Not vaccinating = failure to reasonably avoid polluting

|The Volokh Conspiracy |

A lawyer friend of mine passed along this idea,

New cause of action: Tortious Non-Vaccination.

This is when a person who could be vaccinated but chooses not to (or his parents choose not to) becomes infected and then infects someone else who could not be vaccinated such as a someone with leukemia or some other immune deficiency or sensitivity to vaccinations.
What victims of Tortious Non-Vaccination should do is file a complaint seeking to certify a defendant class action and bring a claim against all Tortious Non-Vaccinators [who had gotten the disease].

I think the kind of burden of proof shifting along the lines of Summers v. Tice would be appropriate. Thus, here, a member of the defendant class would have the opportunity to, say, prove that he could not have infected anyone.

[A]nd since it's a negligence claim, you target the homeowners insurance policy. Anti-vaxers insurance rates will rise to internalize the cost of non-vaccination.

Summers v. Tice is a famous tort case in which plaintiff was allowed to recover from his two fellow hunters, when he was injured by one of them but it wasn't clear which one. Usually, a plaintiff has to show that there's a greater than 50% chance that the particular defendant he is suing caused his injury; but in this instance the court relaxed the requirement. (I include an edited version of Summers below.)

I'm skeptical about my friend's theory. Summers, I think, is a limited exception to the general tort law rule that the plaintiff must show that his injury was likely caused by the defendant. And I doubt that Summers would be extended to a situation such as communicable disease, given how unrelated and variegated the potential tortfeasors are, how many there are, and how unlikely each one is to have injured this particular plaintiff.

I agree that if you know that D has infected P, and D failed to take reasonable precautions to prevent this (e.g., getting vaccinated), this would be tortious under normal negligence principles. (This is often litigated in sexually transmitted disease cases, but historically that came out of other communicable disease cases, where the source of the infection was known; the principle dates back to the late 1800s and early 1900s.) But if a plaintiff is suing everyone who hasn't been vaccinated and has contracted the disease—some of whom had more serious forms of the disease and some of whom had less serious forms, some of whom spent a lot of time during their illness around other people and some of whom spent less, and nearly of all whom are likely not to have caused plaintiff's illness, directly or indirectly—I don't think the Summers theory would or should apply to defendants.

Indeed, this pretty closely tracks the way the law deals with pollution. In some situations, particular polluters can indeed be sued under general tort law principles for harm to particular plaintiffs. But in large part because of the difficulty proving causation, the tort route is often unavailable. The law has (generally) dealt with this not by relaxing the causation requirement, but by setting up a regulatory scheme requiring polluters to take various steps to diminish pollution.

And I think pollution in general is a good metaphor for non-vaccination. Factories sometimes emit chemical pollutants. Factory owners have a legal duty to take various reasonable steps to reduce the risk and magnitude of such emissions.

Human bodies sometimes emit biological pollutants. It makes sense that humans would have a legal duty to take reasonable steps to reduce the risk of such emissions. In the process, they also on balance help themselves, because the pollutants hurt them first. But they also have a moral and legal duty to take reasonable steps to protect others against the pollution that they could inadvertently emit.

For some more thoughts on immunization, liberty, and safety, see this thread, which arose in the specialized context of immunization against HPV, which is a largely sexually transmitted disease. The arguments there (especially in the Libertarianism and Communicable Disease post) strike me as even more apt for more casually transmitted diseases.

* * *

Here is an edited version of Summers v. Tice:

Plaintiff's action was against both defendants for an injury to his right eye and face as the result of being struck by bird shot discharged from a shotgun. The case was tried by the court without a jury and the court found that on November 20, 1945, plaintiff and the two defendants were hunting quail on the open range. Each of the defendants was armed with a 12 gauge shotgun loaded with shells containing 7½ size shot.

Prior to going hunting plaintiff discussed the hunting procedure with defendants, indicating that they were to exercise care when shooting and to "keep in line." In the course of hunting plaintiff proceeded up a hill, thus placing the hunters at the points of a triangle. The view of defendants with reference to plaintiff was unobstructed and they knew his location. Defendant Tice flushed a quail which rose in flight to a ten foot elevation and flew between plaintiff and defendants.

Both defendants shot at the quail, shooting in plaintiff's direction. At that time defendants were 75 yards from plaintiff. One shot struck plaintiff in his eye and another in his upper lip. Finally it was found by the court that as the direct result of the shooting by defendants the shots struck plaintiff as above mentioned and that defendants were negligent in so shooting and plaintiff was not contributorily negligent….

The one shot that entered plaintiff's eye was the major factor in assessing damages and that shot could not have come from the gun of both defendants. It was from one or the other only….

When we consider the relative position of the parties and the results that would flow if plaintiff was required to pin the injury on one of the defendants only, a requirement that the burden of proof on that subject be shifted to defendants becomes manifest. They are both wrongdoers both negligent toward plaintiff. They brought about a situation where the negligence of one of them injured the plaintiff, hence it should rest with them each to absolve himself if he can.

The injured party has been placed by defendants in the unfair position of pointing to which defendant caused the harm. If one can escape the other may also and plaintiff is remediless. Ordinarily defendants are in a far better position to offer evidence to determine which one caused the injury….

In a quite analogous situation this Court held that a patient injured while unconscious on an operating table in a hospital could hold all or any of the persons who had any connection with the operation even though he could not select the particular acts by the particular person which led to his disability. Ybarra v. Spangard. There the Court was considering whether the patient could avail himself of res ipsa loquitur, rather than where the burden of proof lay, yet the effect of the decision is that plaintiff has made out a case when he has produced evidence which gives rise to an inference of negligence which was the proximate cause of the injury. It is up to defendants to explain the cause of the injury.

It was there said: "If the doctrine is to continue to serve a useful purpose, we should not forget that 'the particular force and justice of the rule, regarded as a presumption throwing upon the party charged the duty of producing evidence, consists in the circumstance that the chief evidence of the true cause, whether culpable or innocent, is practically accessible to him but inaccessible to the injured person.'" Similarly in the instant case plaintiff is not able to establish which of defendants caused his injury….