IT HAS long been a fundamental tenet of American tort law that a cause of action requires an injury. In recent years, however, many courts have loosened this requirement significantly, so that a host of causes of action are recognized now in the absence of a quantifiable injury. Speculative or even phantom "harms" now can form the basis of protracted and expensive litigation. No manufacturer, insurer or professional service provider can ignore this unfortunate trend, which must he examined so as to alert defense practitioners as to possible defense theories.
A. Injury and Harm
The English word "tort" derives from the Latin word "tortus," meaning "twisted," and the French word "tort," meaning "injury or wrong." In essence, the purpose of tort law is to make an injured party whole. Thus, tort law imposes duties on individuals to prevent the injury of others. (1)
The Restatement (Second) of Torts defined the terms "injury," "harm" and "physical injury" in accordance with the common understanding of those terms. According to Sections 7(1), 7(2) and 7(3) of the Restatement (Second), "injury" denotes "the invasion of any legally protected interest of another." "Harm" is defined liberally as "the existence of loss or detriment in fact of any kind to a person resulting from any cause." "Physical harm" means then "physical impairment of the human body, or of land or chattels."
In 2001, the American Law Institute sought to clarify the definition of "physical harm" in Section 4 of Tentative Draft No. 1 of the Restatement (Third) of Torts, "Liability for Physical Harm," by adding the sentence, "The physical impairment of the human body includes physical illness, disease, and death." However, from Comment a to that section, it does not appear that the ALI intended any significant change in the traditional understanding of "physical harm" as set out in the Restatement (Second). It remains the case that an injury results from the infliction of some harm, even though an injury may result absent any harm.
A "harmless" injury, however, is actionable only because the law recognizes and permits a cause of action. For example, a plaintiff is "injured" under the common law when a defendant trespasses on the plaintiff's property. The law allows the plaintiff to recover, even if the defendant's intrusion is "beneficial, or so transitory that it constitutes no interference with or detriment to the land or its beneficial enjoyment," to quote Comment a to Section 7 of the Restatement (Second). (2) Conversely, a harm may exist without a legal injury or the invasion of a legally protected interest. For example, when a friend or family member dies of natural causes, there is no legally protected injury despite the loss. (3)
To maintain a cause of action in tort, a plaintiff usually must prove that a defendant invaded the plaintiff's legally protected interest, and that this resulted in harm to the plaintiff. According to Comment d to Section 7 of the Restatement (Second), emotional distress alone is not actionable unless there are physical consequences. Usually the plaintiff also must show that the resulting harm is not remote, speculative, hypothetical or uncertain. (4)
Nevertheless, recent trends have allowed plaintiffs to expand the Restatement (Second) definition of "harm" to cover injuries that are speculative or that exist only in the minds of those claiming them. Allowing plaintiffs to relax or eliminate the burden of proving actual injury and harm renders meaningless the singular purpose of tort law: to make whole a plaintiff who has sustained an actual injury.
B. Actual Injury Requirement
Traditionally, there was no cause of action in tort unless there was actual loss or damage resulting to the interests of another. For example, the Fifth Circuit has stated, "While the sale of a defective product creates a potential for liability, the law grants no cause of action for inchoate wrongs. …