Common Law: Toxic Torts

Key Concepts

  • Common law consists of judicial precedents accumulated over time—not a single authoritative statute.
  • The tort system provides a means for injured parties to be compensated by whoever is responsible, primarily through the award of monetary damages.
  • The most difficult issue in toxic torts is causation—general causation (is the substance capable of causing the disease?) and specific causation (did the particular exposure cause the particular case of the disease?). There is usually scientific uncertainty, and scientific experts are essential.

A tort is a civil wrong for which a court will provide a remedy. Toxic torts do not constitute a separate category of law; rather, the term denotes any tort that involves a toxic exposure. Toxic tort litigation is a challenge for the judicial system. For one thing, the volume of toxic tort lawsuits has mushroomed in recent decades. In addition, some exposures can affect huge numbers of people—think of oil spills and defective pharmaceuticals among others. Sheer volume creates a burden on the judicial system. For another, the causation issues in toxic torts are highly complex.


A civil wrong that the law recognizes as deserving a remedy


Common law consists of principles that have evolved over time from the accumulation of court precedents. The evolution is usually gradual, but it means that there are variations in the law over time. Common law is mostly state law. There are variations from state to state, but the major principles tend to be similar across jurisdictional boundaries. The major areas of common law are contract law, property law, and tort law.

common law

A body of law developed from the accumulation of judicial decisions

Federal common law is limited but highly relevant to the environmental context. It is limited to subjects of national concern, such as air and interstate waters. For example, courts have allowed a common law suit brought by one state to abate pollution emanating from another state.1

Tort law developed largely from common law, although now there are some statutes that support or limit tort actions. If the two are in conflict, statutory law supersedes common law. This section introduces principles and concepts of tort law in general. Later in the chapter we turn to the issues of toxic torts in particular.

What Is a Tort?

The word “tort” literally means “wrong” in French. In legal terms, a tort is a civil wrong—an invasion of one’s rights—that the law recognizes as worthy of redress. The three basic requirements of a tort claim are (1) a tortious (wrongful) act by the defendant, (2) an injury (bodily or otherwise) to the plaintiff, and (3) causation, meaning that the tortious act caused the injury.

A tort is a civil wrong, as distinguished from a criminal wrong (or violation). For a criminal violation, the government prosecutes the wrongdoer who, if found guilty, is subject to a criminal penalty such as a fine or imprisonment. For a tort, the injured plaintiff sues the “tortfeasor” (wrongdoer) who, if found liable, is ordered to pay damages (compensation) to the plaintiff. Notwithstanding this distinction, the same conduct can constitute both a tort and a crime. For example, someone who commits assault and battery can be sued in tort by the injured victim as well as prosecuted for a crime.

Purposes of the Tort System

The purposes of the tort system are justice for the injured person and deterrence of harmful conduct by tortfeasors. When someone is injured due to the wrongful acts of another, our sense of fairness dictates that the burden of the harm should be shifted, to the extent possible, to the person at fault. The tort system is the means of achieving this in our society—through a lawsuit decided on the basis of evidence by an impartial court and jury. The tort system is imperfect and vulnerable to abuse, but it is better than the days when such disputes were resolved by force, or the injured person was left with no remedy at all.

The second purpose of tort law is to deter behaviors contrary to the public interest. Careless driving is an undesirable behavior. Making a defendant pay for the consequences helps deter that defendant and other drivers from such undesirable conduct.

Burden of Proof

As with most civil actions, the plaintiff has the burden of proving all necessary facts by a preponderance of the evidence, also called the more-likely-than-not standard. This means the jury must find the plaintiff’s evidence more convincing than the defendant’s—at least enough to tip the scales slightly in plaintiff’s direction. If the evidence is of equal weight on both sides, the plaintiff loses.

preponderance of the evidence

A standard of proof requiring the party with the burden to prove that its version of the facts is at least slightly more likely to be true than the other party’s version


In awarding a remedy to a plaintiff, the tort system’s goal is to “make the plaintiff whole”—that is, to return the plaintiff as closely as possible to the status quo that existed before the injury. Of course, a plaintiff who has lost an arm cannot be made whole in a literal sense. All the system can do is award monetary damages.

