The uninjured plaintiff: new frontiers of liability: defense counsel must prepare for tort claims based on theories that are not part of the traditional history and requirements of tort law.

• Author: Peisch, Thomas E.

IT HAS long been a fundamental tenet of American tort law that a cause of action requires an injury. In recent years, however, many courts have loosened this requirement significantly, so that a host of causes of action are recognized now in the absence of a quantifiable injury. Speculative or even phantom "harms" now can form the basis of protracted and expensive litigation. No manufacturer, insurer or professional service provider can ignore this unfortunate trend, which must he examined so as to alert defense practitioners as to possible defense theories.

PRECEDENTS

1. Injury and Harm

   The English word "tort" derives from the Latin word "tortus," meaning "twisted," and the French word "tort," meaning "injury or wrong." In essence, the purpose of tort law is to make an injured party whole. Thus, tort law imposes duties on individuals to prevent the injury of others. (1)

   The Restatement (Second) of Torts defined the terms "injury," "harm" and "physical injury" in accordance with the common understanding of those terms. According to Sections 7(1), 7(2) and 7(3) of the Restatement (Second), "injury" denotes "the invasion of any legally protected interest of another." "Harm" is defined liberally as "the existence of loss or detriment in fact of any kind to a person resulting from any cause." "Physical harm" means then "physical impairment of the human body, or of land or chattels."

   In 2001, the American Law Institute sought to clarify the definition of "physical harm" in Section 4 of Tentative Draft No. 1 of the Restatement (Third) of Torts, "Liability for Physical Harm," by adding the sentence, "The physical impairment of the human body includes physical illness, disease, and death." However, from Comment a to that section, it does not appear that the ALI intended any significant change in the traditional understanding of "physical harm" as set out in the Restatement (Second). It remains the case that an injury results from the infliction of some harm, even though an injury may result absent any harm.

   A "harmless" injury, however, is actionable only because the law recognizes and permits a cause of action. For example, a plaintiff is "injured" under the common law when a defendant trespasses on the plaintiff's property. The law allows the plaintiff to recover, even if the defendant's intrusion is "beneficial, or so transitory that it constitutes no interference with or detriment to the land or its beneficial enjoyment," to quote Comment a to Section 7 of the Restatement (Second). (2) Conversely, a harm may exist without a legal injury or the invasion of a legally protected interest. For example, when a friend or family member dies of natural causes, there is no legally protected injury despite the loss. (3)

   To maintain a cause of action in tort, a plaintiff usually must prove that a defendant invaded the plaintiff's legally protected interest, and that this resulted in harm to the plaintiff. According to Comment d to Section 7 of the Restatement (Second), emotional distress alone is not actionable unless there are physical consequences. Usually the plaintiff also must show that the resulting harm is not remote, speculative, hypothetical or uncertain. (4)

   Nevertheless, recent trends have allowed plaintiffs to expand the Restatement (Second) definition of "harm" to cover injuries that are speculative or that exist only in the minds of those claiming them. Allowing plaintiffs to relax or eliminate the burden of proving actual injury and harm renders meaningless the singular purpose of tort law: to make whole a plaintiff who has sustained an actual injury.

2. Actual Injury Requirement

   Traditionally, there was no cause of action in tort unless there was actual loss or damage resulting to the interests of another. For example, the Fifth Circuit has stated, "While the sale of a defective product creates a potential for liability, the law grants no cause of action for inchoate wrongs." (5) In addition, the majority of courts has required a showing of physical harm before allowing recovery for emotional distress, even when that distress results from an increased likelihood that the plaintiff will suffer serious future disease. (6) Historically, courts have held fast to the actual injury requirement, allowing plaintiffs to use the civil action to recover only for harm done. (7)

   An actual injury requirement also has been embedded in most statutes of limitation, which generally do not begin to run until the plaintiff has sustained an actual injury or has become aware of an actual injury. Otherwise, plaintiffs would be required to file suit before knowledge that an injury has arisen. Without that injury requirement, defendants would not know whether a plaintiff has based a claim on real injury or has brought a pre-emptive suit to preserve the right to sue in the future. (8) Therefore, the actual injury requirement has prevented fraudulent, vexatious and pre-emptive lawsuits (9)

