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ESSAYS

THE ANALYTICS OF DUTY: MEDICAL MONITORING

AND RELATED FORMS OF ECONOMIC LOSS

Mark Geistfeld*

INTRODUCTION

D ESPITE widespread recognition that "duty is the foundation

of all liability for negligence,"' modem torts jurisprudence has
tended to devalue the analytics of duty, treating duty as "a short-
hand statement of a conclusion, rather than an aid to analysis in it-
self."2 To be sure, duty depends on various factors that have been
identified by the courts, but these "factors are so numerous and so
broadly stated that they can lead to almost any conclusion."3 Con-
sequently, "no universal test for [duty] ever has been formu-
lated ....There is little analysis of the problem of duty in the
courts." 4
The lack of duty analysis ordinarily is not a problem. "In the
usual run of cases, a general duty to avoid negligence is assumed,
and there is no need for the court to undertake detailed analysis of
precedent and policy."5 The duty question is deemed to be impor-
tant only when the defendant's failure to exercise reasonable care
proximately caused injury to the plaintiff.6 A rule of no duty in

* Professor of Law, New York University School of Law. I am grateful to Bob

Rabin for his helpful comments.
'Dan B. Dobbs, The Law of Torts § 226, at 577 (2000).
'W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 53, at 358 (5th
ed. 1984). The development of modem views on duty analysis is described and criti-
cized in John C.P. Goldberg & Benjamin C. Zipursky, The Moral of MacPherson, 146
U. Pa. L. Rev. 1733 (1998).
'Dobbs, supra note 1, § 229, at 583. For a listing of such factors courts use to limit
duty,
4 see infra text accompanying note 32.
Keeton et al., supra note 2, § 53, at 358. This statement has become a "mantra" for
the courts. See Goldberg & Zipursky, supra note 2, at 1772-73 & n.154.
"Hamilton v. Accu-Tek, 62 F. Supp. 2d 802,818 (E.D.N.Y. 1999).
6 See Restatement of the Law Torts: Liability for Physical Harm (Basic
Principles)
§ 7 cmt. a (Tentative Draft No. 2,2002).

1921
1922 VirginiaLaw Review [Vol. 88:1921
these circumstances would absolve a negligent defendant of liabil-
ity, so duty analysis must be capable of explaining why some factor
justifies such a limitation of liability. Absent such explanation, duty
will continue to elude analysis in the courts.
A complete specification of duty analysis would require a com-
plete theory of tort law and its purpose. If the purpose of tort law is
to maximize wealth, for example, then duty analysis is reduced to
the question of which specification of duty maximizes wealth.7 This
type of duty analysis is difficult to formulate due to the ongoing
disagreement about the appropriate purpose of tort law. Fortu-
nately, a more limited form of duty analysis can be developed.
As a bedrock principle of negligence liability, duty must have an
analytical role immanent in the ordinary negligence case involving
bodily injury or property damage. The typical negligence case
therefore should reflect the rudiments of duty analysis. The ana-
lytics of duty can then be further developed by considering the
widely accepted limitations on duty for negligence claims seeking
recovery only for emotional distress or economic loss. By linking
changes in duty to changes in the type of claim, a conception of
duty may emerge that is robust enough to generate an analysis of
whether duty should encompass a certain type of claim not obvi-
ously governed by the well-established duty rules, such as negli-
gence claims seeking recovery only for medical monitoring or re-
lated forms of economic loss.8
Monitoring claims have become increasingly prominent as ad-
vances in technology have made possible early detection and moni-
toring of risk, and as federal courts have imposed limitations on
class actions that often force plaintiff classes to seek recovery only
for sufficiently uniform claims of medical monitoring or economic
loss.9 When confronted with claims to recover only the medical
costs of monitoring the unreasonable risk created by the defen-

'Cf. William M. Landes & Richard A. Posner, The Economic Structure of Tort Law
142 (1987) (concluding that "the duty concept is not helpful" for purposes of wealth
maximization).
'Such an analysis could not determine duty limitations applicable to all negligence
actions, such as the requirements of foreseeability and misfeasance.
'For a discussion of why "[the personal injury/medical monitoring distinction may
have a dispositive influence on the issue of class certification," see Elizabeth J.
Cabraser, Your Products Liability Hit Parade: A Class Torts "Top 20," 37 Tort & Ins.
L.J. 169,213 (2001).
20021 The Analytics of Duty 1923

dant's negligent conduct, most courts initially held that such claims
are encompassed by the tort duty. Recently, however, courts have
been more willing to limit duty and deny the claim." By contrast,
when confronted with tort claims seeking recovery only for repair
costs that would reduce the unreasonable risks attributable to the
defendant's negligence, most courts have denied such claims.11
Oddly, courts have treated the two types of claims differently, even
though each raises essentially the same duty question. This confu-
sion can be traced to the underdeveloped state of duty analysis.
Once the analytics of duty are developed, it becomes clear that the
reasons for limiting duty based on the form of loss do not apply to
negligence claims seeking recovery only for medical monitoring or
other forms of economic loss involving safety expenditures.
Part I will develop the analytics of duty in the context of the
typical tort case, explaining why duty is required for the analytical
coherence of negligence doctrine. Part II will then further develop
the analytics of duty by considering the well-established limitations
on duty. These limitations are usually justified by a concern that a
more expansive duty would be overly burdensome for potential in-
jurers, but the analysis reveals a more persuasive justification:
Limitations of duty for economic loss and emotional distress pro-
tect the individual interest in physical security by helping to ensure
that physically injured victims will receive compensation for their
injuries. Part III will then show why this reason for limiting duty
does not apply to properly framed negligence claims for medical
monitoring and related forms of economic loss.

I. THE ANALYTICAL ROLE OF DUTY

In its canonical form, the prima facie case of negligence involves
the four elements of duty, breach, causation, and damages.12 The
analytical role played by the element of duty is related to the re-
quirements of reasonable care, which may explain why courts and

"See infra notes 64-67 and accompanying text.

See infra notes 61-64 and accompanying text.
12 "Every state adheres to the four-element account, with perhaps two exceptions."
John C.P. Goldberg & Benjamin C. Zipursky, The Restatement (Third) and the Place
of Duty in Negligence Law, 54 Vand. L. Rev. 657, 658 & nn.1-2 (2001) (footnotes
omitted).
1924 VirginiaLaw Review [Vol. 88:1921
commentators often use "duty" to refer to both elements. 3 Duty,
however, is analytically distinct from the standard of care. Until
duty has been defined, the requirements of reasonable care cannot
be adequately specified.
To see why, consider the standard of reasonable care. According
to the Restatement (Second) of Torts, the standard of reasonable
care requires a determination of "whether the magnitude of the
risk outweighs the value which the law attaches to the conduct
which involves it."' 4 This determination is captured by Judge
Learned Hand's well-known formulation of the negligence stan-
dard: "if the probability [of injury] be called P; the injury, L; and
the burden [of a precaution that would eliminate this risk] B; liabil-
ity depends upon whether B is less than L multiplied by P: i.e.,
whether B < PL."'"
Like the Hand formula, any defensible formulation of the negli-
gence standard will balance or trade off the conflicting interests of
potential injurers and potential victims. In identifying the require-
ments of reasonable care, the reasonable person must consider
how the burden of a safety precaution (the B term) compares to
the protection that would be provided to the otherwise threatened
interests of potential victims (the PL term). 6 Reasonable care
therefore depends upon a comparison of the same interests de-
picted by the Hand formula, even if the way in which the compari-
son should be made (the weighting of the conflicting interests) is
not accurately described by the formula B < PL. Which interests
should be compared, rather than how they should be compared, is
the question that frames duty analysis. Consequently, the analytics
of duty can be developed in terms of the Hand formula, even if

