Toxic Exposure is Complicated

Almost all personal injury actions involve the legal concept of negligence or strict liability.  While there are exceptions and every case is fact specific, broadly speaking, negligence requires that the Plaintiff proves four things:

  • Duty
  • Breach
  • Causation
  • Damages

The concept of duty seems simple enough. A person has a duty to not act negligently so as to injure third parties. A surgeon has a duty to not negligently harm patients under his or her care.  The standard of what is and is not negligent is guided by those set in the Defendant’s industry.  The standard of care for a surgeon is guided by what the medical community considers appropriate care.

Sometimes there are no professional standards in place, such as the driver of a personally operated vehicle. In this case the standard is the reasonable person standard. In other words, drivers have a duty to drive their personally operated vehicle in the same way that a reasonable person would. Breach is also relatively easily understood. A person breaches a duty if and when he or she did not live up to the specific standard.


Causation refers to when a specific foreseeable outcome results from a specific set of events.  It is foreseeable, for example, that a person will get hurt if a bus driver drives in an erratic manner.  Foreseeability is the required element. The law refers to this foreseeability test as the “but for” test. In other words, can you say that but for the actions of the Defendant, the offensive act would not have occurred? The last element – damages – is also relatively simple. The Plaintiff must be able to point to a specific set of injuries or a specific harm that can be related back to the actions or inactions of the Defendant.

The concept of strict liability is quite distinct from the four-part test outlined above. The law presumes that there are some activities that are so hazardous that no matter how much care a person (or company) engages in, they are liable if someone is harmed as a result of exposure to the offensive material. Simply having a heightened risk is not enough, you need to show an actual injury. For example, storage of high explosives could garner strict liability.


It is under one of these two types of theories that almost all toxic torts exist. For example, an oil refinery that releases harmful chemicals into the air may be liable for its negligent discharge that harms or even kills many people. Likewise, if the chemicals were dangerous enough so that even if they were not negligent – say for example the chemicals were being transported via rail and the railroad company was negligent – they may still be liable. Toxic torts are very complicated cases, usually involving many experts including doctors, chemists, environmental consultants and engineers. Linking the injury to the exposure is generally a simple thing in the mind of the victim because they know what they know. The Defendant, however, is not going to make it easy for the Plaintiff to prove its case and will line up their own set of experts to poke holes in Plaintiff’s theory of the case.


If you or a loved one were harmed due to exposure to toxic or hazardous substances, you need an experienced law firm who has the background and ability to see your case through to the end.  The law firm of Napoli, Shkolnik, PLLC will see to it that your voice will be heard throughout the case. You can reach us at 212-397-1000 or complete our online contact information form so someone will call you about your case.