Legal Theories of Toxic Tort Liability

Learn how defendants can be held legally responsible for injuries in toxic tort cases.

In a "toxic tort" lawsuit, a person (or group of people) alleges that a substance -- such as a dangerous chemical or a pharmaceutical drug -- caused them to get sick or injured. Plaintiffs (people who have been injured) in toxic tort cases can pursue claims based on legal theories like negligence, strict liability, or fraud. Family members may also be able to sue on behalf of a loved one who died as a result of exposure to a dangerous substance. To learn more about these legal theories, read on. (To learn about the ins and outs of toxic tort litigation, see Nolo's article Toxic Torts Overview.)


Negligence is the legal term for any careless behavior that causes (or contributes to) an accident or injury. A person bringing a negligence claim (the plaintiff) must prove that 1) the defendant had an obligation to act with ordinary or reasonable care toward a certain person or toward the general public, 2) the defendant's action (or failure to act) did not meet this duty, and 3) the defendant's action or failure to act caused harm to the plaintiff.

For example, in a toxic tort lawsuit over an oil refinery's alleged contamination of local groundwater, plaintiffs would have to show that 1) the refinery had a duty to the public to prevent spills or leaks of benzene into the air or ground, 2) the refinery failed to prevent leaks and a leak did occur (perhaps due to an explosion inside the refinery), 3) the leak caused benzene to seep into the town's water supply, and 4) residents of the town developed leukemia from drinking water contaminated with benzene. (To learn more about benzene litigation, see Nolo's article Benzene Exposure, Health Risks & Litigation.)

Other types of negligence claims include:

  • negligent failure to warn the public of the dangers of a product (for example, a pharmaceutical company might be negligent if it failed to warn drug users that a particular drug could cause strokes), and
  • negligent failure to investigate the dangers of a chemical used in a product (for example, a pesticide manufacturer might be found negligent if it used a dangerous chemical in its product without adequately investigating whether that chemical could harm people).

Strict Liability

Legislatures and courts have found certain kinds of behavior to be so dangerous that anyone engaging in it will be held legally responsible for any damages that result. This "strict liability" standard means that the plaintiff in these cases does not have to show that the defendant acted carelessly. Strict liability is the underlying theory in many defective product cases. In these kinds of claims, the plaintiff must show:

  • the product was defective (either because it had a faulty design, was manufactured incorrectly, or failed to include proper instructions or warnings)
  • the plaintiff was injured, and
  • the injury was caused by the defect.

Product liability law is used in many pharmaceutical drug cases. (To learn more about drug cases, see Nolo's article Product Liability Claims Involving Pharmaceutical Drugs.)

Intentional Misrepresentation or Fraud

In some toxic tort cases, evidence may show that a defendant knew that a substance was dangerous, but deliberately concealed the danger or marketed the product using misleading statements. In these cases, a plaintiff may have a claim for intentional misrepresentation or fraud.

For example, from 1938 to 1971, many pregnant women took DES (diethylstilbestrol), a synthetic estrogen prescribed to prevent miscarriage. Studies later showed a link between DES and health problems in the daughters of the women who took it -- including reproductive abnormalities and an increased risk of developing a rare form of cervical cancer. In the many lawsuits filed on behalf of DES daughters, plaintiffs alleged that DES manufacturers knew of -- and concealed -- the dangers of DES long before they removed the drug from the market.

Wrongful Death

Wrongful death statutes allow family members to sue on behalf of a person who died. Generally, family members bringing a wrongful death lawsuit must prove all of the elements of the underlying liability theory -- whether it be negligence, strict liability, or another type of claim. Wrongful death cases are governed by state laws, so family members must follow the specific rules in their state when bringing a lawsuit on behalf of a deceased loved one. (To learn more about wrongful death claims, including who may sue on behalf of the decedent, see Nolo's article Wrongful Death Claims: An Overview.)

Getting Help

Claims involving toxic torts are usually not the kind of lawsuits in which you can represent yourself effectively. The legal and scientific issues in such cases are often complex and sophisticated. Depending on your case, you may wish to retain the services of a lawyer who specializes in toxic tort litigation or the precise toxin at issue.

You may also want to consult with a lawyer to find out if there is an existing class action lawsuit regarding the chemical or drug that concerns you and, if so, whether it is a good idea for you to join that class action. (If there is an existing class action, consider contacting the lawyers for the class directly; they will likely be very interested in talking with you.) Such initial consultations are usually free of charge.

For help in choosing a good personal injury attorney, read Nolo's article Finding a Personal Injury Lawyer. Or go to Nolo's Lawyer Directory for a list of personal injury attorneys in your geographical area (click on the "Types of Cases" and "Work History" tabs to find out about the lawyer's experience, if any, with toxic tort litigation).

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