"For discussion regarding usage of "duty," see Dobbs, supra note 1, § 226, at
577-78.
4 Restatement (Second) of Torts
§ 283 cmt. e (1965).
" United States v. Carroll Towing Co., 159 F.2d 169, 173 (2d Cir. 1947) (emphasis
added).
,6The reasonable person "give[s] an impartial consideration to the harm likely to be
done the interests of the other as compared with the advantages likely to accrue to his
own interests, free from the natural tendency of the actor, as a party concerned, to
prefer his own interests to those of others." Restatement (Second) of Torts § 283
cmt. e (1965).
2002] The Analytics of Duty 1925

that formula does not correctly state the way in which these inter-
ests should be compared. 7
A legal decision that the defendant has no duty with respect to a
particular risk only absolves the defendant and similarly situated
potential injurers of legal responsibility for risks of that type. Po-
tential injurers remain responsible for other risks. Hence, duty
analysis determines the risks to be evaluated by the standard of
care. Such analysis is obviously necessary. The risk threatened by
any course of conduct is a composite of numerous risks. The risk
term, PL, in the standard of care is not self-defining but requires
the elaboration supplied by duty analysis.' 8
By focusing on the foundational role of duty, the problem with
the prevailing conception of duty becomes apparent. Duty is cur-
rently deemed important only when the defendant's failure to ex-
ercise reasonable care proximately caused injury to the plaintiff,
serving an unusual liability-limiting role.19 This role of duty corre-
sponds to a model of negligence based on a generic duty of care
owed by all to all:
That model rejects the notion that a question exists as to whether
a given defendant owes a given plaintiff a duty of care. There is
always such a duty because the tort of negligence imposes a ge-
neric standard of reasonable care owed by all to all. The only
questions that require consideration under the model are: the
jury question of whether that generic standard of care was
breached in a manner that proximately caused the plaintiff harm,
and the judicial [duty] question of whether there is any public

17For example, the ensuing analysis is unaffected if the standard of care requires
any precaution that is not disproportionately burdensome for defendants, a standard
that can be expressed as requiring any precaution B unless B >> PL (where the term
"W" means disproportionately greater than). In my view, this type of negligence
standard is defensible for nonreciprocal risks threatening physical injury to a small
number of individuals in noncontractual settings. See Mark Geistfeld, Reconciling
Cost-Benefit Analysis with the Principle That Safety Matters More Than Money, 76
N.Y.U. L. Rev. 114, 145-53, 165-73 (2001).
'sRelatedly, tort law must determine measurement of the burden, B, in the standard
of care. See, e.g., Restatement (Second) of Torts § 292 (1965) (identifying relevant
factors for evaluating the interests furthered by the actor's conduct).
" See supra note 6 and accompanying text.
1926 Virginia Law Review [Vol. 88:1921
policy reason to override the default sanction that ordinarily re-
quires a defendant to compensate the plaintiff for that harm. 0
The model that relegates duty to an unusual liability-limiting
role mistakenly assumes there is a generic standard of care that ex-
ists independent of duty. Unless duty has been specified, the stan-
dard of care is indeterminate. Without duty, what limits the risks to
be included in the standard of care? Absent limitation, the ripple
effect of behavior in the world virtually ensures that any act or
failure to act will generate substantial risks, if not a virtual cer-
tainty of some injury at some time. The risk term, PL, in the stan-
dard of care becomes substantial, swamping the cost or burden, B,
of most any precaution that would have eliminated the risk. Given
a range of precautions that satisfy an indeterminate standard of
care, B < PL, and the corresponding large number of potential de-
fendants who failed to take such precautions, accident victims
could regularly find a defendant whose unreasonable conduct
proximately caused the injury.2 ' The concept of unreasonable con-
duct would be drained of meaning. To limit liability, these tort
claims would have to be barred on other grounds. The duty ques-
tion thus arises, making it routinely important.
For negligence doctrine to be coherent and meaningful, the risks
to be considered in evaluating the defendant's conduct must be

2' Goldberg & Zipursky, supra note 2, at 1769.

21According to a widely recognized rule of proximate cause, "[ain actor is not liable
for harm different from the harms whose risk made the actor's conduct tortious." Re-
statement of the Law Torts: Liability for Physical Harm, supra note 6, at § 29. This
rule could not be implemented without any limitations on duty. If "all risks created by
a defendant weigh in an assessment of his negligence, it would appear that any and all
harms that materialize from the defendant's conduct are within the category of risks
that make such conduct negligent." Heidi M. Hurd & Michael S. Moore, Negligence
in the Air, 3 Theoretical Inquiries in Law (Online Edition) 3, at 32-33 (July 2002), at
http://www.bepress.com/til/default/Vol3/iss2/art3. Proximate cause limitations there-
fore depend on duty limitations.
It does not follow, however, that liability can never be limited to only those harms
whose risks made the defendant's conduct negligent, the argument made by Profes-
sors Hurd and Moore. The problems they identify with this rule of proximate cause
are solved by the element of duty. The foreseeability limitation on duty, for example,
specifies the risks that make the defendant's conduct negligent. Each of these risks is
composed both of the probability of harm and type of harm. The probability depends
on the various ways in which the harm can occur. Specification of duty therefore nec-
essarily entails a description of the risk that is adequate for limiting liability to only
those harms whose risk made the defendant's conduct negligent.
2002] The Analytics of Duty 1927

identified-the role of duty. Once duty specifies the risks encom-

passed within the standard of care, that specification establishes a
relationship between the defendant's conduct and its impact on an
identified class of individuals. Automobile drivers do not owe a ge-
neric duty to the world; instead they have a duty to defined classes
of potential victims such as other drivers, pedestrians, and owners
of property near roadways. The relational nature of negligence,
embodied in the element of duty, corresponds to the behavioral as-
sumption that potential injurers, like drivers, need to focus and
prioritize their precautionary efforts, something that would be dif-
ficult to accomplish under a generic, nonrelational conception of
negligence.'
The relationships defined by duty typically are formed by the po-
tential injurer's actions that create foreseeable risks of harm to
foreseeable classes of potential victims.' In addition, duty often
depends on the nature of the threatened injury, which is the focus
of the present inquiry.
To analyze duty in terms of the type of harm, we can decompose
risk into the different types of individual interests that might be
harmed by the risky behavior: the interest in security of the body
and tangible possessions; intangible personal interests in emotional
tranquility, privacy, and reputation; and purely financial or pecuni-
ary interests.
The interest in physical security is the core concern of tort law. 4
Hence, the typical negligence case involves physical injury consist-

'See Goldberg & Zipursky, supra note 2, at 1830-32. Professors Goldberg and
Zipursky offer other arguments on behalf of the relational view of negligence but do
not discuss the analytic importance of duty.
2 See Restatement (Second) of Torts § 314 (1965) (stating that there is no duty for
mere failure to act); id. § 289 cmt. b (stating that the relevant act must "involve a risk
which the actor realizes or should realize"); id. § 281 cmt. c (stating that the relevant
act "must create a recognizable risk of harm to the other individually, or to a class of
persons-as for example, all persons within a given area of danger-of which the
other is a member").
4The most recent Restatement projects involving tort law are limited to the ques-
tion of liability for physical harm. See Restatement of the Law Torts: Liability for
Physical Harm (Basic Principles) § 4 cmt. b (Tentative Draft No. 1, 2001); see also
Thomas C. Grey, Accidental Torts: A Genealogical Study, 54 Vand. L. Rev. 1225,
1226-27 (2001) (identifying personal injury as the core concern of modern tort law).
The basic principles of tort law, however, cannot be adequately developed if the
analysis is limited to physical injury. See Martha Chamallas, Removing Emotional
1928 VirginiaLaw Review [Vol. 88:1921
ing of bodily injury or damage to tangible property. When the se-
curity interest has been harmed, duty includes the other two types
of interest. For example, a negligent driver who hits a pedestrian
must pay damages for the pedestrian's physical injuries, the emo-
tional harm of pain and suffering, and the economic harm of lost
wages and the like.'
In the typical case, then, the risk encompassed by the defen-
dant's duty decomposes into all three types of harms (to be de-
noted LPhysical' LEmotional, and LEconomic), leading to the following stan-
dard of care for LPhysical > 0:
(1) B < P * (L hysical---Emotional--Z o...ic)"

This duty often is called the "general duty" of care, so well es-
tablished that it does not require analysis in most cases.26 The lack
of analysis may explain why the desirability of including all three
types of harms in the duty of care is rarely questioned, even though
a duty encompassing all three interests is not obviously required by
the core tort concern of protecting the interest in bodily security. 7
A duty designed to protect only the security interest would yield a
standard of care B < P * (Lhysical), tailoring safety precautions to the
minimal amount needed to protect against harms to the person or
tangible property. The collateral harms caused by these physical in-
juries would not be compensated or protected by tort law, but

