February 15, 2010
Guest Blogger Alan Calnan: On Due Process, Probable Cause, Duty and Torts
Nothing in torts is more sacrosanct than the aggrieved party’s right to sue. Some theorists see it as a political right of access to an important public institution. Others say it is a moral imperative securing a fundamental personal liberty. Still others view it as simply a practical expedient for blatant judicial policymaking.
Whatever its basis, the right to sue is both embedded in and enabled by the tort concept of duty. Conventional wisdom holds that people owe a general duty to protect others from the unreasonable risks of their conduct. This duty, in turn, bestows upon all citizens both a primary right of security and a complementary power to enforce that right in court. When one person’s act violates another’s security by causing her personal injury, this dormant power becomes an actual subsidiary right of legal recourse that presumptively legitimates the injured party’s tort suit against the actor. Indeed, under the approach recently adopted by the Restatement (Third) of Torts, that subsidiary right prevails unless and until the actor turned defendant affirmatively undertakes to challenge it.
In this post I will argue that the right to sue in tort is not universal, absolute or automatic, but is counterbalanced and limited by an equally critical right to be free from unsubstantiated litigation. Relatedly, I shall contend that this defensive right invalidates the use of a general duty in negligence cases. A plaintiff suing for negligence must earn the right to haul her adversary into court; and to do this, she must show probable cause for her action. I will close by briefly sketching out a procedure for implementing this requirement.
A tort action, like a criminal prosecution, is an assault. Stripped of its formal trappings, such a proceeding entails one person or group acting to interfere with the interests of another. Regardless of its outcome, this assault greatly impairs the liberty of the party against whom it is directed, disrupting her employment, draining her financial resources, subjecting her to public obloquy, and causing her anxiety and emotional turmoil.
Both types of assault rely on state action. In criminal cases, the state initiates and prosecutes the assault on its own. In tort cases, the state provides invaluable assistance to a private claimant, lending her its fora, facilities, administrators, laws, procedural rules, decisionmakers, and even its coercive authority. Accordingly, each act of legal aggression is governed by the dictates of due process.
Due process prohibits limiting liberty without adequate justification. Neither criminal prosecutions nor tort actions are inherently justified. When an accuser makes an accusation of legal responsibility, the propriety of the accused’s conduct is unknown. There is no more reason to assume the accused’s guilt than to assume the accuser’s bad faith. The only certainty is the fact of the accuser’s current aggression. Until grounds for suspecting a wrong are established, the accuser possesses no automatic right of recourse. She accrues that right by creating probable cause for her action.
In criminal cases, probable cause has a single, factual dimension. The prosecutor must present facts demonstrating that the accused probably committed a crime. This showing is sufficient to justify state action, since both the conduct subject to criminal punishment and the authority of the state’s prosecutor are prescribed by statutory law.
Tort cases, by contrast, require three forms of probable cause. As in criminal cases, the prosecutor of a tort action must present facts providing reasonable grounds to believe that the defendant committed a tort. Unlike criminal cases, however, this factual predicate is not sufficient to establish a right to civil recourse. To fully justify her private assault, a tort plaintiff also must establish substantive and procedural probable cause.
Substantive probable cause is a prima facie showing of the defendant’s obligation. While criminal duties are clearly defined and statutorily entrenched, tort obligations are deceptively complex and insufferably dynamic, often arising slowly and incrementally from decades of precedents, or erupting suddenly and spontaneously from a single judicial decision. Thus, tort’s duties are naturally more uncertain.
That said, some tort obligations surely are more fixed than others. The duties of intentional torts and strict liability are categorical and unequivocal. They attach automatically to a predictable set of suspect activities and impose responsibility whenever those activities result in harm. For these torts, substantive probable cause often can be presumed from allegations of act, causation, and injury. Negligence duties, by contrast, are conditional and circumstantial. Because the conduct at issue is neither abnormally dangerous nor intended to harm, it is not innately suspect and may not be saddled with the same permanent burden of responsibility. A duty attaches, if at all, only when the act creates risks that are contextually unreasonable. Thus, probable cause of the actor’s obligation cannot be blithely assumed, but must be carefully constructed from the circumstances surrounding the accident and the norms and precedents prevailing in the community where it occurred.
While such a showing establishes the defendant’s debt of care, procedural probable cause identifies the plaintiff as her lawful creditor. In this sense, procedural probable cause is a prima facie showing of the plaintiff’s standing to sue. Unlike criminal prosecutors, tort plaintiffs have no inherent prosecutorial authority. Because all people are equal, no citizen possesses the power to directly control or regulate another, whether by self-help measures or by state processes. The latter, procedural right accrues, if at all, only when there is probable cause to believe that the plaintiff was owed something the defendant failed to deliver.
