Recovery for Increased Risk of Developing a Future Injury From Exposure to a Toxic Substance

June 1989
Citation:
19
ELR 10256
Issue
6
Author
Donald F. Pierce

Editors' Summary: One of the traditional principles of tort law states that a cause of action is allowed only if a present injury exists. This principle has been gradually eroded as an increasing number of courts in toxic tort cases have allowed plaintiffs to recover for the increased risk of developing a disease in the future as a result of exposure to a toxic substance. The author outlines the elements that a plaintiff must establish to recover for an increased risk of future harm, and discusses the types of evidence plaintiffs may introduce to meet their burden of demonstrating that the toxic exposure more likely than not will lead to future harm. The author concludes that there will be a growing call for legislative reform as the traditional tort machinery struggles to cope with the complexities of future harm claims.

Mr. Pierce is a partner with the law firm of Hand, Arendall, Bedsole, Greaves & Johnston, in Mobile, Alabama. The outstanding contributions of Herbert Harold West Jr., and Archibald T. Reeves IV, of Hand, Arendall, Bedsole, Greaves & Johnston, in the preparation of this paper are acknowledged with appreciation.

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