Harm from the Core of Tort Law, 54 Vand. L. Rev. 751, 753 (2001). This point be-
comes clear in the ensuing development of duty analysis.
2 See Restatement (Second) of Torts §§ 905-06 (1979).
26 See supra text accompanying note 5.
' Nor is such a duty obviously mandated by the goal of attaining optimal deter-
rence. The efficient level of deterrence requires a duty that forces potential injurers to
fully account for the social cost of the risk. The social cost of economic losses is not
necessarily equal to the economic loss suffered by a physically injured plaintiff. Con-
sider two individuals with similar labor skills, one employed and the other unem-
ployed. The employed worker is negligently disabled from working for six months
during a period when the economy is in a recession and experiencing less than full
employment. The unemployed worker replaces the injured worker for the six months.
As a matter of social value, the six-months wages lost by the employed worker do not
necessairly equal the full social cost, given that those wages are now paid to the previ-
ously unemployed worker. Hence it may be inefficient to fully compensate the eco-
nomic losses of accident victims. See Jennifer Arlen, Tort Damages, in 2 Encyclope-
dia of Law and Economics 682, 713-14 (Boudewijn Bouckaert & Gerrit De Geest
eds., 2000).
2002] The Analytics of Duty 1929
those harms affect interests other than the security of the plaintiff.
Why not limit the general duty of care in this manner?
One possible answer is that the interest in physical security is
not, in fact, the core concern of tort law. All three types of inter-
ests-physical security, emotional security, and economic secu-
rity-are included within the general duty because each interest is
equally worthy of tort protection. This answer, however, does not
satisfactorily explain the well-accepted limitations on duty for
stand-alone harms of emotional distress or economic loss. These
harms are not ordinarily included within duty, even though the as-
sociated interests in economic and emotional security merit protec-
tion in the event of physical injury. The nature of harm does affect
duty, so duty analysis must be capable of explaining the relation-
ship between duty and the type of harm.

II. DUTY LIMITATIONS FOR EMOTIONAL DISTRESS AND

ECONOMIC Loss
Historically, the duty of reasonable care has not encompassed
risks threatening only emotional distress or economic loss. Today
there is a limited duty with respect to such risks. By examining the
early rule of no duty and the subsequent rules of limited duty, the
analytics of duty can be further developed. The result is a concep-
tion of duty that straightforwardly explains the general duty of care
for cases involving physical injury and the limited duty for cases in-
volving only emotional distress or economic loss. The conception
reflects the premise that the core concern of tort law is the ade-
quate protection of physical security, protection that can be practi-
cally attained only by limiting the number of claimants in a negli-
gence case.

A. Emotional Distress
Consider again the driver who negligently hits a pedestrian, but
this time consider the bystanders and family members who suffer
emotional distress as a result. These third parties are foreseeable
victims of the negligence, yet the defendant may have no duty to
compensate their stand-alone emotional harms.
In the past, courts denied recovery for stand-alone emotional
harms, unless the defendant's act was not merely negligent but also
1930 VirginiaLaw Review [Vol. 88:1921
amounted to some other tort such as libel or slander.' This bar to
recovery has eroded over time, and today most courts allow recov-
ery for negligently inflicted emotional harm.29 Such recovery, though,
is limited in various ways, such as by the requirement that the
plaintiff be within the "zone of danger."' The limitations usually
take the form of limited duty rules: The negligent defendant is not
obligated to compensate for the injury because she had no duty
with respect to that type of harm.'
These limitations on duty seem arbitrary, and their judicial ra-
tionales do not clarify matters. According to courts, the reasons for
limiting duty include the difficulty of determining monetary dam-
ages for purely emotional, nonmonetary harms; the difficulty of as-
sessing the severity of emotional injuries; the difficulty of knowing
whether monetary damages meaningfully compensate emotional
injuries; and the difficulty of limiting the number of emotional
claims that can be brought as the result of a single tort."
The concerns regarding the computation and compensatory na-
ture of emotional distress damages are hard to defend given that
such damages are available in the ordinary negligence case involv-
ing physical injury.33 The separate concern about fraud is valid, due
to the possibility that stand-alone emotional distress claims are
more easily faked than other claims. That concern, though, does
not require a limitation of duty, as fraudulent claims could be ad-
dressed by more stringent standards of proof.' Indeed, these con-
cerns "have been answered many times, and it is threshing old
straw to deal with them."35 The only valid concern for limiting duty

2'See Dobbs, supra note 1, § 308, at 836.

See id. For a description of the evolution of tort law in this area, see Nancy Levit,
Ethereal Torts, 61 Geo. Wash. L. Rev. 136, 140-46 (1992).
' Formulations of this rule vary, but typically the plaintiff can recover for stand-
alone emotional harm if she was at risk of physical impact and suffered the emotional
distress as a result. See Dobbs, supra note 1, § 309, at 839-40.
31See Restatement of the Law Torts: Liability for Physical Harm (Basic Principles)
§ 6 cmt. d (Tentative Draft No. 1, 2001).
32
Dobbs, supra note 1, § 302, at 823-24.
31See supra note 25 and accompanying text.
' See Dobbs, supra note 1, § 302, at 824 ("When common experience tells us that
the injury is real and tortiously produced, the reasons for caution suggest that judges
can focus on careful assessment of damages rather than on blanket exclusions of
stand-alone emotional harm.").
35
Keeton et al., supra note 2, § 54, at 360.
2002] The Analytics of Duty 1931

in these cases pertains to the floodgates problem of unlimited li-

ability.
This justification for limiting duty, which by now has become
conventional, emphasizes a concern about unfairness for defen-
dants and similarly situated potential injurers:
It would be an entirely unreasonable burden on all human activ-
ity if the defendant who has endangered one person were to be
compelled to pay for the lacerated feelings of every other person
disturbed by reason of it, including every bystander shocked at
an accident, and every distant relative of the person injured, as
well as all his friends. 6
This conventional justification for limiting duty does not with-
stand scrutiny. Presumably the added compensatory burdens for
stand-alone emotional harms are "entirely unreasonable" because
the total liability of the negligent defendant would then be dispro-
portionate to the wrongdoing. Proportionality, however, does not
provide a compelling reason for defining duty in terms of the type
of harm.
Proportionality certainly matters for purposes of retribution-
the punishment should "fit" the crime-but the tort obligation in
question is one of compensation. As a matter of compensation, the
tort obligation is not disproportionate. The defendant's negligence
foreseeably caused the emotional harm, and the damages merely
compensate the plaintiff's injury.
Indeed, if the total compensatory obligations of a negligent de-
fendant can be limited out of concern for proportional fairness to
the defendant, then a mitigation defense should be available to
those unlucky defendants whose negligence consisted of a slight in-
advertence that caused severe physical injuries to another. Such a
defendant could face ruinous liability for an act that does not even
merit personal reproach. Despite the apparent disproportionate

mId. § 54, at 366. Courts continue to rely on the concern about disproportionate li-
ability. See Martha Chamallas, The Architecture of Bias: Deep Structures in Tort
Law, 146 U. Pa. L. Rev. 463,494-95 (1998).
See Keeton et al., supra note 2, § 4, at 22 (observing that tort liability can be im-
posed even though the "actor may be in no way to blame, and subject to no personal
reproach whatever for the act itself, considered apart from the failure to compensate
for its consequences"). For a good discussion of the associated normative issues, see
1932 Virginia Law Review [Vol. 88:1921

liability in such cases, tort law does not reduce the defendant's li-
ability, presumably because the damages merely compensate the
plaintiff's physical injuries. Tort law's failure to provide a mitiga-
tion defense indicates that duty is not limited out of some concern
that the obligation to pay compensatory damages would be dispro-
portionately burdensome for a negligent defendant.
Tort law also burdens defendants with precautionary obliga-
tions. Expanding duty to include stand-alone emotional harms
could result in precautionary obligations that would be unfairly
burdensome for defendants and similarly situated potential injur-
ers, since duty determines the risks encompassed by the standard
of reasonable care. In that event, however, the standard of care
should be altered to yield precautionary obligations that would be
fair to potential injurers in light of the expanded duty.' Conse-
quently, any unfairness associated with precautionary obligations
does not justify a limitation of duty.
The conventional justification for the duty limitation based on
the type of harm also casts tort law in a bad light. If a negligent de-
fendant's interests have legal priority over the emotional interests
foreseeably harmed by the negligence, then tort law would seem to
inappropriately devalue emotional interests.3" To avoid that prob-
lem, such a priority of interests should not supply the basis for the
duty limitation.
Emotional interests appear to be devalued only because the
conventional justification for the duty limitation incorrectly as-
sumes that tort law gives a negligent defendant's interests legal
priority over the emotional interests foreseeably harmed by such
conduct. In the typical case of physical injury, however, the obliga-
tion to compensate emotional harms implies that the negligent de-
fendant's interests are legally subordinate to the emotional inter-
ests foreseeably harmed by the negligence. This priority of
emotional interests is not limited to cases in which the victim suf-

