Unrealized Torts

Currently, lawyers and courts are struggling with tort suits brought by plaintiffs who seek compensation even though they have not suffered any bodily harm or manifested symptoms signaling the onset of a disease. Future injury claims should not be regarded as pointing toward the recognition of tort liability for inchoate wrongs. To the contrary, a tort plaintiff must establish the occurrence of a realized wrong before liability may attach. Heightened risk does not, as a matter of existing negligence law, suffice to generate a tort cause of action in the plaintiff. Conceptualizing heightened-risk claims in terms of emotional distress is a mistake because the whole category of negligent infliction of emotional distress is infested with confusions. This approach to the problem of liability for future injuries stands in contrast to Justice Holme's approach - and the approach employed by the majority of leading tort scholars.