Compensatory Damages

Compensatory damages are intended to compensate the plaintiff for the losses associated with the injury. This is the most common tort remedy. The amount is determined by the jury (or judge, if there is no jury), based on the evidence of losses.

compensatory damages

A monetary award to compensate a plaintiff for losses associated with physical injury or other harm

In a bodily injury case, damages are awarded for past and future medical expenses and lost earnings. Damages can also be awarded for less tangible losses, such as pain and suffering. There is no objective way to measure such losses; the jury must simply use its judgment and common sense in assigning a dollar amount. If the victim dies, the injury is called “wrongful death” (rather than “homicide,” which is the language of the criminal law system). Damages can be awarded, among other things, for lost earnings that would have supported a dependent spouse and children, and also for the emotional distress of the surviving family.

If the injury is property damage, compensatory damages are usually based on cost of repair, but can also be based on loss of value due to the tort. Damages are also awarded for economic losses, for example, loss of use of a car until it’s repaired, or lost profits while a damaged factory is shut down.

Punitive Damages

Punitive damages are intended to punish the defendant, not compensate the plaintiff. They can be awarded only if the defendant’s conduct was willful, grossly negligent, or otherwise egregious. Punitive damages are awarded in addition to compensatory damage. They are also called exemplary damages, because the intent is to make an example of the defendant, in order to deter others from similar conduct.

Punitive damages

A monetary award excess to a plaintiff’s losses, intended to punish a defendant’s egregious conduct

exemplary damages

Another term for punitive damages

There is a great deal of controversy about punitive damages. One concern is that “runaway” juries will award huge amounts based on passion—anger at the defendant or sympathy for the plaintiff—rather than on a reasonable consideration of the facts. Some jurisdictions have adopted or discussed various ways to curb excessive awards, either through the courts or legislation.

Although punitive damages are not intended to compensate the plaintiff, it is nonetheless the plaintiff who receives them. The award of punitive damages can be viewed as a windfall for the plaintiff, whose losses have already been covered by compensatory damages. There is some sentiment that punitive damages, when awarded, should not go to the individual plaintiff. This is especially so in cases such as the asbestos litigation, where huge numbers of people were exposed. Large punitive damage awards to the plaintiffs who get to court first can bankrupt a corporate defendant, leaving nothing for those plaintiffs whose diseases develop later. In mass cases where the disease is slow to develop, and nobody knows how many people will ultimately get sick and deserve compensation, there is some support for putting punitive damages in a fund for all plaintiffs.2


A tort plaintiff can also seek an injunction—a court order requiring the defendant to do some designated act or to stop doing some designated act (see text box on Injunctive Relief, chapter 4). Injunctive relief is granted sparingly. A court will usually grant an injunction only if monetary damages are an inadequate remedy and an injunction will make a significant difference. For example, say a bar opens in a residential neighborhood, and a family sues because the loud music keeps them awake late at night. Monetary damages would be useless. If the court finds the claim meritorious, it could enjoin the operation of the noisy bar. Similarly, if a drilling rig erected and operated in a residential neighborhood causes noise, air pollution, dangerous truck traffic, and other harmful effects, a neighbor could sue to seek an injunction.

Contributory Negligence: What If the Plaintiff Is Partly at Fault?

Sometimes the plaintiff is partly at fault. For example, if a pedestrian was hit while jaywalking, a jury might decide that the pedestrian’s own negligence contributed to the accident. What happens then?