Jeremy Waldron, Moments of Carelessness and Massive Loss, in Philosophical Foun-

dations of Tort Law 387 (David G. Owen ed., 1995).
' See discussion infra note 42.
39For arguments that tort law devalues emotional interests, see Leslie Bender,
Feminist (Re)Torts: Thoughts on the Liability Crisis, Mass Torts, Power, and Respon-
sibilities, 1990 Duke L.J. 848, 851-53; Chamallas, supra note 36, at 499; Levit, supra
note 29, at 139-40.
2002] The Analytics of Duty 1933

fered physical injury. Tort law allows recovery for at least some
stand-alone emotional harms. Compensating such harms gives the
plaintiff's emotional interests legal priority over the interests of a
negligent defendant, and that priority does not depend on physical
injury.
But if the emotional interests of a negligently harmed victim
have priority over the interests of the negligent injurer, why would
recovery for stand-alone emotional harms ever be limited in a neg-
ligence action?' Any limit on recovery for those who suffer stand-
alone emotional harms must mean that the associated emotional
interests of foreseeable victims are subordinate to some set of in-
terests with legal priority. It is implausible that the interests of a
negligent defendant have such legal priority. The interests most
likely to satisfy this condition involve the security interests of those
individuals who were negligently harmed. In comparing the emo-
tional interests of distressed individuals with the security interests
of the physically injured victims, the security interests would seem
to have priority as the core concern of tort law.41 Consequently, the
security interests of foreseeable victims could provide a defensible
rationale for limiting the duty of a negligent defendant for stand-
alone emotional harms.
To determine whether protection of the security interest justifies
such a limitation of duty, consider the duty that would exist if the
negligent driver were liable for all foreseeable emotional injuries.
Suppose the risk threatens a total of n individuals: the pedestrian
who faces the risk of bodily injury and (n - 1) foreseeable victims
such as family, friends, and bystanders who would suffer emotional
distress in the event that the pedestrian was injured. In this case,
the driver's duty changes from equation (1) above to the following
duty:
(2) B < P a [(L1 ,Ph +L:EIoona,+L 1)o + L2.Eoiona,+ . +L Emotiona]

This more expansive duty of care demands more precautions on

the part of potential injurers relative to the general duty involving
physical injury, as is readily apparent from a comparison of equa-

, Cf. David W. Robertson, Liability in Negligence for Nervous Shock, 57 Mod. L.

Rev. 649, 654-55 (1994) (criticizing the logic in the "seemingly inexorable movement
from liberalisation to further liberalisation" of these claims).
" See supra note 24 and accompanying text.
1934 Virginia Law Review [Vol. 88:1921
tions (1) and (2) above.42 These increased precautions would re-
duce risk and better protect the security interest of the pedestrian
as compared to the protection afforded by the general duty of care.
Thus, if potential injurers always adhered to the standard of rea-
sonable care, the more expansive duty encompassing stand-alone
emotional harms could be supported by the security interests of
potential victims.
Potential injurers, however, do not always adhere to the stan-
dard of care. Some individuals act negligently when it is in their
self-interest to do so. Even individuals who strive to follow the law
make mistakes, resulting in negligently caused accic ents. The social
fact of negligent behavior explains why duty is 7 :ed for stand-
alone emotional harms.
The duty expressed by equation (2), like anN ty, does not
give priority to any one individual harmed by a of the duty.
All n individuals can seek full compensation for injuries. Fre-
quently, the sum total of these judgments will exceLi the assets and
insurance of the defendant. Each plaintiff, including the pedestrian
who suffered physical injury, will get less than full recovery.
Unless the number of claimants arising from any given negligent
act is limited, bankruptcy becomes a concern. Just as bankruptcy
law prioritizes among the claimants to an insufficient pool of assets,
so must tort law. That priority is accomplished by a limitation of
duty. Tort law gives the highest priority to physical security, imply-
ing that any concern about bankruptcy should be resolved in favor
of physically injured victims. Tort law accordingly limits duty to ex-
clude stand-alone claims for emotional harm in order to give physi-
cally injured plaintiffs a much higher chance of receiving full com-
pensation for their injuries.
This rationale for limiting duty is reflected in the prevailing con-
ception of duty as an unusual, liability-limiting rule. Recall that

2 Expanding the duty to encompass more potential victims need not, however, alter
the requirements of reasonable care. The standard of care must fairly mediate the
conflicting interests of the potential injurer with the class of potential victims encom-
passed by the duty. As more potential victims are included within the duty, it would
be unfair to aggregate those interests in a way that unreasonably burdens the liberty
interest of the potential injurer. For this reason, the way in which the standard of rea-
sonable care compares the aggregated interests can depend on the number of aggre-
gated interests or potential victims encompassed by the duty. See Geistfeld, supra
note 17, at 149-51.
2002] The Analytics of Duty 1935
duty is deemed important only when a negligent defendant has
proximately caused injury to the plaintiff. 3 To have acted negli-
gently, the defendant must have breached an established duty of
care-the general duty in cases involving physical injury. That
breach makes it possible to ask whether the negligent defendant's
duty should be expanded to include stand-alone emotional harms.
The duty quK , therefore arises in the general class of cases in-
volving an s,- -,: .onable risk of physical injury, cases that fre-
quently invo-, -jtysically injured victims. The duty question must
consider how ,. more expansive duty and the increased number
of claimants , ould affect compensation of the security interests
also harmed by the defendant's negligent conduct.' If the more ex-
pansive duty would significantly decrease the likelihood of full
compensation for physically injured victims, then the priority of se-
curity interests requires limitation of that duty.
This reasoning explains why courts have limited duty for stand-
alone emotional claims in seemingly arbitrary ways, such as the
"zone of danger" rule. These limitations serve the purpose of limit-
ing duty to a group of claimants small enough to be capable of re-
ceiving full compensation from the defendant in most cases. How
the line is drawn will inevitably appear unfair in some cases. A
general concern about bankruptcy need not be present in a particu-
lar case involving a wealthy defendant. Any unfairness that seems
apparent in a particular case can be countered, though, if courts
adequately explain why liability must be limited for the general
class of cases under consideration.

B. Economic Loss
Consider again the negligent driver who physically injures a pe-
destrian. Suppose the injured pedestrian is a sole proprietor who

See supra note 6 and accompanying text.

"No-duty rules are appropriate only when a court can promulgate relatively clear,
categorical, bright-line rules of law applicable to a general class of cases." Restate-
ment of the Law Torts: Liability for Physical Harm, supra note 6, § 7 cmt. a, at 14.
Thus, even if the negligent defendant did not physically injure anyone in a particular
case, in other cases the negligence will cause physical injury. The fact of physical in-
jury therefore must factor into duty analysis. Cf. Kenneth S. Abraham, The Trouble
with Negligence, 54 Vand. L. Rev. 1187, 1214 (2001) (concluding that pure emotional
distress claims are "wholly derivative of liability for negligently causing physical
harm").
1936 Virginia Law Review [Vol. 88:1921
employs five individuals, and those five workers lose their jobs be-
cause the injured proprietor can no longer run the business. Al-
though the injured proprietor (as pedestrian) can recover for the
lost profits caused by the physical injury, the workers cannot re-
cover their lost wages from the negligent driver.4"
These cases pose many of the problems present in the cases in-
volving stand-alone emotional harms. "The common thread run-
ning through the limitations on recovery for emotional distress,
consortium, and economic loss is not difficult to identify ....[I]t is
an age-old concern about extending liability ad infinitum for the
consequences of a negligent act. '' 46 That concern can be readily ex-
pressed in terms of equation (2) above, which defines a duty in
which (n - 1) individuals suffer foreseeable stand-alone emotional
harm. In that equation, substitute pure economic loss (the L co...ic
0
terms) for the stand-alone emotional harms (the LEmotional terms),
and the resultant duty based on foreseeability alone would encom-
pass at least as many individuals given the ripple effect of commer-
cial or economic harms.
Just as the duty expressed by equation (2) is thought to be too
burdensome for negligent defendants in the case of stand-alone
emotional harms, the equivalent duty is deemed to be overly bur-
densome in cases of pure economic loss.4 7 Justifying the limitation
of duty in terms of the negligent defendant's interests, though, is
subject to the same critique that undermines the justification in the
case of emotional harm. In a claim involving pure economic loss,
the economic interests of the plaintiffs and defendant are impli-
cated. The defendant has acted negligently, so her relevant eco-
nomic interests should be subordinate to the harmed economic in-
terests of the nonculpable plaintiffs. Such a priority of interests is
inherent in the general duty of care, which enables physically in-
jured plaintiffs to recover for economic losses. 48 That priority is also
inherent in the tort rules allowing some plaintiffs to recover for
pure economic loss, showing once again that the negligent defen-

