56 hvlr 72 seavey principles of torts

Harvard Law ReviewSeptember, 1942

*72 PRINCIPLES OF TORTS

Warren A. Seavey

Harvard Law School

Copyright © 1942 Harvard Law Review Association; Warren A. Seavey

UNTIL a relatively recent period the subject matter now assembled under the generic term “Tort” wasnot dealt with as a unit by law writers, but was considered piecemeal under such titles as assault, defama-tion, deceit. The first treatise bearing the name “Torts” was issued in 1859 by Hilliard, an American author.In 1860 came an English publication by Addison. Ten years later Mr. Justice Holmes, in reviewing an edi-tion of Addison's work abridged for the use of students of the Harvard Law School, said: “We are inclined tothink that Torts is not a proper subject for a law book.” Bishop was driven to the term “non-contract law.”However, the unity of the subject was becoming more apparent, and shortly thereafter Pollock wrote a schol-arly treatise which, presumedly not ironically, he dedicated to his friend, Mr. Holmes. It is now generally re-cognized that, however diverse may be the situations included within the field, there is a predominant pur-pose which the law serves in actions of tort and that there are principles which run through the entire sub-ject, so that it is entitled to be regarded as a distinct branch of the law.

First, to assign torts to a position in the legal scheme: The entire group of remedial actions serve fivedistinct purposes: (1) to give to a person what another has promised him (usually vindicated in an actionupon a contract); (2) to restore to a person what another has unjustly obtained at his expense (usually thebasis of a quasi-contractual action); (3) to punish for wrongs (the historical function of the criminal law) andto deter future wrongdoing; (4) to compensate for harm (the most important function of tort actions); and (5)to determine the rights in property (the basis of many different types of action).

An action of tort may perform any one of these functions. Thus the actions of replevin and trover are insubstance quasi-contractual. An action for deceit may give to the plaintiff what was promised in states inwhich the contract measure of damages is given; in other states it may restore to the plaintiff the value ofthat of which he was improperly deprived. An action of tort may serve to punish or deter, as where recoveryis allowed although *73 there has been no harm or where, implicitly or expressly, punitive damages areawarded. An action of tort is also frequently brought to determine rights in property, as in the action knownas “trespass to try title,” or in an action for infringement of a copyright where no substantial damages areclaimed.

In spite of these varied purposes served in actions of tort, harm is the tort signature. In general, the ac-tion is based upon the theory that one person has caused harm to another. Thus it is distinguished from crim-inal law, which directly vindicates the interests of the state; from the law of contracts, which gives sanctionto promises; and from the law of restitution, which seeks primarily to prevent unjust enrichment. It is truethat in such actions as those for trespass and defamation, the existence of harm is sometimes a legal fiction,and that a person may become responsible for harm done by things or persons under his control although hisexercise of control has in fact caused no harm. Nevertheless the causing of harm is predominantly the basisof tort actions.

56 HVLR 72 56 Harv. L. Rev. 72

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.

In determining whether there is tort liability when harm has been caused, the focal point of conflict hasbeen whether one should be liable for harm irrespective of fault. The law has been in a state of flux in its de-sire to protect the two basic interests of individuals — the interest in security and the interest in freedom ofaction. The protection of the first requires that a person who has been harmed as a result of the activity ofanother should be compensated by the other irrespective of his fault; the protection of the second requiresthat a person who harms another should be required to compensate the other only when his activity was in-tentionally wrongful or indicated an undue lack of consideration for the interests of others. At any giventime and place the law is the resultant derived from the competition between these two basic concepts.

Primitive law stressed security. In the eighteenth century, under the influence of doctrines of natural lawand of laissez faire, emphasis was placed upon freedom of action, and culpability tended to be the basis fortort liability. Nineteenth-century jurisprudence referred all legal problems to the idea of free will. The Napo-leonic Civil Code of 1804 adopted the Roman Law principle of Aquilian culpa as a general basis of tort liab-ility, and in common-law countries an attempt was made to state the entire law of *74 torts in terms of culp-ability. Towards the end of the century, however, juristic thinking recognized that there should be a twofoldbasis for the law of torts and that, in striking a balance to determine what most nearly satisfies the needs ofall, both the concept of security and that of culpability must be used in varying degrees. The first concept re-quires that one who engages in activity, employs others, or controls things should be liable for harm causedby his activities, agencies, or things, even though he is without fault. The second concept requires that a per-son whose conduct is not wrongful should not be required to pay for the harm it causes. In the adjustmentbetween them, as much effect is given to each as can be granted with the least infringement of the other. Asa rough generalization, it may be said that one who intentionally meddles with another, his things, or hisreputation is liable in accordance with the first idea, while the conduct of one having no such intentioncomes within the second.

From the struggle for supremacy between basic ideas, principles governing decisions in specific caseshave emerged. These principles differ from the rules announced in court decisions in that they may not havea universality of application to specific situations. Derived inductively from a consideration of the entiremass of rules, they indicate general tendencies in the law and disclose fundamental ideas from which specif-ic rules are built. Like specific rules they are subject to change, but the rate of change is normally slow.Rules may change without affecting principles; principles change only in response to a changing economicor social viewpoint or condition. A decision can properly be sustained although it runs counter to a prior de-cision if it accords with principle. A decision which violates a principle can be sustained only if the principleis no longer adapted to the needs of the community.

The principles with which this paper deals are those which by and large apply irrespective of the subjectmatter or of the form of action. In actions for harm to the person the same principles apply as in actions forharm to tangible things, reputation, or profitable relations. The differences are largely in the degree of pro-tection afforded to a particular interest — differences due to accidental retention of older ideas, to the factthat some interests have been protected only recently, or to the relative administrative ease or difficulty inprotecting various interests.

*75 I. BASES OF LIABILITY

A person is subject to liability in tort only if

(a) he has caused harm to another, or(b) he has jailed to perform his duty to protect another dependent upon him, or(c) something of which he is possessed or something or someone over whom he has control has



caused harm to another.With few exceptions, the Anglo-American law of tort creates liability only for harmful interference with

the interests of others. The idea is perhaps better expressed by saying that, in general, a person has no dutyto benefit another. Thus a person has no duty to support strangers or to protect them from harm, even thoughlittle effort would be required to avert disaster. Aside from the individualistic basis of common-law concep-tions, the result can be justified, in most cases at least, on the ground that it is difficult to lay down a stand-ard of conduct which could be well administered.