The old rule was absolute: any contributory negligence on the part of the plaintiff, no matter how slight, completely barred recovery. Over many years this all-or-nothing rule was increasingly seen as unfair, and society made a correction. Now, most jurisdictions recognize some form of comparative negligence, whereby the jury determines the percentage of fault attributable to the plaintiff, and the compensation awarded the plaintiff is adjusted accordingly. In some jurisdictions, the newer rule comes from the evolution of common law, and in some jurisdictions it comes from legislation.

contributory negligence

Negligence of a plaintiff that is a partial cause of his or her own injury

comparative negligence

The concept or rule that a tort plaintiff’s recovery will be reduced based on his or her contributory negligence

Gordon Gates3 was a millwright who worked for an independent contractor at a Texaco refinery for many years. He contracted and ultimately died from leukemia. The jury found that Texaco had negligently exposed him to unreasonably high levels of benzene, which was the major cause of his leukemia. The jury also found that the disease was partly attributable to the benzene he was exposed to from smoking cigarettes, which constituted contributory negligence. The jury awarded $3.4 million. This was reduced by 17 percent to account for the extent the jury found that smoking contributed to his disease and death.

Joint and Several Liability: What If There Are Multiple Defendants?

In some cases, there are two or more defendants whose tortious conduct contributed to the plaintiff’s injury. When multiple defendants are found liable, who pays? The traditional rule called joint and several liability. This means that the defendants are jointly liable for the full damage award, but also that each defendant is separately (“severally”) liable for the full amount. The purpose behind this rule was to fully compensate the plaintiff, even if one of the defendants could not pay. Under a rule of joint and several liability, the plaintiff can collect the full amount from any defendant; that defendant then has the right to proportional reimbursement from other defendants found liable.

joint and several liability

A legal rule that allows a plaintiff to collect 100 percent of the liability from any one of multiple defendants

Many jurisdictions, either by court decision or legislation, have modified this rule. In those jurisdictions, the jury assigns a percentage share of fault attributed to each defendant. Some jurisdictions now follow a pure several liability rule, whereby a defendant is liable only for its percentage share of the total judgment. Other jurisdictions have variations, for example, that a defendant cannot be required to pay more than double its percentage share of the total judgment. These modifications of a pure several liability rule provide the defendants some protection from overpaying, but at the same time give the plaintiff some protection in case some of the defendants are bankrupt or otherwise unable to pay their share.

What If the Injury Occurred on the Job?

Many toxic tort cases arise from work-related injuries. This is not surprising, because the workplace is where a large proportion of toxic exposures occur. What might surprise you is that the employer is not a defendant in these lawsuits.

Under state laws, employers are required to provide workers’ compensation insurance coverage to almost all employees. This insurance provides benefits to workers injured on the job for medical expenses and loss of earnings. Historically, an injured and perhaps disabled worker would commonly be fired and become destitute. Workers’ compensation laws arose to protect relatively powerless workers from these ills. Although there are variances from state to state, presumptions are in the worker’s favor, and payment is assured and usually automatic, with any disputes handled by a worker-friendly administrative system.

Workers’ compensation benefits are payable for any on-the-job injury—not just when the employer is at fault. Benefits are paid even if the injury was the worker’s own fault. There is a trade-off for assured, no-fault coverage: the employee is barred from filing a tort lawsuit against the employer. This is called the exclusive remedy rule, meaning that workers’ compensation benefits are the injured worker’s exclusive remedy against the employer. The rule does not, however, bar the injured worker from suing others. For example, an employee of a contractor can sue the owner of the premises for unsafe conditions (see text box on Gates v. Texaco). Or a worker might sue a chemical manufacturer for failure to give adequate warnings.

Sovereign Immunity: Can You Sue the Government?

The old saying “You can’t sue city hall” reflects the much older concept of sovereign immunity. Historically, the king, as the sovereign, was immune from claims by his subjects, no matter how egregious his conduct nor how severe their injuries. Today, in the United States, the rule of sovereign immunity still exists, although with important modifications. The key factor is whether or not the government is acting in its unique governmental capacity.

sovereign immunity

Refers to the rule that the state is not subject to lawsuit involuntarily

A statute called the Federal Tort Claims Act4 carves out exceptions to the rule of sovereign immunity. It allows a tort lawsuit against the federal government if the actions complained of consist of “ministerial” rather than governmental acts. An act is “governmental” if it involves exercising governmental powers or discretion. An act is “ministerial” if it is something that could be done by a private person. For example, the decision to issue permits required for operation of a nuclear power plant is an exercise of a governmental power. Neither the government nor its employees can be sued in tort for approving the permit. But if the government itself operates a nuclear power plant, it is doing something a private company could do. So if negligent maintenance by the government results in a radiation leak, people injured by the leak could sue the government for damages, the same as they could sue a private operator.