45
See Dobbs, supra note 1, § 452, at 1283.
46
See Robert L. Rabin, Tort Recovery for Negligently Inflicted Economic Loss: A
Reassessment, 37 Stan. L. Rev. 1513, 1526 (1985).
17See, e.g, Goldberg & Zipursky, supra note 2, at 1833;
Rabin, supra note 46, at
1534-38.
4 See supra note 25 and accompanying text.
2002] The Analytics of Duty 1937

dant's interests are subordinate and cannot justify the limitation of

duty.
Until the 1950s, it was "virtually impossible" for a plaintiff to re-
cover for pure economic loss absent privity with the defendant."
Since then, the bar to recovery has eroded somewhat, so that today
plaintiffs may be able to recover for negligently inflicted stand-
alone economic harms in situations lacking privity. In most of these
cases, the duty of care is based on the defendant's special relation-
ship with the plaintiff or the defendant's undertaking of such a duty
directly to the plaintiff." So defined, the duty involves a limited
number of claimants and involves situations, such as accountant or
legal malpractice, that usually do not involve physical injuries. By
allowing a limited number of plaintiffs to recover for pure eco-
nomic loss, these tort rules give the economic interests of those
plaintiffs legal priority over the economic interests of negligent de-
fendants. That priority is not unique to plaintiffs of this type be-
cause "economic loss cases lacking [the specter of widespread tort
liability] do not receive distinctive treatment" from the courts."
The legally subordinate economic interests of a negligent defen-
dant do not justify limiting the recovery of those with superior in-
terests, including individuals who suffer pure economic loss as a re-
sult of the negligence. Any justification for limiting the defendant's
obligations must rely on interests with legal priority over those of
the general class of victims who would be denied compensation for
pure economic harms. The security interest of physically injured
individuals has the greatest legal priority, leading to the duty ques-
tion of whether those interests justify a limitation of duty for cases
involving pure economic loss.
Unless duty regarding economic loss is limited, physically in-
jured victims face a substantially reduced likelihood of receiving
fully compensatory damages from the negligent defendant. The
priority of security therefore justifies the limitation of duty. For
cases in which the security interest is not implicated, as in account-
ant or legal malpractice cases, duty is limited to protect the most
important set of economic interests. Duty, for example, is limited

Jay M. Feinman, Economic Negligence § 2.1, at 28-29 (1995).

'o SeeDobbs, supra note 1, § 452, at 1285-87.
,Rabin, supra note 46, at 1515.
1938 Virginia Law Review [Vol. 88:1921

to the third-party beneficiary of an audit or will, ameliorating the

concern that more widespread liability would bankrupt the defen-
dant and undercompensate the most important set of economic in-
terests.12 As in the context of stand-alone emotional harms, duty
limitations for economic loss are based on a priority of interests in-
volving accident victims rather than any special priority attaching
to the interests of a negligent defendant.
The same analytics are reflected in the economic loss rule that
courts have adopted for construction and products cases. These
cases involve injuries occurring within a set of relationships defined
by contract, such as the warranty relationship between manufac-
turers and consumers. Now duty analysis concerns the interaction
of tort doctrine with contract doctrine. 3 If all negligently caused in-
juries were governed by a tort duty, there would be no role for con-
tracting. To preserve the role of contract law, most courts limit the
tort duty to exclude recovery for pure economic loss.'
In the products liability context, for example, pure economic loss
involves damage to the product itself and the ensuing pecuniary
harms to intangible property. "[T]he resulting loss due to repair
costs, decreased value, and lost profits" is not governed by tort law,
according to the leading case decided by the United States Su-
preme Court, because the claim "is essentially the failure of the
purchaser to receive the benefit of its bargain-traditionally the
core concern of contract law."55
This rationale can be explicated in terms of duty analysis. Sup-
pose a product poses a risk of physical injury to the consumer (de-
noted P1) and a risk of pure economic loss (denoted P2). If tort
duty encompassed pure economic loss, the manufacturer would
owe the following duty of care:
(3 ) B < P, * (Lhysi+LEmotio.a,+LFconomi) + P2 9 L onomic

,2Indeed, most duty cases not involving a special relationship can be conceptualized
as involving third-party contract beneficiaries. See Dobbs, supra note 1, § 452, at 1286.
53 See Restatement of the Law Torts: Liability for Physical Harm, supra note 6, § 7
cmt. d.
54 SeeRestatement (Third) of Torts: Products Liability § 21 cmt. a (1998).
55
E. River S.S. Corp. v. Transamerica Delaval, 476 U.S. 858, 870 (1986) (applying
admiralty law). This case is the "leading decision espousing the position that the na-
ture of the loss should be the determining factor" in deciding the scope of the tort
duty. Restatement (Third) of Torts: Products Liability § 21 cmt. d (1998).
2002] The Analytics of Duty 1939

Such a duty would not be disproportionately burdensome for the

manufacturer, as the cost would be included in the product's price.
Consumers pay for safety investments or tort liability, implicating
only their interests in the tort analysis." Any rationale for limiting
the manufacturer's tort duty therefore must involve the premise
that a more limited duty provides better protection of consumer in-
terests. Consumers may be able to protect themselves contractu-
ally, so formulation of the tort duty must consider contracting.
If contracting adequately enabled consumers to protect them-
selves, the tort duty could be eliminated. Such reliance on contract-
ing has been rejected by the courts. "Products liability grew out of
a public policy judgment that people need more protection from
dangerous products than is afforded by the law of warranty.""7
Contracting does not adequately protect consumer interests be-
cause consumers do not have adequate information about product
risk, leaving them unable to bargain for appropriately safe prod-
ucts.' Due to this informational problem, product transactions
threaten the security interests of consumers, implicating the core
concern of tort law. This core concern mandates that sellers face
the general duty of care, expressed in equation (1) above.
The rationale for imposing a tort duty on product sellers,
though, does not apply to the duty of care encompassing pure eco-
nomic loss, expressed in equation (3). The general duty of care
largely regulates the safety and risk of the product, ensuring ade-
quate protection against physical injury. With concerns about
safety and risk diminished, in cases of pure economic loss the
dominant concern involves the amount of loss. In this regard, the
consumer has the informational advantage. The consumer knows
how the product will be used and has better information about the
pure financial losses that may be caused by a defect. Given that ad-
vantage, the consumer can adequately protect herself with the war-
ranty or other arrangements such as insurance or a supply of spare

Thus,in determining whether the manufacturer has breached the duty of care, "it
is not a factor.., that the imposition of liability would have a negative effect on cor-
porate earnings or would reduce employment in a given industry." Id. § 2 cmt. f.
E. River S.S. Corp., 476 U.S. at 866.
m See Mark Geistfeld, Products Liability, in 3 Encyclopedia of Law and Economics
347,348-54 (Boudewijn Bouckaert & Gerrit De Geest eds., 2000).
1940 Virginia Law Review [Vol. 88:1921

parts. 9 A tort duty encompassing pure economic harms therefore is

not needed to protect the interests at stake in these cases. The core
interest in physical security is protected by the general duty of care,
and the purely economic interests otherwise at stake can be ade-
quately protected by contracting or otherwise.

