INFLICTION OF PRECARITY: RISK, VULNERABILITY, AND TORT LAW

Authors

• Saad Al-Obaidi

Abstract

Imposing a risk of harm on someone should be a tort in certain unjustifiable circumstances, regardless of whether the harms at risk materialize. A doctrinal undercurrent exists that supports this proposal concerning latent or delayed harms as legally cognizable injuries. Even though it is a basic moral principle not to put others at risk of harm without justification, courts deny in principle recovery for risks that lack concomitant externalizations in some familiar form of harm, like physical, pecuniary, or emotional damage to the person. This Article argues that tort law should offer recovery for unjustified risk impositions in circumstances that fit what the author describes as an “infliction of precarity” against a person or class of people. To support this argument, the Article attends to the philosophical literature on risk imposition, precariousness, and vulnerability, to contend that a duty of care concerning them is our answer to the questions of civil justice that they raise. As an intermediary step, the article intervenes in meta-ethical debates over the value grounds of risk and risk imposition, where the author develops a view on the same that involves harmonizing the ethics and justice of risk and vulnerability with that of opportunities and capabilities. Based on this metaethical groundwork, “infliction of precarity” is a proposed civil wrong and legal action predicated on the moral properties of risk and risk imposition, that would enable individuals to recover for dignitary harms arising out of risky conduct and activities on the basis of the risk rather than the manifestations of the event at risk. The proposed category of injury in an “infliction of precarity” claim is thus not based on any “pre-harms,” “latent harms,” or “post-harms” that are non-inherent harms of actions like risk impositions. Instead, the injury is based on a real or actual threat to a dignity interest in the integrity of our capabilities and opportunities inherent in the nature of a risk imposition. This interest is in securing our life from persistent and escalated vulnerability to harm that the infliction of precarity actually causes; it should be protected because the value of anyone’s well-being depends plausibly on the scope of our capaciousness as much as on the extent to which we actualize our potential.

Recommended Citation

Saad Al-Obaidi, INFLICTION OF PRECARITY: RISK, VULNERABILITY, AND TORT LAW, 34 J. L. & Pol'y 1 (2026).
Available at: https://brooklynworks.brooklaw.edu/jlp/vol34/iss2/1