Two important limitations on this generality are stated in the principle above. Situations in which liabil-ity is based purely upon a relation, or upon possession or control, are frequently difficult to distinguish fromthose where liability can be predicated upon the causing of harm. In many cases both bases of liability exist.Thus one who takes possession of a structure which would have been repaired had he not assumed control ina very real sense causes the harm which results to others from his subsequent failure to make repairs result-ing in the dilapidation of the premises. A person who employs a servant — and thus obtains that sophistic-ated form of control over physical acts which is sufficient to create responsibility for the acts of the servantin the scope of employment — is a causative factor in harm which results from the employment.

In some cases, however, liability rests solely upon a relation between parties, or upon possession ofthings or control of a situation. These situations will be examined before the general principle of liability forcausing harm is described in detail.

*76 A. LIABILITY BASED UPON A RELATION

A person has a duty, normally a duty of care, to protect from harm others who, because of a relation in-to which he has voluntarily entered, are dependent upon him.

The common law imposes a duty upon a husband or parent to protect a wife or minor child. This duty isenforced by the criminal law, by quasi-criminal proceedings, by restitutionary action, or by divorce proceed-ings; aside from statute, a husband or parent has an immunity from an action of tort by a wife or child. Aship owner has a duty to protect the seamen; a master a duty of protecting apprentices; a guardian a duty toprotect his ward. A carrier has a duty to protect passengers; an innkeeper a duty to protect guests.

Such duties are defined by law and the existence and extent of the obligation cannot be diminished dur-ing the life of the relation by those subject to them. Statutes may extend liability to persons who have notconsented to enter into a relation, as where a statute requires a child to provide for an indigent parent. Wherea duty exists and failure to perform it results in harm, the legal liabilities are the same as those which existwhere a person has caused harm.

Similar duties may be created by agreement, as where one person has contracted to protect another. Butin such cases, however, liability exists only if the assumption of the duty has resulted in reliance, and ifharm has resulted from the combination of promise, reliance, and failure to perform. Because of this a gratu-itous promise, if reasonably relied upon, would be as effective a basis for tort liability as would a contractualobligation. Whether or not the promise results in a contract, the promisor may relieve himself from tort liab-ility by such notice as will prevent the continuance of reliance. It should be noted also that, on the same the-ory, where one promises another to protect a third person, the third person may have a tort claim against thepromisor if the failure to perform results in harm. Thus the gateman at a railway crossing who, in neglect ofhis duty to his employer, fails to warn an approaching traveler may be liable to the traveler for harm sufferedin a collision. This may be true whether or not the railroad had a duty to have a gateman if it has been cus-tomary to have one. For *77 if the traveler had been led to rely upon receiving the warning and the railroadrelied upon the performance of the duty, the gateman's assumption of duty plus his failure is a cause of the



harm.

Where liability is based upon a relation in which the duties are fixed by law, there may also be liabilityupon the ground that the failure to perform is a cause of the harm. Thus a father who deserts an infant ofwhich he has charge may be liable both by virtue of his parental relation and on the ground that by takingcontrol he has prevented others from caring for the child.

B. DUTIES BASED UPON POSSESSION OR CONTROL

The possessor of a chattel or of land not in its natural state, or one who has assumed control of others,has a duty, normally a duty of care, to prevent that which he possesses or controls from causing harm to an-other, except to an intermeddler or a trespasser.

The mere existence of an ability to exercise control over things is not of itself a basis for legal liability.One who has power to prevent a disastrous occurrence and who, even intentionally, fails to exercise thepower is not thereby liable for the resulting harm. A person who could easily prevent another from drowningand fails to do so is under no liability, even though he refrains with the desire that the other shall die. Where,however, one assumes control over land or chattels which are dangerous unless cared for, and thereby ex-cludes others, a normal basis for tort liability exists if he fails to care for the property and someone isthereby hurt. In most cases it would not be too violent to assume that, had he not taken control, the one fromwhom he took control could have prevented the harm. In other cases, the assumption of control will lead toreliance by others upon its proper exercise. But it would seem proper to consider the possession of things orthe voluntary assumption of control over either things or situations as an independent basis for tort liability.This would follow not only from our customary methods of thought, which place these situations in a dis-tinct category, but also from the fact that in a few situations liability may exist although there was no volun-tary assumption of control, or no failure to exercise control properly, or although the existence of control inthe defendant was not a cause of the harm.

As illustrations of situations where there is no voluntary *78 assumption of control, these cases may besuggested: One may become the owner of land without volition and yet have imposed upon him the obliga-tions of a possessor. Thus a young child may receive land as an heir and apparently become subject to thesame liability as any other possessor — at least to the extent of the value of the premises. Likewise a personis made responsible for the control of his physical being. Thus one who, knowingly, has become infectedwith a dangerous disease has a duty to warn others away from the contagion.

The chief illustration of liability where there has been no failure to exercise control properly — that is,where there is liability without personal fault — is in the field of master and servant. Here there is a relationin which control, or more exactly power to exercise physical control, is the most outstanding element.Whether or not the master's liability has been built on a theory of identification, on the “long purse” cyn-icism, or on the idea that the loss from accidents should be spread, it is ordinarily the power of control whichis stressed in the opinions. It may perhaps be significant also that the two other situations in which Englishcourts have retained absolute liability are those involving possession of animals or of land, although here itmay properly be said that liability is based upon the necessary precedent activity in acquiring and bringingupon the land the things which escape to harm others.

Finally, the taking of possession or control may have no causal connection with the harm. Thus where agoing business is purchased and one of the servants causes harm before the new owner has had an opportun-ity to give directions, or where a dilapidated building falls into a highway a few minutes after title and pos-session have passed, any liability of the new master or owner cannot be based on a theory that he hasharmed the injured person, but must be founded on a conception that the one in possession or control is —



for that reason alone — responsible for the harm caused by that which he possesses or controls. It is true,however, that except where possession has been taken of land or chattels, or where there is a relation such asmaster and servant, no basis for legal liability exists merely from a manifestation that one is in control or in-tends or promises to control. Thus one who takes charge of a rescue can stop at any moment without liabilityunless others have relied upon his assumption of control.

