The prospect of tort litigation against private parties has been gaining increasing attention by lawyers. While only three such cases have been filed thus far, observers (including the organizers of this symposium) clearly expect the number to increase significantly. Indeed, if successful, these and future cases will have a huge impact on the industries sued and, as hopeful lawyers have mused, could make the tobacco litigation look small by comparison. But will these cases succeed? As law students all dutifully learn in their first year Torts class, a prima facie negligence claim must satisfy four elements - duty, breach, causation, and injury. Most discussion and analysis of climate change cases to date have focused on the third and fourth elements of causation and injury. How can plaintiffs persuasively link the particular emissions of cars driven one place with reduced snow pack somewhere else? And, even if a causal link can be established between the offending action and the harm, what is the proper measure of the emitter's liability in the face of multiple sources of greenhouse gases over an extended time period? These are challenging issues, and surely deserve careful attention. What remains surprising, though, is that little beyond passing mention has been written about the first two elements - the duty of care and its breach. Suppose one could establish that emissions from a utility company or an automobile manufacturer's cars proximately caused greater storm surges that, in turn, harmed a particular coastal community, or proximately reduced snow pack and led to water shortages for a specific farming community. Key questions still remain. Did the utility or car manufacturer owe a duty of care to these specific communities? If so, what was the nature of that duty and was it breached? To improve our understanding of the short and long-term potential for climate change tort litigation, this article focuses on the duty of care and its breach. The first section addresses general doctrine. What role does the duty of care play in tort actions? The second section then explores the likely scenarios for tort climate actions, including a summary of the tort-based actions brought thus far. Who are the likely plaintiffs and defendants? How have litigants attempted to satisfy the duty of care elements in climate litigation? The final sections assess the duty of care for a range of tort actions-negligence, product liability, private nuisance and public nuisance-that may in the future form the basis of climate-based claims.
James Salzman and David Hunter, Negligence in the Air: The Duty of Care in Climate Change Litigation, 156 University of Pennsylvania Law Review 101-154 (2007).