity. Lightning bolts, common diseases, cars reasonably driven, and guns fired with due care are innocent threats. A threat is "preempted" if, due to the existence of some force or condition, the threatened harm does not materialize. The question is: When determining the compensation due a tort plaintiff, to what extent is it relevant that the defendant's tortious conduct preempted an innocent threat to the plaintiff?

Some examples may help clarify the question above. There are some cases where it is clearly relevant that an innocent threat was preempted by the defendant's tortious conduct. For example, imagine P is a high school teacher in a large city. He hires a taxi to take him to his destination. The taxi is owned and operated by the driver, D. On the way, D drives negligently and the taxi crashes. Luckily, D escapes without serious injuries. P, however, is killed. Under tort law, P's estate is entitled to compensation from D for, among other things, the income P lost due to the accident.¹ But how much income

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is that? This depends in part on how long P would have worked if he had not been injured.² How long P would have worked, in turn, may be a function of what else might have prevented him from working. For example, in determining the extent of P's lost income, it would be relevant that, at the time of the accident, P was in the initial stages of an untreatable form of brain cancer and that, had it not been for the accident, P would have had to retire from work in six months.³ Where these facts can be established at trial, D's liability will be limited.⁴ He will be liable for six months' worth of lost wages (from the time of the accident up to the point when he would have retired due to cancer), but no more.⁵ In this case—which I shall refer to as the "Incurable Cancer Case"—the cancer was an innocent threat that could have caused P to retire and not receive future wages. It was, however, the taxi accident that actually prevented him from receiving his wages. The risk posed by the incurable cancer to P's career never materialized. Thus, the defendant's tortious conduct preempted an innocent threat, and, in light of this preempted threat, the plaintiff's recovery for lost wages will be greatly reduced from what it otherwise would have been.⁶

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The preceding analysis of the Incurable Cancer Case is well-established. Other cases involving innocent threats, however, are more controversial. Here is one: P is a high school teacher in perfect health. D owns and operates a taxi. P hires D to drive him to a cruise ship—which, following the tradition of the literature, I shall refer to as a "steamer."⁷ The steamer is to take him for a ten-day cruise to Alaska. On the way to the steamer, D drives negligently and gets into a serious accident. D escapes without significant injury, but P is permanently disabled. P sues D. When determining what compensation is due P, is it relevant that the cruise ship P would have taken struck an iceberg, sank, and all the passengers and crew were drowned? Assume that absent the taxi accident, P would have boarded the steamer and would have drowned, and that these facts can be established at trial. Should P—in what I shall refer to as the "Doomed Steamer Case"—be denied recovery for lost wages analogously to the partial denial of recovery for wages in the Incurable Cancer Case? Is a taxi accident's preempting of potentially career-ending cancer analogous to a taxi accident's preempting of a potentially career-ending steamer sinking?

Another controversial case is the Merged Fire Case. P owns property that borders on a forest in a public park. D is a camper in the forest. Due to the negligence of D in tending his campfire, a forest fire starts. The fire spreads towards P's property, threatening to engulf it. Before it reaches P's property, however, the fire merges with another equally large forest fire moving toward P's property. The second fire is a naturally occurring one, started by lightning. The two fires merge and P's property, including his house, is burnt to the ground. P sues D for negligence. Should P's recovery be reduced or eliminated because, in the absence of the fire started by D, the naturally occurring fire would have destroyed his house?⁸

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In exploring these questions, this Article proceeds as follows: Part I reviews the positions commentators have taken on the problem of preempted innocent threats in the context of the Doomed Steamer Case;⁹ Part II considers and evaluates arguments that seek to distinguish the Incurable Cancer Case, on one hand, from the Doomed Steamer Case and the Merged Fire Case, on the other hand, based on considerations of foreseeability.¹⁰ Part III seeks to limit the relevance of preempted innocent threats to damages based not on considerations of foreseeability, but based on the concept of identity.¹¹

As will be seen, this Article argues for a minority position—that for at least a significant subset of claims, including the Doomed Steamer Case, the preemption of an innocent risk by an actor's tortious conduct should reduce the amount of damages that a victim may recover in a tort action. Specifically, this Article will advance the claim that identity is a key concept in analyzing cases of preempted innocent threats. According to this Article, the preemption of an innocent threat should reduce the damages available to a plaintiff in those cases where, and only where, had it not been for the defendant's tortious conduct, the plaintiff would have suffered the very same, or identical, harm as the harm actually suffered. The "identity of harm test," it is contended, best fits with existing case law and our moral intuitions about how the law should resolve cases of preempted innocent threats.

The scope of this Article is limited in three respects. First, it will not discuss the very different issue of what should happen if the preempted threat is not innocent but arises from a third person's intentionally wrongful or negligent conduct. Second, it will not discuss the criminal law or contract law incarnations of the problem.¹² Third, it will focus on substantive rules of tort liability

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and damages and will not discuss evidentiary issues, such as the burden of proof associated with the implementation of the substantive rules.

I. Some Views on the Problem

Commentators have taken various positions on the problem of preempted innocent threats.¹³ Based on these positions, commentators can be roughly divided into two schools. Those in the first school emphasize that in cases like the Doomed Steamer Case, the...