*79 Once the duty to protect others has been found, the consequences of an intentional or negligent fail-ure to act are the same as where there has been intentionally wrongful or negligent activity. One who inten-tionally fails to restrain a dog under his control from harming a third person is subject to the same liabilityas if he had incited the dog. So one who permits children to play ball upon his land near a neighbor's glasshouse may be liable to the neighbor for the breaking of the glass.

Possessors of Land or Chattels. — There are some additional matters which it is important to spell outin connection with possession. By and large, a possessor of land is subject to no liability for harm caused byit to persons outside of it if the land is in its primeval condition or has been changed only by normal cultiva-tion. Aside from statute, this is true although the possessor realizes that the land will cause harm: as wherethe owner of a hillside sees that large boulders from it are being moved by the frost and will slide upon hisneighbor's land lower down, or where the owner of a natural swamp knows that his neighbors are beingharmed by mosquitoes which emanate from it. In these instances, the result can be supported on the groundthat people who buy or live upon land have not paid for and should not expect improvements of neighboringlands, since these would be in the nature of benefits conferred upon them. There is, however, a tendency toimpose liability in a limited number of situations — particularly those involving border trees in towns andsuburban districts. There would also seem to be a duty to use care to extinguish a fire started in a naturalwood or prairie either by the act of man or by a natural force; and if such a duty exists, there should be aduty to prevent harm from the toppling of a forest tree weakened by lightning. Such a result is in line withthe tendency to impose a duty upon possessors to prevent third persons from using the land to the detrimentof the neighbors.

For artificially created conditions upon the land, the possessor becomes responsible to persons outside ofit, whether these have been created by a predecessor, by himself, or by others. For anything done upon theland with his consent, his liability may be referred to his consent. There is, however, a pronounced tendencytoday to make him responsible for unpermitted acts of third persons — where, for example, they create anuisance upon his *80 land — if he has reason to know of the acts and that they are dangerous to others.

The duty of a possessor to adult persons who enter the land is wholly self-imposed. Unless he has under-taken a public calling, he has no duty to them if he is guilty of no deception. To an adult who enters withoutconsent — that is, to a trespasser — he has no duty except that he must not set a trap for the purpose ofharming him. This immunity from liability does not exist because the trespasser has been guilty of wrongfulconduct or contributory negligence, or has assumed the risk, but because the possessor has no duty to main-tain his premises in safe condition for trespassers or to warn them of hidden dangers. In fact, his immunityextends to persons who are not trespassers but who enter his land without consent. Thus one who takesrefuge from a storm in an apparently safe but in fact dangerous shed, which because of the exigency hewould be privileged to enter, has no action against its owner if the shed collapses upon him. If, however, apossessor permits or invites persons upon his premises, reasonable inferences of fact may be drawn from thepermission or invitation in accordance with common understanding. Persons permitted to enter primarily fortheir own benefit or for a nonbusiness purpose may assume at least that there are no hidden dangers ofwhich the possessor is aware. Persons entering for a business purpose or in a belief induced by the possessorthat the place is open to the public have a right to assume that the possessor has used care to discover hiddendangers, and either that no danger exists or that warning will be given of it. The resulting duty is not tomaintain the land in safe condition, but to give reasonably adequate warning of hidden dangers which due



care would reveal. If the possessor deceives persons into entering with the belief that his premises are actu-ally public property, he has the further duty of using care to maintain them in safe condition. Thus one whomaintains a walk parallel to and apparently part of a public road would be liable to one injured by a hiddendefect negligently permitted to remain.I

In many states the immunity of landowners from liability to trespassers does not extend to persons un-able adequately to protect themselves from dangers on the land. There is now a general tendency to imposeliability upon a possessor where his land is in an artificially created condition such that there is a serious riskof *81 children entering and suffering serious harm. This liability is not based upon an implied invitation oreven upon enticement, since the latter should not be, and generally is not, essential; the factors considered indetermining liability are those which exist in other cases of negligence — that is, the extent of the risk tochildren on the one hand, weighed against the desirability of permitting a landowner to use his land withouttoo expensive protective measures.

The duties of the possessor of a chattel are similar to those of the possessor of land and the same prin-ciples are applicable. The liabilities which result from activities upon land are considered later.

C. LIABILITY RESULTING FROM ACTIVITY

Legal liability for activity causing interference with an interest of another depends upon the nature ofthe interest, the conduct which causes the interference, and the state of mind which induces the conduct.

The Interest. — The law protects only those interests of an individual which have social value. It doesnot protect the factual interest which one may have in doing an act in revenge or hatred or with the desire toharm. Nor does it protect the interest which one may have in achieving an unlawful result or in using unlaw-ful means.

The interests recognized by law are protected in varying degrees, those which were first given recogni-tion receiving more extensive protection than those which appeared later. The interests in bodily integrity,freedom, and reputation, together with those in the possession and ownership of land, are the most highlyprotected. A very slight interference is sufficient for a cause of action. In this field we find that liability mayexist without actual harm, as in the case of an assault which may in fact induce no disagreeable emotion, atrespass to land which may be beneficial rather than otherwise, and a defamatory statement which is not be-lieved by anyone. The possession of chattels is protected to a slightly lesser degree, the only difference be-ing that they probably are not protected against nonharmful trespasses not amounting to conversions. Allthese interests are protected against mistaken and nonfaulty acts, as where a bona fide purchaser acquires astolen chattel, or where a person without personal fault makes an *82 apparently harmless statement aboutanother which proves to be defamatory.