III. MEDICAL MONITORING AND RELATED FORMS OF ECONOMIC

Loss FOR PRECAUTIONARY INVESTMENTS
Consider again the risky interaction between a driver and a pe-
destrian. Previously, the negligence involved unsafe driving. Now
suppose the unreasonable risk stems from a faulty automatic brak-
ing system, which during emergencies operates in a manner that
"causes the average driver to perceive an actual brake failure and
misapply the brakes."' To eliminate that unreasonable risk, the
braking system must be repaired.
Suppose the defect could be remedied by a costly modification
to the braking system. The modification, though expensive, is less
costly than the unreasonable risk that would be eliminated by the
modification. Repair therefore satisfies the general standard of
care, since the cost of repair is less than the resultant safety benefit:
(4 ) B <
pair P * (Lhysie1+LEa+L Eic)
Even though repair satisfies the general standard of care, and
even though the manufacturer is responsible for the defect, the re-
pair cost would not be borne by manufacturers in most jurisdic-
tions: The cost is financial and governed by the economic loss
rule.61
This result would not occur in the minority of jurisdictions that
distinguish between defects that merely disappoint the buyer and

5
See William K. Jones, Product Defects Causing Commercial Loss: The Ascen-
dancy of Contract over Tort, 44 U. Miami L. Rev. 731, 764-67 (1990). The informa-
tional advantage regarding loss is likely to be more pronounced for commercial buy-
ers, explaining why some courts have granted recovery for pure economic loss in cases
involving noncommercial buyers. See, e.g., Lloyd F. Smith Co. v. Den-Tal-Ez, 491
N.W.2d 11, 17 (Minn. 1992).
' Such a defect was alleged in Briehl v. General Motors Corp., 172 F.3d 623, 626
(8th Cir. 1999).
6'This conclusion assumes that the manufacturer is not liable for repair costs under
the warranty.
2002] The Analytics of Duty 1941

defects that are unreasonably dangerous to persons and property.'

The defective automatic braking system works perfectly well in or-
dinary braking situations and does not disappoint the buyer's ex-
pectations; the defect is manifested only in emergency situations
involving the risk of accidental crashes. For such a defect, these ju-
risdictions treat the claim for repair costs as involving the security
interest governed by tort law, rather than the expectancy interest
governed by contract and warranty law.'3 A tort claim for repair
costs is allowed; the economic loss rule does not apply.
Although courts have not perceived the connection, the same is-
sue exists in cases involving plaintiffs who seek recovery only for
medical monitoring. Despite the fundamental similarity of the un-
derlying issues, most courts have rejected tort claims for reason-
able repair costs, whereas most courts have allowed tort claims for
medical monitoring.64
In the monitoring cases, the defendant has breached the general
duty of care and imposed an unreasonable risk of physical harm on
the plaintiff. The plaintiff, though, does not know whether she has
suffered the physical injury. That determination requires periodic
medical testing. The tests are costly, and the plaintiff seeks tort re-

" For a listing of these jurisdictions, see Restatement (Third) of Torts: Products Li-
ability § 21 cmt. d, at 304-05 (1998). A majority of jurisdictions do not distinguish
economic loss in this manner, limiting remedies to those provided by the Uniform
Commercial Code. Id. § 21 cmt. d, at 294-95.
6 Nonetheless, a number of these jurisdictions seem troubled by the distinction,

leading them to add the requirement that the product must fail in a sudden and ca-
lamitous manner. See id. § 21 cmt. d, at 304-05. Such failure apparently makes the
harm sufficiently "accidental" for purposes of tort liability, as if the nature of the rele-
vant interests were not sufficient reason for choosing between contract and tort law.
6Not only are the trends inconsistent, but the case law within some jurisdictions is
inconsistent. Compare Aloe Coal Co. v. Clark Equip. Co., 816 F.2d 110, 117-19 (3d
Cir. 1987) (applying Pennsylvania law while limiting commercial plaintiffs to contrac-
tual remedies for pure economic loss, even if defect posed risk of other injury), with
In re Paoli R.R. Yard PCB Litig., 916 F.2d 829, 852 (3d Cir. 1990) (applying Pennsyl-
vania law while allowing a tort claim for medical monitoring). The two types of cases
are similar, even though products liability cases involve an issue of contracting that is
not necessarily present in medical monitoring cases. As equation (4) shows, contract-
ing for reasonable repair costs requires information about the risk of physical injury.
The premise of products liability is that consumers, including commercial entities, do
not adequately understand that risk. See supra notes 58-59 and accompanying text.
Hence, consumers cannot adequately contract for reasonable repair costs, reqeiring
tort regulation of those costs. For tort purposes, then, the issue of contracting does
not distinguish the monitoring cases from the repair cases.
1942 Virginia Law Review [Vol. 88:1921
covery for these costs on the ground that the harm was caused by
the defendant's negligence. As with the tort claims for repair costs,
the monitoring claims would seem to be barred by the economic
loss rule, as the cost of testing is financial and does not stem from
present physical injury. Nevertheless, courts typically allow medical
monitoring claims, reasoning that the claim involves the type of in-
terest protected by tort law:
It is difficult to dispute that an individual has an interest in avoid-
ing expensive diagnostic examinations just as he or she has an in-
terest in avoiding physical injury. When a defendant negligently
invades this interest, the injury to which is neither speculative
nor resistant to proof, it is elementary that the defendant should
make the plaintiff whole .... 6'
There has been a clear trend favoring medical monitoring
claims.' The trend may have subsided, however. Recently some
courts have rejected medical monitoring claims unless the plaintiff
can establish a present physical injury.67 As in the case of economic
loss, an opinion by the United States Supreme Court may lead
state courts to exclude medical monitoring costs from the duty of a
negligent defendant.
In Metro-North Commuter RailroadCo. v. Buckley, the Supreme
Court decided that employees suing under the Federal Employers'
Liability Act could not recover lump-sum damages for the ex-
penses of medical monitoring resulting from the employer's negli-
gence.' The remedy of a lump-sum damages award appeared to be
fatal to the claim, as the Court stressed that the successful state tort
claims for medical monitoring involved remedies, such as court-
supervised funds, ensuring that the money would be spent on

65
Friends for All Children v. Lockheed Aircraft Corp., 746 F.2d 816, 826 (D.C. Cir.
1984).
66See James M. Garner et al., Medical Monitoring: The Evolution of a Cause of Ac-
tion, 30 Envtl. L. Rep. (Envtl. L. Inst.) 10,024, 10,024 (2000). The appellate courts in
seventeen states and the District of Columbia recognized such claims. See, e.g.,
Badillo v. American Brands, 16 P.3d 435,438-39 (Nev. 2001).
67
E.g., Badillo, 16 P.3d at 441 (holding that Nevada common law does not recognize
a cause of action for medical monitoring though it may remain a remedy for other
recognized claims).
.521 U.S. 424, 444 (1997).
2002] The Analytics of Duty 1943
monitoring.69 The Court also invoked concerns regarding the diffi-
culty of determining such damages and the increased number of
cases.' These additional concerns have proven influential; they
have been relied upon in subsequent cases denying medical moni-
toring claims, even though the claims sought the remedy of court-
supervised funds rather than a lump-sum damages award."
Importantly, the Court's concern in Buckley about the increased
number of cases was based on the appropriate rationale for limit-
ing duty-the concern that damages for medical monitoring would
significantly diminish the likelihood that physically injured victims
would be fully compensated. This concern had always been lurking
in the limited-duty cases in the guise of disproportionate liability,
but Buckley occurred in a setting that had surfaced the concern.
The plaintiff had been exposed to asbestos fibers, and so the claim
arose in the midst of mass tort claims for physical injury:
Buckley here sought damages worth $950 annually for 36 years;
by comparison, of all claims settled by the Center for Claims
Resolution, a group representing asbestos manufacturers, from
1988 until 1993, the average settlement for plaintiffs injured by
asbestos was about $12,500, and the settlement for nonmalignant
plaintiffs among this group averaged $8,810.'
A large number of asbestos victims apparently have not been re-
ceiving full compensation for their serious physical injuries. Claims
for severe physical injury would seem to have priority over claims
for medical monitoring, even though both claims involve the secu-
rity interest. Given that priority, the Court properly limited the de-
fendant's duty to exclude liability for medical monitoring. Such
limitation is necessary for adequately protecting the security inter-
est.?

