Tort Claims as Intangible Property: An Exploration from an Assignee\u27s Perspective

Dean Prosser has pointed out that a major function of the law of torts is to allocate losses arising in the course of human activity by placing the burden of the loss on the party at fault. Tort causes of action are both diverse and plentiful in our society, and few persons can avoid being a tort victim at one time or another. Prior to suit, the injured party becomes the “owner” of a tort cause of action. Even though “ownership’’ is involved, it may seem awkward to classify a tort cause of action as personal property. This difficulty is lessened, however, when the monetary value of the cause of action is established through settlement with the tortfeasor or by a court rendered judgment. In any event, our law recognizes that many tort causes of action, as well as rights pursuant to tort settlement or judgment, are as assignable as most personalty. Despite this situation, the origins, evolution, and present state of the law concerning the inherent assignability of tort claims in the United States has never been subjected to close analysis and comment. This is somewhat surprising in light of the substantial body of legal literature relating to the inherent assignability of rights ex contractu, and the fact that in some jurisdictions certain tort claims remain unassignable, a remnant of the archaic and outmoded English doctrine which prohibited assigning choses in action. Also neglected by the commentators’ has been the effect of such tort claim assignments on the parties to the assignment inter se and third persons not parties to the assignment. This absence of analysis is also perplexing because tort claims have been assigned to meet a variety of commercial and noncommercial needs, and questions relating to the validity and effect of such assignments have been litigated. This paper will attempt to fill these commentary voids