The interest in economic advantage is protected by the law of torts against statements known to be un-true, to an increasing extent against negligent statements, and — where the rules with reference to estoppeloperate — against innocent misstatements. The economic interest resulting from advantageous relations withothers is protected only against known interference, as in the case of an interference with contractual or giftrelations. In some instances, in fact, such an interest may be protected only against acts done for the purposeof accomplishing the result. Thus where, with knowledge that another is insured, one person kills the other,the insurance company has no cause of action unless the killing was for the purpose of defrauding it or oth-erwise harming it. The right of privacy, tardily recognized only as privacy was on the point of elimination, isprotected only to a very limited extent. There is substantially no protection afforded to the interest in nothaving disagreeable emotions unaccompanied by physical harm and not the result of a common-law trespassto the person. Thus, except by statute, it is not tortious to insult another or to tell him disagreeable truths —



or even untruths — unless other than mental harm results.

The Conduct. — Except where a duty to act is imposed because of a relation or possession, legal liabilityin tort depends upon some form of activity. This activity may consist of physical movement or it may be thecommunication of ideas. It may consist of causing a physical movement, as where one person directs anoth-er to act, or of causing a change in pecuniary condition, as where by inducement one causes another to viol-ate a contract with a third person. The activity may consist of selling or permitting another to deal with prop-erty; in such a case it is the giving of consent which causes the subsequent using of the property. Thus if amanufacturer sells a defective automobile which, in the hands of the purchaser, causes harm to him or to athird person, the liability of the manufacturer is based upon the fact that he permitted a defective chattel tobe used so that it could cause harm.

The activity may consist of the assumption of control and a subsequent failure to act. But here there is li-ability only if the assumption of control induces reliance by others upon its exercise. *83 Thus if a personwere to promise to rescue another from a dangerous situation, his liability for failing subsequently to makethe rescue would depend upon whether his promise induced others, including the person to be rescued, not totake whatever effective steps they would otherwise have taken. The assumption of control, as has beenstated, is in some cases independently a basis for liability.

It is unimportant whether the activity consists of physical motion or of the conveyance of an idea. Thusmisleading conduct or untrue statements may be as effective a cause of physical harm as of pecuniary loss.The liability of landowners to persons invited or permitted to enter the land, and of manufacturers for phys-ical harm done by their defective products, is ordinarily based on a misrepresentation with reference to thesafety of the premises or the chattel. On the other hand, a physical act may lead to an interference with ad-vantageous relations, as where a tradesman shoots at the customer of a competitor, or to defamation, aswhere one person shadows another. It is not the kind of activity but the state of mind and the result achievedwhich determine whether the conduct is tortious.

State of Mind. — For legal liability the state of mind is as important as the physical movement. An actupon which legal liability is ordinarily based is a movement resulting from volition. Beyond this, however,the state of mind which leads to the volitional impulse is of determinative importance. Thus if one shoots an-other, liability depends upon whether the result was intended, if so whether the act was done for a privilegedpurpose, or if not whether there was an intent to discharge the gun, whether the victim's presence wasknown, whether the shooter knew of other facts indicating that persons might be in the vicinity, and othersimilar matters involving the state of mind of the shooter. So, too, where one makes an untrue statement, hisknowledge of facts, his intent or lack of intent to mislead, and his purpose in misleading are ordinarily im-portant in determining liability. Where a duty results from a relation or from possession, or where there isvicarious liability, the state of mind of the person responsible may be unimportant; but where liability isbased upon activity, the actor's state of mind at some period of the activity is always relevant.

*84 1. INTENTIONAL INVASIONS

In the absence of a privilege, a person is subject to liability if he intentionally invades another's interestsof personality or reputation, or meddles with another's things or, in some situations, with the pecuniary in-terests of another, irrespective of fault or intent to harm.

This principle includes situations in which a person knows that a particular result will happen althoughhe may not act for the purpose of achieving it.

Where one intentionally deals with chattels or enters upon land, he may be liable although he intends no



interference with the interests of others. Thus if one person enters upon another's land or takes possession ofanother's chattel, his intent to achieve the physical result subjects him to liability in spite of a reasonable be-lief that the land or chattel is his. This type of situation is to be distinguished from the case where a persondoes an act, such as driving a car, which he has no reason to believe will result in the invasion of land orharm of any sort, but which does in fact result in an entry upon land or harm to something or someone. Onthe other hand, in the case of invasion of personality, an intent more than that of accomplishing a physicalresult may be required. Thus where one shoots at an object which he reasonably believes to be a wild animalbut which proves to be a man, he may not be liable, although he intended the contact between the bullet andthe object before him; there is no intent here to produce contact with another person. But mistaken identity,although reasonable, does not prevent liability in the absence of a privilege, as in the case of a physicianwho operates upon a person in the mistaken belief that consent has been given or manifested. Interferencewith family relations is sometimes a basis for liability if the physical result is intended although there is nointent to interfere with such relations. Thus one who has sexual relations with a woman whom he believes tobe single is liable to the husband. In defamation an intent to make statements about another which, in lightof the facts, prove to be defamatory, is a sufficient basis for liability. It would appear that even an innocentintent to speak or write is of itself sufficient, as where the defendant states that A is married to B and thisproves to be defamatory of C, the unknown wife of B. In *85 this field, too, we find liability without factualharm. Thus no factual harm need be suffered to maintain an action for assault, battery, false imprisonment,trespass to land, defamation, or criminal conversation.

Liability for interference with pecuniary advantage or with advantageous relations with others has beenlimited almost exclusively to intended interference. Thus a misstatement made to someone, without intentthat he or anyone else should act upon it, has been held an insufficient basis for tort liability, although thereis a present tendency to impose liability for negligence in such cases. Likewise an unintended — eventhough negligent — interference with another's contractual relations is not tortious. Thus one who shouldknow, but does not know, that goods which he buys from another have been promised to an earlier contract-or would not be liable to the disappointed purchaser. Further, where there is no use of tortious means, suchas force or deceit, the privileges to act are very extensive. Thus one who organizes a business which if suc-cessful will destroy the business of another will not be liable for such destruction unless he acts, not to bene-fit himself, but to harm the other. Even where tortious means are used with knowledge that another will beharmed as a result, there may be no liability in this field. Thus if A intentionally kills B, who is known tohave contracted to perform services for C, A is not liable to C unless the tort was committed for the purposeof harming C's interests.