Federal Tort Claims Act

A federal statute that allows some tort lawsuits against the government

People who are unhappy with the government’s policy decisions can seek judicial review under statutory law (see chapter 2) or they can seek relief through political channels, such as the ballot box, but not through tort litigation. Don’t be confused by all the court cases you see where environmental groups or industry are suing the EPA. Those suits seek judicial review of agency actions or decisions—they are not tort actions for damages.

State tort claims acts, analogous to the federal act, partially waive the sovereign immunity of state and local governments. Sovereign immunity is waived only to the extent explicitly stated in the language of a tort claims act. These acts typically do not waive immunity with respect to no-fault liability or to punitive damages.


The term toxic tort is used to describe any tort involving a toxic exposure. Toxic torts encompass a broad spectrum of toxic exposures. The injury might arise from an accidental release of a toxic substance into the environment, such as an oil spill. It might be an intended release with unintended consequences, such as the exposure of American soldiers to Agent Orange in Vietnam. It might be a worker’s exposure to chemicals routinely used in the workplace. It might be the exposure of neighbors to pollution levels routinely emitted from a factory. It might be a resident’s exposure to formaldehyde from home construction materials and furnishings. It might be a side effect from a therapeutic drug. These are just a few examples.

toxic tort

A tort where the wrongful act consists of a toxic exposure

In some toxic tort cases, the injury consists of property damage, such as contamination of a well. Some toxic tort cases involve acute bodily injuries, such as chemical burns or asphyxiation from chemical fumes, which is analogous to the immediate and obvious injury of a pedestrian hit by a car. But most toxic tort cases involve diseases for which causation involves a great deal of scientific uncertainty. This creates special problems in toxic tort litigation, which will be discussed later in the chapter.


A tort is a breach of duty or invasion of someone else’s rights that the law deems deserving of a remedy. The common law recognizes numerous different tort theories—essentially invasions it deems compensable. This section will introduce some of the tort theories that are frequently used in toxic tort cases: negligence, strict liability for abnormally dangerous activities, public nuisance, strict products liability, trespass, and nuisance. Each of these tort theories (also called causes of action or claims) has its own criteria that, if met, will support a recovery by the injured plaintiff. The facts of a lawsuit may meet the criteria of more than one tort theory, and it is common for plaintiffs to assert multiple causes of action.


Negligence is the most common of all torts. A common definition for negligence is a breach of the duty to use reasonable (ordinary) care not to cause harm to others. Using more familiar language, it is a mistake, carelessness, but not egregious misconduct nor intentional harm. Most of us commit negligent acts every day, but usually with no untoward consequences. If you’re daydreaming and run a stop sign, the critical factor is whether you hit anyone.

The basic rule is that someone who acts negligently is liable to anyone who is injured as a result. The injury must be reasonably foreseeable—it cannot be such a remote occurrence that a reasonable person would not anticipate it. This is usually not a high hurdle. It is not necessary that the plaintiff’s specific injury be foreseen—simply that it be a type of harm that may naturally and foreseeably flow from the defendant’s conduct. The legal term for this is proximate cause—the word proximate reflecting that the relationship of cause and injury cannot be excessively remote.

proximate cause

Refers to the requirement that an injury must be reasonably foreseeable to be compensable under tort law

For simple negligence, a court will award compensatory damages, but not punitive damages.

Strict Liability for Abnormally Dangerous Activities

In certain circumstances, the common law imposes liability for harm resulting from one’s actions, regardless of fault. In these special areas, the defendant will be held liable even if there was no negligence or other breach of duty. This no-fault liability is called strict liability (or sometimes “absolute liability”). This section discusses one area in which the common law imposes strict liability—abnormally dangerous activities. As with all common law, there are variations among jurisdictions. But these are the general principles.

strict liability

Liability imposed regardless of fault