A Forecast on Suing the Weatherman

First of all, apologies for my disappearance. The last two weeks have been hectic, and I have been most neglectful of the blogging duties. I hope to resume them now.

My first comeback post will be a lighthearted one though. The New York Times Magazine has an entertaining piece―actually, an adaption of a excerpt from a book on prognostication by Nate Silver―on the science and art (there is, still, a good deal of art) of the weather forecast. Whatever we might think in our more cynical days, Mr. Silver says that the accuracy of these forecasts has increased a great deal over the last few decades:

In 1972, the  [National Weather S]ervice’s high-temperature forecast missed by an average of six degrees [Farenheit] when made three days in advance. Now it’s down to three degrees. … Perhaps the most impressive gains have been in hurricane forecasting. Just 25 years ago, when the National Hurricane Center tried to predict where a hurricane would hit three days in advance of landfall, it missed by an average of 350 miles. If Hurricane Isaac, which made its unpredictable path through the Gulf of Mexico last month, had occurred in the late 1980s, the center might have projected landfall anywhere from Houston to Tallahassee, canceling untold thousands of business deals, flights and picnics in between — and damaging its reputation when the hurricane zeroed in hundreds of miles away. Now the average miss is only about 100 miles.

Now 100 miles still seems like a lot to me. (It’s comparable with the radius of a hurricane itself.) Still the accuracy of the forecasts is improving – fast. Now to the legal part of the post.

For the moment, even if I rely on a negligently prepared forecast (and is Mr. Silver notes, it is not “unheard-of for a careless forecaster to send in a 50-degree reading as 500 degrees”―with all the consequences imaginable, if the error is not caught before the figure is fed into the computer and wrecks all the forecasts it produces) and have a miserable day as a result, or even suffer material losses, I cannot sue the weatherman. Technically, that is because he owes no duty of care to the general public. But then the manufacturer of ginger ale in Donoghue v. Stevenson also thought he owed no duty of care to those who drank his snail-infested brew.

It is said that courts quietly subsidized the industrial revolution by employing all manner of legal doctrines to deny compensation to its victims―workers, consumers, and bystanders alike. But as the revolution became the new normal, the subsidy was no longer necessary, and so it was withdrawn, sometimes by legislation, and sometimes by courts themselves. One way of seeing the Donoghue v. Stevenson case is that it was an indication that thenceforth, manufacturers would be held to a duty of care towards consumers, where none was imposed before―not only, because of the injustice of denying compensation to the consumer, but also because manufacturing was no longer a new, and therefore inherently uncertain, process that could never really be trusted to deliver consistently reliable results.

So here’s my question. As the accuracy and reliability of the forecasts increases, will there come a point at which courts impose a duty of care on forecasters, so that suing the weatherman will no longer be impossible?

Author: Leonid Sirota

Law nerd. I teach public law at the University of Reading, in the United Kingdom. I studied law at McGill, clerked at the Federal Court of Canada, and did graduate work at the NYU School of Law. I then taught in New Zealand before taking up my current position at Reading.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

%d bloggers like this: