Is Disability a Tort and Why?

Recent changes in conceptions of disability pose a challenge for tort law theory, which amounts to making sense of this area of law without reinforcing outdated negative views about disabled people. This article takes up this challenge by critically engaging with Gregory Keating’s recent book Reasonableness and Risk: Right and Responsibility in the Law of Torts (2022). Drawing on social conceptions of disability and impairment, it criticizes Keating’s characterization of physical injury as a harm-based tort, one that diminishes people’s capacity for agency. By contrast, it suggests that physical injury is a sovereignty-based tort, which Keating defines as an unjust interference with people’s protected zones of discretion. This article argues that reconceptualizing physical injury like so provides a sound theoretical basis for tort law doctrine, including its prioritization of safety. It also better aligns with disabled people’s lived experiences and can reduce negative stereotypes of disabled people perpetuated by current tort law practice.