2. NONNEGLIGENT UNINTENDED HARM

With minor exceptions, a person who does not intentionally interfere with the interests of another andwho acts carefully and lawfully is not liable for the unexpected harmful consequences of his act.

The general rule that one is not liable for a harmful consequence of lawful and careful conduct applies tomost human activities except where, as pointed out previously, there is an intention to deal with things orwith the interests of others. The liability of a trespasser for an unexpected harm to the land which resultsfrom his trespass is based upon the wrongfulness of his entry. The liability of one whose words unexpec-tedly prove defamatory can be based, in most cases, upon his intent to deal with another's *86 reputation.Criminal statutes, interpreted as imposing civil liability, ordinarily create standards of conduct analogous tothose created by the rules of negligence; most of such statutes which impose liability without fault are ap-plicable to some form of contractual relation, and liability can be predicated upon a failure to perform thecontractual duty. This would be true, for instance, where a statute imposes liability upon a seller of foodwhich without his fault has become adulterated. Workmen's compensation acts, which impose liability upon



the employer irrespective of negligence, create an insurers' rather than a tort liability.

In addition to situations involving vicarious liability, there are at least three exceptions to the rule thatthere is no liability for the unintended consequences of lawful conduct. In many states one who lawfullykeeps large domestic animals is liable if, without his negligence, they escape and trespass on another's land.Likewise a keeper of wild animals or known-to-be-dangerous domestic animals (or dogs, by statute in somestates) is responsible for harm resulting from their dangerous proclivities. This exception is an historic sur-vival and shows signs of disappearing. Another exception which exists in the law of the United States, strictliability for ultra-hazardous activity, is modern. The most important situations where such liability exists arethose involving blasting, the keeping of explosives, and the operation of airplanes. In such cases, because ofits importance to the public the activity is not considered unlawful, but absolute liability is imposed eitherbecause the risk of harm is great or because an accident, while it is unlikely to occur, would be catastrophicif it should occur. A few decisions have been based on a theory that for invasions commonly described asnuisances there may be liability without legal fault, but these cases would seem to be out of step with mod-ern reasoning. In fact, most nuisance cases involve a realization by the defendant that he is interfering withthe factual interests of others, although he may not have reason to believe that the interference is sufficientlygreat to be tortious. Aside from these situations, there is no clear indication of the acceptance of the prin-ciple of liability without legal fault for unintended physical consequences.

Although for harm to pecuniary interests something more than negligence is ordinarily required, yetwhere the doctrine of estoppel is applied there may be liability even without fault. Thus *87 where a trusteeuntruthfully but nonnegligently represents to a prospective purchaser of the beneficiary's interest that suchinterest is unencumbered, the purchaser may be entitled to an action against the trustee for failure to pay theamount which would have been due if the beneficiary's interest had been unencumbered. The resultsachieved by estoppel are ordinarily just, but the technique is artificial and its operation sporadic.

The absolute liability of a master for the torts of his servant and, in a limited number of cases, of a per-son for the negligence of a contractor whom he has employed rests rather upon a relational than upon apurely tort basis.

3. DUTY NOT TO CREATE RISKS TO OTHERS

A person has a duty not to permit his activities (or things of which he is possessed, or things or personsover whom he has assumed control) to create an undue risk of harm to any protected interest of another.

This principle includes both the case in which the person causing harm is inadvertent to the threatenedharm, and the case where, although he realizes the existence of risk, he neither desires nor believes that harmwill result. The conduct which creates an undue risk of harm is treated as blameworthy in different degrees,which are indicated by the term negligence, gross negligence, and recklessness, these words describing inascending scale the seriousness of the departure from the normal standard of conduct.

Scope of Application. — The principle has chief importance or application with reference to physicalharm to persons or tangible things. For harm to reputation, negligence is immaterial, except where a ques-tion of publication or conditional privilege is involved. For harm to pecuniary interests there is as yet nogeneral recognition of liability for negligent statements. Except in a few states, there is no liability for negli-gent misstatements which the speaker should, but does not, realize will be acted upon by others. The liabilityfor negligent, or even nonnegligent, statements made in the course of contractual dealings is in substance acontractual or quasi-contractual liability. The absolute liability which the rules of estoppel may create is outof line with this principle.



The general rule imposing liability for “ordinary” negligence *88 may be modified by a relation betweenthe parties, as in the case of host and nonpaying passenger in a car, in which case, by statute or otherwise,the host is liable in most states only for “gross negligence” or worse. Likewise in many states the possessorof land is not liable for activity creating risk of harm to an undiscovered trespasser, even though his pres-ence should have been anticipated; in some states he is not liable to a seen trespasser or even to a gratuitouslicensee, unless guilty of reckless or wanton conduct.

Standard Qualities. — Where a person's conduct may cause harm to another, he is under a duty to act aswould a person having such knowledge, intelligence, and consideration for the interests of others as is pos-sessed by the normal person in the community. The existence and extent of risk are not dependent upon thefacts as they exist, but are subjective to a standard person at the time and place. A person who is below thestandard of the community in any of these three stated qualities is subjected to liability for harm caused bysubstandard conduct, although he has not been guilty of personal fault. Thus a person who does not realizethe danger inherent in his pile of moist hay may be liable for a fire caused by its spontaneous combustion.On the other hand, where a person has greater knowledge or intelligence than the normal, he is under a dutyto exercise such superiority as he has; if he represents that he has more than the normal knowledge or intelli-gence and causes others to rely upon his representation, he has a duty to exercise that which he professes tohave. Thus one who obtains consent to perform an operation by professing to have the skill of a surgeon isliable for harm resulting from his lack of such skill as is possessed by reputable surgeons in the vicinity. Ex-cept by representation or contract, a person is under no duty to exercise more than normal consideration forthe interests of others. The fact that one believes himself negligent or that he has departed from a self-imposed standard of conduct is immaterial. The acts required to be done and the precautions required to betaken vary with the physical ability of the actor. Thus on the one hand it would be negligent for a blind manto act as if he could see; on the other hand it would not be negligent for him to cross a street with appropri-ate precautions, although it would be negligent for a person with normal sight to act similarly with closedeyes.