69
Id. at 440-41.
70
Id. at 441-44.
71See Duncan v. Northwest Airlines, 203 F.R.D. 601, 608 (W.D. Wash. 2001) ("The
Buckley concerns are a reminder of the economic costs that would resonate in Wash-
ington beyond this case were this Court to recognize a stand-alone tort of medical
monitoring. Buckley counsels caution that this Court finds appropriate to heed.").
2 Buckley, 521 U.S. at 442.
7Cf. Francis McGovern, The Tragedy of the Asbestos Commons, 88 Va. L. Rev.
1721 (arguing that limited resources available for compensating asbestos injuries
would have been sufficient to compensate fully the most severe physical injuries). In-
1944 VirginiaLaw Review [Vol. 88:1921
The question then becomes one of precedential effect. Is Buck-
ley an exceptional case with an outcome that depends on the
unique characteristics of mass torts, or does it portend a new trend
of limiting duty for monitoring claims? Properly understood, Buck-
ley is consistent with the type of duty analysis that ordinarily per-
mits tort claims for the reasonable costs of medical testing or re-
pair, the same duty analysis that justifies limitations of duty for
stand-alone economic or emotional harms. Ironically, this interpre-
tation of Buckley can be illustrated by examining an earlier line of
cases involving asbestos.
In response to the health hazards posed by asbestos, the federal
government and many states have enacted statutes requiring the
removal or segregation of asbestos-containing materials from
schools and public buildings.' Private homeowners have also un-
dertaken these abatement measures. The measures are quite ex-
pensive, leading property owners to seek tort compensation for the
costs of abating the unreasonable risks posed by asbestos. In re-
sponse, asbestos manufacturers and suppliers have invoked the
economic-loss rule, maintaining that abatement costs are entirely
financial. These cases therefore squarely raise the issue of whether
the economic-loss rule should distinguish defects involving disap-
pointed expectations from defects that are dangerous to persons
and property.
That distinction has not been drawn by most jurisdictions,' so
presumably most courts would rely on the economic-loss rule to
bar tort claims for the economic costs of asbestos abatement. "In
fact, most courts have done just the opposite, freely allowing prop-
erty owners to sue in tort by adopting a 'liberal' definition of physi-
cal injury."76 By holding that asbestos-containing material damages

dividuals with the least severe physical injuries, "pleural[s]," could still be protected.
See Peter H. Schuck, The Worst Should Go First: Deferral Registries in Asbestos
Litigation, 15 Harv. J.L. & Pub. Pol'y 541, 542 n.3 (1992). To be sure, railroads may
not be facing mass tort claims for asbestos injuries, unlike asbestos manufacturers.
But insofar as the Court's concern about bankruptcy was improperly invoked in this
case, that error provides further support for my conclusion that the case ought not
stop the judicial trend of allowing tort claims for medical monitoring.
See Richard C. Ausness, Tort Liability for Asbestos Removal Costs, 73 Or. L.
Rev. 505, 505 n.2 (1994). The discussion in this paragraph is drawn from this article.
" See supra note 62 and accompanying text.
76Ausness, supra note 74, at 530.
2002] The Analytics of Duty 1945

other property, these cases do not literally violate the economic-

loss rule. The holding is unpersuasive, however, because "asbestos-
containing materials do not physically alter any part of the building
or impair its structural integrity."'
In effect, then, the asbestos abatement cases involve an excep-
tion to the economic-loss rule, as acknowledged by the Restatement
(Third) of Torts: ProductsLiability:
One category of claims stands apart. In the case of asbestos
contamination in buildings, most courts have taken the position
that the contamination constitutes harm to the building as other
property. The serious health threat caused by asbestos contami-
nation has led the courts to this conclusion. Thus, actions seeking
recovery for the costs of asbestos removal have been held to be
within the purview of products liability law rather than commer-
cial law.'
Even though courts have allowed tort recovery in the abatement
cases and the Supreme Court in Buckley denied tort recovery for
the cost of medical monitoring, the cases are consistent. The differ-
ence in outcomes is attributable solely to different circumstances
rather than a different conception of duty.
Asbestos abatement was statutorily mandated, which is tanta-
mount to a legislative finding that abatement costs are a reasonably
necessary expense for eliminating the unreasonable risk of physical
injury. In these circumstances, making asbestos manufacturers and
suppliers liable for abatement costs reasonably protects the core
tort interest in physical security. By contrast, there was no legisla-
tion mandating the cost of medical monitoring procedures in Buck-
ley, making it unclear whether the required tests were reasonable.
In addition, the abatement cases involved the direct expenditure of
money on risk reduction, whereas Buckley involved a lump-sum
remedy that need not have been spent on medical monitoring. Fi-
nally, most of the abatement cases preceded Buckley, and with the
passage of time it has become evident that physically injured asbes-
tos victims will not be fully compensated.

Id. at 532.
78Restatement (Third) of Torts: Products Liability § 21 cmt. e, at 296 (1998).
7The problem of resource scarcity in the asbestos context was not immediately evi-
dent, but only became apparent over time. See McGovern, supra note 73, at 1747-48.
1946 Virginia Law Review [Vol. 88:1921
Viewed collectively, Buckley and the asbestos abatement cases
define duty in a manner that excludes a certain type of harm only if
the exclusion is required to adequately protect the security inter-
ests of potential victims. Once duty is analyzed in this manner, it
becomes clear that the duty limitation inherent in the economic
loss rule should not bar tort claims for medical monitoring or rea-
sonable repair costs. A duty that excludes the costs of medical
monitoring or of reasonable repair ordinarily does not adequately
protect the security interest.
By shifting responsibility for monitoring or repair costs from the
negligent defendant to the class of potential victims, the limited
duty enables the negligent defendant to avoid full responsibility for
compensating the physical harms that result from the negligence.'
By including these costs within the duty, the negligent defendant
becomes responsible for all physical harms proximately caused by
the negligence, an outcome consistent with the adequate protection
of the security interest. Moreover, the more expansive duty ordi-
narily increases the assets that would be available to the negligent
defendant, making it more likely that physically injured victims will
be fully compensated for their injuries.
This conclusion follows from the requirement that compensable
monitoring costs must be "reasonable and necessary."'" Com-
pensable monitoring costs therefore have the same characteristics
as the reasonable repair costs discussed earlier:
(5) BMonitodng <P. (LPhysical +Lcm.ona,+L ,.onic)

Under these conditions, the cost of monitoring is less than the li-
ability costs that the negligent defendant should incur if the moni-

0 If a plaintiff does not undergo reasonably necessary medical testing, she may bear
some responsibility for the physical injury under the doctrine of avoidable conse-
quences. See, e.g., Ostrowski v. Azzara, 545 A.2d 148, 153-55 (N.J. 1988). This result
parallels the outcome that could occur in the previous example of the defective auto-
matic braking system. Suppose the defect causes the driver to misapply the brakes,
causing her physical injury in the ensuing crash. Because repair is required by the
standard of reasonable care, a driver who did not repair the braking system would be
contributorily negligent and bear at least some responsibility for the injury under
principles of comparative fault. See Restatement (Third) of Torts: Products Liability
§ 17 (1998).
8'Ayers v. Township of Jackson, 525 A.2d 287, 312-13 (N.J. 1987); accord In re
Paoli R.R. Yard PCB Litig., 916 F.2d 829, 852 (3d Cir. 1990) (applying Pennsylvania
law).
2002] The Analytics of Duty 1947

toring were not undertaken and the physical injuries subsequently

occurred. These savings for a negligent defendant are most likely
to accrue if the damages for the monitoring or repair claim were to
exclude recovery for emotional harms, an exclusion fully consistent
with the limitation of duty for stand-alone emotional harms.' Im-
posing the costs of medical monitoring on negligent defendants
therefore can reduce their total liability costs.' That reduction or-
dinarily increases the total assets of defendants, making it more
likely that they can fully compensate the physical injuries that
eventually occur. In extraordinary cases like those involving recov-
ery for asbestos-related injuries, a duty encompassing medical
monitoring might not adequately protect the security interest if a
large number of physical injuries cannot be adequately compen-
sated by the assets of the defendants. These situations are the ex-
ception, though, and not the rule.
Consequently, Buckley ought not stop the trend in the state
courts of recognizing properly framed tort claims for medical moni-
toring. And if courts recognize that the monitoring claims imply
that duty also should encompass reasonable repair costs, they will

