The Remoteness Doctrine: A Rationale For a Rational Limit on Tort Liability

Abstract

Since I had the great opportunity to begin teaching torts over three decades ago, I have learned that there are certain aspects to this wonderful subject that fascinate students. One of those aspects is the cornucopia of cascading tort law words, "new words" that the students had not known before.

Some of these words I call "tort fuel." They make tort law go faster. Strict liability is such a word; comparative negligence is another such term. When comparative negligence entered California law in the case of Li v. Yellow Cab, it swiftly ended an archaic, two century-old rule that made people lose cases even if they were one percent at fault.

But there are also "brake words" in tort law. These are words to limit tort law explosions and keep liability exposure from going all over the place and causing complete mayhem. Assumption of risk is a brake word. Why should somebody who absolutely knows there is a risk and fully understands it and decides to encounter it be entitled to collect money for the very harms caused by the very risk the person knowingly encountered?

Proximate cause is another brake word. Causation cannot extend forever. Duty is another. Even though somebody may be at fault and have proximately caused "harm," there may be public policy reasons why a duty is not owed to a particular plaintiff. In California, for example, for a period of time the California Supreme Court flirted with the idea of letting people recover damages for emotional harm because a loved one was injured, even though the claimant was not present when the loved one was hurt. After thirty years, the Supreme Court of California finally put the brakes on such a claim and held that there was no duty owed to such claimants. Sure, we may be sympathetic about the person's emotional harm, but should people who hear about a serious injury be allowed a monetary damage claim in addition to the very serious claim that is held by the injured person."

Sometimes the magic words of tort law so excite law students (and lawyers) that they embrace them too much. The words take on a life of their own, and one forgets the basic common sense that always should be applied in both life and in the law of torts. The words in themselves create no real magic, but are there to provide rational and reasonable guidelines.

I would like to discuss such a word today, "remoteness." It is a brake word in tort law, and provides a rational limit on tort claims. Unlike words such as "proximate cause," "duty," "comparative negligence," the terms "remoteness" or "remoteness doctrine" have not found a carefully articulated rationale in many judicial opinions.

The remoteness doctrine is sometimes used to dismiss claims-a court concludes that a claim is "too remote" to permit recovery. Today, I would like to share with you a rationale for the remoteness doctrine, and show why sound public policy sponsors its application in some of the most controversial cases of our day.