*89 Competing Interests. — The factors which determine whether the risk of harm is undue are, on theone hand the extent of the chance that some harm will eventuate and the size of the harm which will result ifthe risk matures in harm, and on the other hand the utility of the type of conduct. Persons who act necessar-ily create risks to others, and unless activity is to be entirely at the risk of the actor it is only where the riskbecomes excessive that liability is imposed. Since the public is interested in having activities conducted, thelaw recognizes a privilege for a person who acts in the advancement of his own interests, the interests of athird person, or those of the public, to create risks of harm to third persons which are not disproportionate tothe interests sought to be advanced or protected.

In determining whether the type of conduct is advantageous to the public, the particular purpose withwhich an act is done may or may not be considered. Thus one who is driving on the highway is not subjectedto an increased standard of care because he is on his way to commit a crime; in such a case it is the generalinterest in freedom to drive which is considered. On the other hand, a public interest in a particular act maybe so great as to excuse what would otherwise be negligent conduct, as in the case where one acts in self-defense or for the protection of others. Thus under most circumstances it would be negligent to shoot a re-volver in a public street, but this would not necessarily be so if the shooting was done in self-defense.

The Harm. — Liability for negligent conduct exists only when it causes an appreciable harm to a fullyprotected interest of another. Negligent contact with the person or things of another results in no liability un-less appreciable harm is caused. Nor is negligently induced fear or other disagreeable emotion a basis for li-ability unless it accompanies or induces harm to the body or to some other fully protected interest — as, forexample, the interest in reputation. Thus one who by a negligent impact causes the mutilation of a dead bodyis not thereby liable to the members of the family of the deceased for the mental shock caused, although if



such mutilation were caused intentionally or recklessly, there would be liability irrespective of resultingphysical harm.

Factual Cause. — A negligent person is not liable to another unless his negligence is, in some degree, afactual cause of harm.

*90 Ordinarily he is not liable unless, but for his act, the harm would not have occurred. If, however, hecooperates with or encourages others, or if his act together with another's act leads to a single harm, he maybe responsible for the entire harm. Thus where each of several persons successively wound a victim, eachmay be a responsible cause of death resulting from the loss of blood. But an all contributing only slightlymay be disregarded for legal purposes. Where a harm results both from a tortious act and from a naturalforce which alone would have caused the harm, there is some tendency to deny legal responsibility.

Harm within the Risk. — For acts which are tortious because done with lack of care, liability extends —and extends only — to those persons who and to those interests which are within the risk of harm. This prin-ciple underlies the rules commonly stated in terms of legal causation. It is in accord with the juristic assump-tion underlying liability for negligent conduct: just as the creation of undue risk to others is the basis for li-ability, so liability for harm does not, in general, extend beyond the risks created by the conduct.

A person whose conduct is a violation of a duty of care to another is not necessarily liable for a harmwhich factually results from the conduct to the other or to the other's things. Thus if A negligently drives soclose to B that he is deterred from crossing the street, A will not be liable if B is struck by a falling cornicewhile he is awaiting an opportunity to cross, since antecedently there has been no increase in risk of harm.Where an act is negligent only because it creates a risk of a certain type, liability does not follow if harm oc-curs as the result of any event which had no relation to the risk. For example, a person who leaves a box ofexplosives where a child might find it and be hurt by an explosion would not be liable if the child in playingwith it were to drop it and bruise his foot. This limitation of liability does not apply to a person who has tor-tiously entered upon or meddled with the land or tangible things of another; the fact that such a person hadno reason to believe that the harm which ensued — or any harm — would result from his conduct does notrelieve him from liability for harm caused by his trespass. Thus one who, in the belief that he is on his ownland, carefully builds a fire, would be liable to the owner of the land for unexpectable damage done by thefire. On the *91 other hand, while in almost every case liability extends to the full extent of the risk created,public policy may limit it. So a minority of courts deny recovery to one who suffers physical harm fromfright caused by a negligent act which does not result in physical contact.

The theory of risk is only partially invoked in determining the extent of liability for an admittedly negli-gent completed tort. There may be liability for consequences which were not within the risks as they existedimmediately before the impact. In particular, an actor is responsible to an injured person for a harm immedi-ately resulting upon the completion of the tortious impact without the intervention of external forces,however unexpected such harm might be. Thus one who negligently imposes a slight wound upon another isliable for seriously harmful consequences induced by the unexpectedly low vitality of the wounded person.However, the actor's liability for harms which accrue subsequently from external sources depends uponwhether the risk of such harms has been increased substantially by the tortious impact. In determining theexistence of such risk, the situation immediately after the impact has produced its first effects is considered.Thus one whose negligent blow has broken another's leg would be liable for its subsequent infection or harmdone by a surgeon's negligence, since these are normal risks from broken bones; he would not, however, beliable for the other's death caused by the burning of the “fire proof” hospital to which the victim was takenafter the initial accident. The fact that the particular channel by which the harm was produced was unexpect-able is unimportant if the tortious conduct appreciably increased the risk of harm by any one of the means bywhich it is in fact produced. Thus if a person negligently permits the escape of domestic animals, and they



are thereby exposed to a great variety of individually small risks, he may be found liable if they are de-voured by an escaped menagerie tiger. The actor is likewise responsible for harm resulting from interveningexternal forces not set in motion by his conduct, if the tortious impact for which he is responsible creates anappreciable risk of such intervening events. Thus one who negligently shoves a pedestrian from the safety ofthe sidewalk into the road is liable for harm to the other resulting from a road risk — that is, from either acarefully or a carelessly driven automobile. The fact that there is a long space of time or *92 series of eventsintervening between the negligent act and the harm does not prevent liability. Thus one who negligentlyleaves an explosive where it is likely to harm third persons may be liable for an explosion occurring severalyears later. So one who has been guilty of negligence in manufacturing or putting upon the market an auto-mobile with a hidden and dangerous defect may be liable for harm caused to a person injured because of thedefect after the car has passed through the hands of a series of purchasers. It is likewise immaterial thatbetween the negligent act and the harm there intervenes the consciously wrongful act of a third person if —but only if — the intervening act was within the risk. Thus if a person were to open a locked door in anoth-er's house, he would ordinarily be liable for a subsequent theft from the premises facilitated by the unlockeddoor, but not for the murder of the occupant.

