The Remoteness Doctrine: A Rational Limit on Tort Law

An individual or corporation should be subject to liability when it commits an act that directly harms another. But the effects of a wrongful act can reach beyond the person who is directly harmed, and adversely affect persons far removed from the event. At some point, imposition of liability becomes too tenuous, or remote. In these situations, the "remoteness doctrine" provides a rational limit on tort law. This article first traces the historical development and use of the remoteness doctrine, and then explains how some courts recently have rejected the doctrine in order to impose tort liability on so-called "unpopular" defendants. One example is the state attorneys general tobacco litigation, in which some courts allowed states to assert a new, "independent" cause of action to recover monies allegedly expended on account of direct harm to others, i.e., individual smokers. This dramatically increased the states' chances of winning the lawsuits: the states were not bound by traditional subrogation principles and thus were not faced with certain defenses and legal rules which historically defeated claims by individual smokers. However, a neutral application of the traditional legal principles that support the remoteness doctrine would bar such independent claims by the states. While the state tobacco litigation has been settled, the tension between the remoteness doctrine and some courts' desire to impose liability on unpopular defendants still remains. State officials have indicated their willingness to pursue other "unpopular" industries with similar new legal theories. But the state attorney general cases appear at this point to be unique. When plaintiffs' lawyers have tried to bring cases on behalf of foreign countries, unions, Indian tribes, health insurers and others and have attempted to persuade courts to scrap the remoteness doctrine, they have generally failed. Their very bringing of such cases against tobacco companies empirically demonstrates why the doctrine exists in the first place. Allowing independent claims for indirect economic harms leads to an avalanche of such claims and liability that is totally disproportional to the defendant's alleged wrongful conduct. The toughest question is whether the remoteness doctrine should simply be set aside for some defendants. The basic principle of equal justice under law strongly suggests that it should not be.