'As compared to a duty rule requiring that the plaintiff must suffer physical injury
in order to recover, the duty rule allowing monitoring or repair claims will signifi-
cantly increase the total number of claimants. The existing duty limitations on recov-
ery for stand-alone emotional harms would not apply to these additional claimants, so
each of them could also seek recovery for the emotional harm associated with the fear
of suffering the injury. In these circumstances, allowing the monitoring or repair
claims could significantly increase the total liability of the negligent defendant. If that
increase in total liability would significantly reduce the likelihood that the security in-
terest will be adequately protected by tort liability, then duty should encompass only
those monitoring or repair claims that do not also seek recovery for emotional harms.
The duty analysis supporting this limitation on damages is no different than the analy-
sis supporting limits on recovery for stand-alone emotional harms. See supra Part II.
Legal transaction costs for the monitoring or repair claims then can be minimized by
class action suits. See Cabraser, supra note 9, at 213-15.
3Some circumstances could increase the total liabilities of a negligent defendant
held liable for monitoring or repair costs in cases not involving present physical in-
jury. The limitations on tort damages in wrongful death actions, for example, could
make it less expensive for negligent injurers to let the exposed individuals die rather
than monitoring the disease or illness. Similarly, causal requirements could bar all
physically injured victims from recovery if the negligence did not sufficiently increase
the risk of injury. In these circumstances, defendants are able to avoid liability for all
the physical injuries their negligence has caused. Consequently, any such increase in
expected liability costs brought about by the adoption of monitoring or repair liability
would not undermine protection of the interest in physical security. Increased liability
costs of this type therefore do not justify a limitation of duty.
1948 Virginia Law Review [Vol. 88:1921

be applying duty analysis in the manner required by the core con-

cern of tort law.
One remaining issue is whether claims for medical monitoring or
reasonable repair costs are appropriate for the courts. Some com-
mentators argue that these claims are best left to the legislature. '
That argument is unpersuasive. To recover, the plaintiff must show
that the monitoring or repair costs are reasonably necessary. The
liability issue in these cases is fundamentally similar to the issue
posed in any negligence action, as made evident by a comparison
of equations (1), (4), and (5) above.' The requirement that moni-
toring or repair costs are reasonably necessary is the type of issue,
then, that traditionally has been given to the jury.' Formulating the
remedy, such as court-supervised funds, is a proper exercise of ju-
dicial authority.
Thus, courts that have recognized claims for reasonable monitor-
ing or repair costs have appropriately exercised their common law
authority. But even these courts have inappropriately limited re-
covery. Courts have required plaintiffs to show that they were in
fact exposed to the hazard or defect.' Monitoring or repair costs
can be reasonable, though, even if the plaintiff is unsure whether
she has been exposed. Even a small possibility of exposure can
make monitoring or repair reasonable. After all, if there were a
one-in-one-hundred chance that someone had been exposed to an-
thrax, it would be reasonable to test. This conclusion follows di-

" See, e.g., Victor E. Schwartz et al., Medical Monitoring-Should Tort Law Say
Yes?, 34 Wake Forest L. Rev. 1057, passim (1999).
" If the costs are not reasonable, then the unreasonable risk remains and the defen-
dant is fully liable for any resultant injuries. Cf. discussion supra note 80 (explaining
that the doctrine of avoidable consequences requires plaintiffs to take reasonable
mitigation measures to avoid being contributorily negligent). For this reason, the rea-
sonableness of the claimed monitoring or repair costs should be determined by refer-
ence to the ordinary standard of reasonable care.
6Juries are also capable of rejecting claims because the monitoring was not rea-
sonably necessary. See Tobacco Companies Prevail in W. Va. Medical Monitoring
Suit, 17-3 Andrews Tobacco Indus. Litig. Rep. 4 (Nov. 30, 2001).
7 See Briehl v. Gen. Motors Corp., 172 F.3d 623, 627-28 (8th Cir. 1999) (dismissing
a claim for repair costs because no plaintiff had experienced the defect, citing numer-
ous cases in support); In re Methyl Tertiary Butyl Ether ("MTBE") Prods. Liab.
Litig., 175 F. Supp. 2d 593, 607-10 (S.D.N.Y. 2001) (dismissing monitoring claims be-
cause threatened exposure was not "certainly impending"); Khan v. Shiley Inc., 266
Cal. Rptr. 106, 111 (Cal. Ct. App. 1990) (finding that the plaintiff with an inherently
defective heart valve failed to state a claim unless the valve malfunctioned).
2002] The Analytics of Duty 1949
rectly from the standard of reasonable care. In cases of threatened
exposure, the risk term, PL, in equations (4) and (5) involves the
probability of exposure multiplied by the probability of injury in
the event of exposure. Given a high probability of severe injury in
the event of exposure, as with anthrax, the probability of exposure
need not be very high to make some testing or repair costs reason-
able.
Perhaps the courts have required exposure as a link to the ordi-
nary requirement of physical injury.' Exposure is not needed for
that purpose, as the monitoring or repair protects the very same
security interest otherwise protected by damages in the event of
physical injury.

CONCLUSION

The core concern of tort law involves protecting the physical in-
tegrity of persons and property. Related to this core concern is the
premise that the primary reason why "actions of tort are maintain-
able" is "to give compensation, indemnity or restitution for
harms."' The premise that compensation is the primary purpose of
tort law appears to be flatly contradicted by the large number of in-
juries that are not compensable in tort. Individuals who suffer
stand-alone emotional harm or economic loss usually cannot re-
cover, even if their harms were caused by negligence. Even physi-
cal injuries ordinarily are not compensable unless caused by negli-
gence. How, then, could compensation be the primary rationale for
tort liability? And if compensation is not the primary purpose of
tort law, in what way is the core of tort law really located in protec-
tion of the security interest?
Contrary to appearances, limitations on tort liability can be justi-
fied with a compensatory rationale.' The justification relies on the
practical problems posed by damage awards.
Tort damages do not compensate a dead person for the lost
pleasures of living, nor do damages realistically "make whole" the

' Cf. discussion supra note 63 (describing limits courts have placed on the eco-
nomic-loss doctrine that seem more related to some concept of accident rather than
the relevant interests).
8 Restatement (Second) of Torts § 901 (1979).
" See Mark Geistfeld, Negligence, Compensation, and the Coherence of Tort Law,
91 Geo. L.J. (forthcoming 2002) (on file with the Virginia Law Review Association).
1950 Virginia Law Review [Vol. 88:1921

serious physical disabilities of accident victims. Rather than rely

exclusively on damages, tort law must protect potential victims by
other means. Such protection can be provided by a negligence
standard that reduces risk below the level that would obtain when
potential victims are guaranteed compensatory damages (strict li-
ability). The risk reduction benefits potential victims by making it
less likely that they will be seriously injured or killed, providing a
nonmonetary compensatory rationale for negligence liability con-
sistent with the priority of security interests over other competing
interests.9' To promote the objective of compensation, then, tort
awards typically are limited to negligently caused injuries.
A different practical problem posed by damages awards explains
why negligence liability must be limited for compensatory reasons.
Imposing liability on a negligent defendant for all foreseeable
harms would predictably bankrupt defendants in certain classes of
cases, leaving the defendant unable to fully compensate the physi-
cally injured victims. To help ensure that physical injures are ade-
quately compensated, in most cases tort law limits the duty of neg-
ligent defendants to exclude stand-alone emotional harms and
economic losses. In some cases, these injuries are included in the
duty because the duty is formulated in a manner that allows a lim-
ited number of parties to make claims on the negligent defendant's
assets. The various rules defining duty in terms of the type of harm
therefore can be justified by the compensatory rationale for tort li-
ability, which serves tort law's core concern of protecting the secu-
rity interest.
That limits on compensation can be justified in compensatory
terms is counterintuitive, which probably explains why duty analy-
sis has eluded the courts. Unfortunately, the lack of duty analysis
has undermined the tort protection of physical security. Many
courts have limited duty to exclude stand-alone claims for medical
monitoring and related forms of economic loss. The analytics of
duty, however, show that such harms should be encompassed
within the duty of a negligent defendant, because formulating duty
in this manner protects the security interests of potential victims.
Mistakes like this will occur as long as duty analysis remains un-
developed. Duty is required for negligence liability, so it should not

"' See Geistfeld, supra note 17, at 137-45.

2002] The Analytics of Duty 1951

be surprising that duty analysis is required for the proper function-

ing of a negligence-based tort system.