Persons and Things within the Risk. — A person whose conduct is negligent because he endangers onlya particular thing or group of things is not liable for harm caused to other things not endangered by the con-duct. Thus a person who negligently drops another's baggage while he assists in unloading it from the other'scar is not liable for the car's destruction by an explosion caused when the baggage falls upon an explosiveleft by a third person, the presence of which could not reasonably be anticipated.

A duty to use care extends only to those who may be harmed; a breach of duty to one person is not of it-self the basis for liability to another person. There is liability only to those within the circle of risk. Thus onewho harms an empty barge would not ordinarily be liable to a person who later ships goods on the barge ifthese are lost in a sinking caused by the prior harm plus the subsequent negligent failure of the barge ownerto discover the extent of the harm. However, in determining whether antecedently there was sufficient risk tothe person harmed so that the actor's conduct constituted a violation of duty to such person, the risk to othersresulting from the conduct is considered. Thus where conduct is negligent because it creates an undue risk ofharm to a particular person, it may also create a sufficient degree of risk to a possible — even though un-likely — rescuer, so that the actor would be liable to one hurt in the act of rescue. So, too, where one shootsa gun in a crowded thoroughfare, it is not merely the risk to the person struck by the bullet which is con-sidered; the risk to the entire *93 group of persons endangered is considered in determining whether the actis negligent.

Termination of Risk. — Although the defendant has been negligent by creating an undue risk of harm, heis not subject to liability if, before a tortious impact, the risk ceases. Thus where a person negligently per-mits a house to become dilapidated and endanger his neighbors, if thereafter he exercises reasonable care ininspection and repair so that it appears safe to building experts, he would not be liable for its subsequent falldue to a defect not discovered in the inspection. On the other hand, if a tortious impact has occurred, the factthat the tortfeasor uses care to prevent harmful consequences and that there appears to be no further riskdoes not prevent liability for harm from the impact, if no outside forces intervene. Thus one who negligentlycauses another to take poison would be liable for the ensuing death of the other although every means tosave the other's life were taken and these seemed to be successful. This is to be distinguished from the situ-ation where, after impact, there appears to be no danger from an external cause. In such a case there wouldbe no liability if harm in fact resulted from such cause. Thus one who knocks another down and therebycauses him to take a taxicab would not be liable for further distinct harm caused in a wreck of the cab.

4. PURPOSE



Liability for harm resulting from an act may depend upon the actor's purpose in doing the act.

Purpose is that which motivates conduct. It is to be distinguished from intent, which is that state of mindin which an act is done either for the purpose of causing an event or with the belief that the event will neces-sarily result from the conduct. In many fields of the law the purpose with which an act is done has no effectexcept upon the existence or extent of damages, as in the case of an unprivileged entry upon land. In somesituations, however, purpose is of determinative importance.

Purpose may be of importance in determining the existence of negligence and of contributory fault. Anact done for the purpose of protecting the actor or another may not be negligent although it creates a seriousrisk of harm to third persons. In the same way, *94 one who does an act dangerous to himself may not bebarred by contributory negligence if his purpose is to avoid more serious harm to himself or to protect oth-ers. Likewise the liability of one who acts for an improper purpose may extend to those not intended to beharmed and as to whom there was antecedently comparatively small risk of harm. Thus where a personshoots for the purpose of killing another and by accident hits a third, he is liable therefor irrespective ofantecedent risk. On the other hand, the fact that the harm results from an unlawful act does not of itself cre-ate liability if the doing of the act involves no undue risk to others. Thus one who, while driving for the pur-pose of committing murder, observes all the rules of the road is not liable to a pedestrian with whom his carcollides.

One who is privileged intentionally to harm another by tortious means — that is, by force or untruth —ordinarily avoids liability therefor only if he acts for the purpose of protecting the interest for whose protec-tion the privilege exists. Interference with a protected interest of another is permissible only because of aconflict of interests and in recognition of the desirability of permitting a person to act in his own protection,that of third persons, or that of the public. The reason for the creation of the privilege defines the conditionsunder which it is to be exercised. Thus one who imprisons another cannot justify his act on the ground thatthe other was an escaped felon if the imprisonment was not for the purpose of arresting a felon. However,for reasons of public policy, a person is not liable for initiating a criminal prosecution although he had animproper motive if he also had reason to believe that the other party had been guilty of the crime charged; inthis case no tortious means are used.

One who, acting without a privilege, employs tortious means for the purpose of causing harm to a legallyprotected interest of another is liable to the other if such harm results. This is true although the tortiousmeans may have been directed towards a third person and although the conduct created no substantial riskthat harm would eventuate. There may be liability although the interest harmed would not have been protec-ted against such conduct in the absence of a purpose to cause the harm. Thus where A intentionally strikes ordeceives B for the purpose of interfering with the economic interests of C, A will be liable to C.

*95 Conduct not involving tortious means may be tortious if accompanied by an improper motive. Thereis a growing tendency in the law, not yet ripened into a principle, to increase the area of liability for actsdone with the sole purpose of causing harm to others. This is rationalized by the theory that the use of allpersonal capacities or economic power is privileged only when utilized for a nonharmful purpose. The tend-ency has been seen chiefly in limiting the previously untrammeled rights of landowners in the use of naturalresources such as percolating water and air space, and in limiting the use of economic resources to oppressothers. The tendency has not as yet, however, seriously impaired the rights of an owner in the defense of hispossession or in dealing with his things, nor has it affected the right of a person to maintain an action uponor to transfer valid claims. It may be assumed that most courts would not hold a landlord guilty of a tort inexcluding from his land a certain person whom he did not like while admitting all others, nor would they im-pose liability on one who brings an action upon a valid claim merely for the purpose of embarrassing hisdebtor. Likewise, except under modern labor legislation, it would not be tortious for a person to refuse to



employ or to discharge a person because of personal ill will, or suddenly to withdraw his patronage from aperson whom he disliked, for the sole purpose of causing economic loss to such person.

