Volokh Conspiracy: Not vaccinating = failure to reasonably avoid polluting

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 its 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 wasnt clear which one. Usually, a plaintiff has to show that theres 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.)

Im skeptical about my friends 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 hasnt 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 plaintiffs illness, directly or indirectly I dont 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.