In intentional torts and strict liability actions, this burden is rather easily met. Because responsibility follows the activity, the actor’s debt runs to virtually anyone caught in its wake. In negligence cases, however, the plaintiff’s procedural burden is far greater. Here, the duty of care lies not in the act, but in its ephemeral effects. It arises only upon the creation of risk, and extends only so far or so long as that risk threatens others. Because only people within the danger zone sacrifice their security to the actor, they alone hold the right to call in the actor’s debt of responsibility. People outside of harm’s way concede nothing to the actor; thus they are powerless to complain of her behavior. Without proof of the risk and the plaintiff’s relation to it, one simply cannot determine in advance where the plaintiff stands. To establish her standing to sue, the plaintiff must show that her past vulnerability to the dangerous act now justifies her aggressive reaction against its creator.
But probable cause does not just confer an important right. It also prevents the infliction of an impending wrong. Backed by probable cause, a tort suit is a privileged exercise of self-defense and a core guarantee of due process. Absent probable cause, however, a civil action is far less civil. In fact, it becomes an oppressive process that actually imposes arbitrary restraints on liberty.
Although probable cause’s freedom-fighting is reserved mostly for criminal cases, it is not completely foreign to tort law. Indeed, probable cause plays a prominent and important role in the tort action of Wrongful Use of Civil Proceedings (WUCP). Under WUCP, a civil action is wrongful if it is initiated without probable cause and for a purpose other than the proper adjudication of a claim. If sustained, WUCP permits the aggrieved party to recover damages for enduring this legal assault.
WUCP creates a powerful corrective right to redress a serious liberty infringement. It does not simply lay obstacles in the path of a litigant, but subjects her to financial penalties for abusing the process. Accordingly, WUCP sets a particularly high standard for granting that right, requiring the aggrieved party to prove both a lack probable cause and an improper motive for the underlying litigation.
Yet there is no reason to believe that the wrong of unsubstantiated litigation can only be addressed by a corrective right. In fact, current tort doctrine suggests otherwise. When a person holds a reasonable belief that her interests are in imminent danger, the law generally affords her a right of reaction. In the case of an apparent assault, her right to self-defense gives her probable cause to respond with proportionate force to stop the attack. This preemptive right holds until reasonable grounds appear to justify the encroachment.
The same preemptive right should apply to negligence litigation. Unless the plaintiff offers probable cause for her action, her lawsuit presents a threat to the due process rights of the defendant. To protect those primary rights, the defendant should possess a secondary right to preempt the plaintiff’s lawsuit and force her out of court. Because the defendant seeks merely to enjoin the action, and not to recover compensation for its harmful effects, her preemptive right should depend solely on the existence of probable cause without regard to the plaintiff’s motivation for filing suit.
Although this preemptive right could be implemented in various ways, I propose conducting a mandatory probable cause hearing at the beginning of litigation, preferably soon after the close of pleadings, to diminish the potential harm to the defendant’s liberty interests. At this hearing, the plaintiff would bear the burden of establishing substantive and procedural probable cause. To satisfy the substantive requirement, she must not only offer evidence of the defendant’s personal duty, including any positive laws, community norms, or case precedents governing the defendant’s behavior, but also convince the court that this duty should be transformed into a public rule of law, in view of the court’s administrative and political constraints and its interpretive guidelines for integrating such duties into the existing network of common and statutory laws. To meet her procedural burden, the plaintiff must prove her personal standing to enforce the defendant’s debt of responsibility, typically by demonstrating her statutory authority, her special relationship with the defendant, or her subjection to the foreseeable risks of the defendant’s behavior, facts which often require little investigation.
If the plaintiff fails to sustain either burden, she cannot establish probable cause for her action, and the defendant may invoke her preemptive right to end the litigation. Conversely, if the plaintiff satisfies these burdens, she is entitled to proceed through discovery. Yet she is not home free. As under current practice, the defendant may move for summary judgment, effectively forcing the plaintiff to create probable cause for a trial by establishing a factual basis for the remaining elements of breach, causation, and damages.
While no procedure is perfect, the proposed approach has plenty of upside. Some may worry that a probable cause hearing will be too complicated or costly. But by expediting discovery, sharpening the issues, and incentivizing settlement discussions, it seems more likely to streamline the process. Others may fear that some unripe but litigable cases will be lost. But these cases are likely to be dwarfed by the scores of ill-advised or unsubstantiated claims purged from the court dockets. Even if the margin is narrow, the intangible gains still promise to be great. By recognizing rights to sue and from suit, we can enhance our notion of due process, confirm our commitment to justice, and restore our faith in the tort system.
Southwestern Law School
 This proposal and its defense are developed more fully in a work-in-progress tentatively entitled Probable Cause in Torts.
 Currently, most courts litigate this right as a duty issue only after full discovery and only in response to defendants’ discretionary motions for summary judgment.
 Of course, the parties could waive the hearing by stipulating to the probable cause issues in advance.
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