II. DEFENSES

A person whose conduct would otherwise be tortious with respect to another may not be liable to theother for the harm caused by his conduct because of a privilege, or because of the consent or fault of theother.

There is no rule by which any person other than the state is wholly relieved from liability for tort. Onlyto the extent that a particular state of mind is required for a particular tort liability is there immunity from li-ability because of mental incapacity. Likewise a person whose conduct is otherwise tortious is not relievedfrom liability therefor merely by the fact that his conduct is pursuant to the command of or an act of another.

The grouping of privileges, consent, and contributory fault as defenses can be justified only by conveni-ence in assembling *96 matters which are relevant in any form of tort action and are customarily consideredas defenses. It has no basis in procedural rules, since in some cases the plaintiff has the burden of allegingand proving the nonexistence of these so-called defenses. Likewise the distinction does not rest upon the ex-istence of a breach of duty by the defendant to the plaintiff, and its neutralization by the plaintiff's conduct,since there is no breach of duty in conduct which is privileged or to which the plaintiff consents.

There are a few other so-called defenses, but these have a limited application. Thus truth is dealt with asa defense in actions for defamation; but in actions for deceit, the lack of truth is considered as the basis ofthe plaintiff's case.

A. Privileges. — Although a person would otherwise be liable for causing harm to another by an inten-tional invasion of the other's interests, he is relieved from liability if he acts in the reasonable protection ofhis own interests, those of others, or those of the state. The privilege intentionally to harm another, as byforce or untruthful statements, exists in a limited number of situations. Where such a privilege exists, theactor has a defense only if he acts reasonably, viewing the situation as it would appear to a reasonable per-son in his position, and if he acts for the purpose of protecting the interest for whose protection the privilegeexists. The actor is not protected merely because he reasonably believes he is privileged so to act, but inmany situations he is privileged if he acts in the reasonable belief that facts exist which would be the basisfor the privilege. Thus where one has a noncontractual duty to act if certain circumstances have occurred, heis privileged to act if he reasonably but erroneously believes the circumstances to exist. So a policeman isprivileged to arrest one whom he reasonably believes to have committed a felony. Where a person wouldhave a privilege but not a duty to act if his belief were correct, no generalization can be made as to his liabil-ity where his belief is incorrect.

A person is not fully privileged intentionally to use tortious means to harm the protected interest of an-other in order to protect the interests of himself or of a third person, except where his interests or those of athird person are threatened by the conduct or things of the other. There is, however, a privilege to use or todestroy things of another which are not in themselves dangerous, *97 in order to prevent serious and dispro-portionate harm to one's own interests or the interests of others — subject to a liability to pay for the use orvalue of the thing destroyed. So one is not liable for a nonharmful but unpermitted entry upon the land of an-other when this is necessary to save life; he would be liable for harm done during the course of an entry forsuch a purpose.

In the protection of his own interests, a person may be, and usually is, privileged to harm another bymeans not involving force or deceit except where the intent is to cause a tort or breach of contract. Thus one



is privileged to destroy another's business by competing for customers. In accordance with the general prin-ciple, the exercise of the privilege must be for a proper purpose and not merely from motives of revenge orspite. This privilege is also limited to cases not involving action leading to a breach of contract with another,or to a tort upon another. Thus competition does not give a privilege to A intentionally to induce B either tobreak a contract with C or to commit a tort upon him.

A privilege, which connotes rightful conduct, is to be distinguished from an immunity from civil action.Legislators, judges, and governmental administrators are not subject to civil liability for harm resulting fromwords or acts done in their official capacity, irrespective of motive or knowledge of wrongfulness. They are,however, subject to criminal or administrative penalties for abuses.

B. Consent and Estoppel.—A person of full capacity who, with full knowledge of the facts, freely con-sents or manifests consent or, under some circumstances, fails to manifest dissent to the conduct of anotheris not entitled to recover for harm caused to his interests by such conduct. A person not an infant or insanewho manifests to another that he is willing that the other should act is not entitled to receive compensationfor harm resulting from such action; nor is such a person entitled to compensation for harm resulting fromconduct to which, with full information, he freely assents, although without manifestation. As yet, judicialapproval of this principle is not universal when the consent is to an illegal act.

Within this principle, one is denied recovery for the consequences of another's act where he has made amisrepresentation upon which he should know the other will act, and where the other does act, believing onthe strength of the representation that the act is not tortious. Further, if a person, with knowledge that *98another is doing an act in the belief that it is not tortious, could easily inform the other of the facts and failsto do so, he has no cause of action. Thus where the owner of a chattel sees a thief about to sell it to a bonafide purchaser and could easily prevent the sale, but makes no effort to do so, the purchaser is not guilty ofconversion and is entitled to the chattel. In such cases there may be neither a manifestation of consent nor awillingness that the other should act. Rather the plaintiff is said to be estopped. The defense is not identicalwith that of consent but the underlying considerations of policy are the same for both.

C. Contributory Fault. — One of two persons who has been harmed as the result of the faulty conduct ofboth, but without the intent of either to cause harm, is not entitled to recover full damages from the other un-less the other's conduct was more blameworthy. Where a person has been guilty of negligence contributingto a result, this principle may be applied to bar his recovery altogether, or to diminish the amount of his re-covery from another whose negligence also contributed to the result. It does not bar a person guilty of con-tributory negligence from recovery either for intentional or reckless wrongdoing. An anomalous limitationupon the principle exists where a person negligently fails to avoid harming another after the other has negli-gently placed himself in a dangerous position from which he cannot escape — in which case courts have atendency to regard time rather than culpability as the determining factor, so that contributory negligencemay not be a defense. There is a modern tendency to divide losses between persons whose negligence con-tributes to a harm.

The principle also applies to bar one whose illegal act contributes to the result, provided his act is illegal,in part at least, because of the risk of such a result to himself or a third person. The fact that one is in thecommission of a crime when harmed does not of itself constitute a defense. The nonliability of a possessorto a trespasser for the dangerous condition of land or chattels is based, not upon contributory fault, but uponthe absence of a duty of care.

56 Harv. L. Rev. 72

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56 hvlr 72 seavey principles of torts

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