   The origin of the actual injury requirement also is rooted in the concept of standing. For example, in order to bring claims arising under the U.S. Constitution or federal law, a plaintiff must establish standing. To do that, according to the U.S. Supreme Court in Lujan v. Defenders of Wildlife, a plaintiff first must show an "injury in fact," described as an "invasion of a legally protected interest, which is (a) concrete and particularized ... and (b) actual or imminent, not 'conjectural' or 'hypothetical.'" Second, there must be a "casual connection between the injury and the conduct complained of." That is, the injury has to be "fairly traceable" to the defendant's conduct. Third, it must be likely that the court will be able to redress the injury by a favorable decision. (10)

   The actual injury requirement also is consistent with the definition of harm in Section 4 of the Tentative Draft No. 1 of the Restatement (Third). Comment b to that section observes that a physical change to a person's body or property must be "detrimental" for physical harm to result. For example, the Reporter's Note states, the fact that a person's skin color changes to bronze on exposure to the sun does not "in the absence of any detriment, count as physical harm."

   Thus, the actual injury requirement has been firmly rooted in our jurisprudence and is based on traditional definitions of tort liability, limitations of action and legal standing.

3. Exceptions

   While the common law precedent has held fast to the actual injury requirement, there have been a few notable exceptions. (11) First, Section 907 of the Restatement (Second) recognizes so-called nominal causes of action, where the harm to the plaintiff is either nonexistent or insignificant, or where compensatory damages are speculative. In such cases, a court may award nominal damages or an insignificant sum of money. Second, a court may award nominal damages where harm is not a pre-requisite, such as in actions for trespass, breach of duty by a public officer or interference with a right to vote or hold public office.

   Trespass to land is another exception recognized in the common law's early precedents. The action in trespass was originally criminal in nature, and the king used the action to punish "forcible breaches of the king's peace." A guilty defendant was imprisoned or fined and held responsible for paying damages to the plaintiff. Although the criminal aspect of trespass disappeared at the end of the 17th century, the courts continued to allow the action, even though the plaintiff suffered no real injury. However, courts were "disinclined to extend the scope of trespass beyond the existing precedents perhaps because of the belief that ... the civil action should be used only to compensate for harm done."

   Other exceptions to the actual injury requirement include actions for assault, offensive but harmless battery, and false imprisonment. (12)

   Although the general concept of "harm" centers on the physical, courts and the Restatement (Second) have recognized recovery for emotional and mental distress. (13) The majority of these courts, however, require the plaintiff to prove some type of physical harm is linked to the distress before allowing recovery. (14) Proof of physical harm provides a type of guarantee that the distress is genuine. Pure emotional harm, on the other hand, is not necessarily quantifiable. (15) Nevertheless, some courts have begun to accept the idea that fear of future harm or disease may be actionable despite the absence of an actual injury. They require a showing that the fear is reasonable or reliable. (26)

   CRACKS IN THE DAM

1. Erosion of Present Physical Injury Requirement

   The erosion of the actual injury requirement appears to have begun in the early 1900s as the United States became more industrialized. New and innovative products were entering the market, but along with innovation came new types of harm. New products and new harms ultimately gave rise to what has become known as products liability law.

   One particular line of cases involved soft drink bottles that were contaminated with a foreign and unexpected object. In these precursors to modern-day products liability decisions, the plaintiffs recovered damages even though their actual injury was minimal. A paradigmatic case is Boyd v. Coca-Cola Bottling Works, a 1915 Tennessee Supreme Court case in which "a lady in delicate health" (to use the court's description) drank a portion of a Coca Cola from a bottle that was contaminated with a cigar stub and immediately became "intensely nauseated." The court held that the defendant, Coca-Cola Bottling Works, was liable, although the lady's injuries were minimal. (17)

   As early as 1961, a New York court in Battalla v. New York (18) allowed a minor plaintiff to recover for mental distress and anxiety arising from the defendant's negligence, although the plaintiff could not demonstrate a present physical injury. A state employee had failed to secure the plaintiff properly in a...