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Harvard Law Review September, 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 was not dealt with as a unit by law writers, but was considered piecemeal under such titles as assault, defamation, 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 edition of Addison's work abridged for the use of students of the Harvard Law School, said: We are inclined to think 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 scholarly treatise which, presumedly not ironically, he dedicated to his friend, Mr. Holmes. It is now generally recognized that, however diverse may be the situations included within the field, there is a predominant purpose which the law serves in actions of tort and that there are principles which run through the entire subject, 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 five distinct purposes: (1) to give to a person what another has promised him (usually vindicated in an action upon a contract); (2) to restore to a person what another has unjustly obtained at his expense (usually the basis of a quasi-contractual action); (3) to punish for wrongs (the historical function of the criminal law) and to 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 in substance quasi-contractual. An action for deceit may give to the plaintiff what was promised in states in which the contract measure of damages is given; in other states it may restore to the plaintiff the value of that of which he was improperly deprived. An action of tort may serve to punish or deter, as where recovery is allowed although *73 there has been no harm or where, implicitly or expressly, punitive damages are awarded. An action of tort is also frequently brought to determine rights in property, as in the action known as trespass to try title, or in an action for infringement of a copyright where no substantial damages are claimed. In spite of these varied purposes served in actions of tort, harm is the tort signature. In general, the action is based upon the theory that one person has caused harm to another. Thus it is distinguished from criminal law, which directly vindicates the interests of the state; from the law of contracts, which gives sanction to promises; and from the law of restitution, which seeks primarily to prevent unjust enrichment. It is true that 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 his exercise of control has in fact caused no harm. Nevertheless the causing of harm is predominantly the basis of tort actions.

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In determining whether there is tort liability when harm has been caused, the focal point of conflict has been whether one should be liable for harm irrespective of fault. The law has been in a state of flux in its desire to protect the two basic interests of individuals the interest in security and the interest in freedom of action. The protection of the first requires that a person who has been harmed as a result of the activity of another should be compensated by the other irrespective of his fault; the protection of the second requires that a person who harms another should be required to compensate the other only when his activity was intentionally wrongful or indicated an undue lack of consideration for the interests of others. At any given time 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 law and of laissez faire, emphasis was placed upon freedom of action, and culpability tended to be the basis for tort liability. Nineteenth-century jurisprudence referred all legal problems to the idea of free will. The Napoleonic Civil Code of 1804 adopted the Roman Law principle of Aquilian culpa as a general basis of tort liability, and in common-law countries an attempt was made to state the entire law of *74 torts in terms of culpability. Towards the end of the century, however, juristic thinking recognized that there should be a twofold basis for the law of torts and that, in striking a balance to determine what most nearly satisfies the needs of all, both the concept of security and that of culpability must be used in varying degrees. The first concept requires that one who engages in activity, employs others, or controls things should be liable for harm caused by his activities, agencies, or things, even though he is without fault. The second concept requires that a person whose conduct is not wrongful should not be required to pay for the harm it causes. In the adjustment between them, as much effect is given to each as can be granted with the least infringement of the other. As a rough generalization, it may be said that one who intentionally meddles with another, his things, or his reputation is liable in accordance with the first idea, while the conduct of one having no such intention comes within the second. From the struggle for supremacy between basic ideas, principles governing decisions in specific cases have emerged. These principles differ from the rules announced in court decisions in that they may not have a universality of application to specific situations. Derived inductively from a consideration of the entire mass of rules, they indicate general tendencies in the law and disclose fundamental ideas from which specific 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 economic or social viewpoint or condition. A decision can properly be sustained although it runs counter to a prior decision if it accords with principle. A decision which violates a principle can be sustained only if the principle is 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 subject matter or of the form of action. In actions for harm to the person the same principles apply as in actions for harm to tangible things, reputation, or profitable relations. The differences are largely in the degree of protection afforded to a particular interest differences due to accidental retention of older ideas, to the fact that some interests have been protected only recently, or to the relative administrative ease or difficulty in protecting 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

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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 duty to benefit another. Thus a person has no duty to support strangers or to protect them from harm, even though little effort would be required to avert disaster. Aside from the individualistic basis of common-law conceptions, the result can be justified, in most cases at least, on the ground that it is difficult to lay down a standard of conduct which could be well administered. Two important limitations on this generality are stated in the principle above. Situations in which liability is based purely upon a relation, or upon possession or control, are frequently difficult to distinguish from those 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 in a very real sense causes the harm which results to others from his subsequent failure to make repairs resulting in the dilapidation of the premises. A person who employs a servant and thus obtains that sophisticated form of control over physical acts which is sufficient to create responsibility for the acts of the servant in 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 of things or control of a situation. These situations will be examined before the general principle of liability for causing 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 into 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 is enforced by the criminal law, by quasi-criminal proceedings, by restitutionary action, or by divorce proceedings; aside from statute, a husband or parent has an immunity from an action of tort by a wife or child. A ship owner has a duty to protect the seamen; a master a duty of protecting apprentices; a guardian a duty to protect 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 during the life of the relation by those subject to them. Statutes may extend liability to persons who have not consented to enter into a relation, as where a statute requires a child to provide for an indigent parent. Where a duty exists and failure to perform it results in harm, the legal liabilities are the same as those which exist where a person has caused harm. Similar duties may be created by agreement, as where one person has contracted to protect another. But in such cases, however, liability exists only if the assumption of the duty has resulted in reliance, and if harm has resulted from the combination of promise, reliance, and failure to perform. Because of this a gratuitous promise, if reasonably relied upon, would be as effective a basis for tort liability as would a contractual obligation. Whether or not the promise results in a contract, the promisor may relieve himself from tort liability by such notice as will prevent the continuance of reliance. It should be noted also that, on the same theory, where one promises another to protect a third person, the third person may have a tort claim against the promisor if the failure to perform results in harm. Thus the gateman at a railway crossing who, in neglect of his duty to his employer, fails to warn an approaching traveler may be liable to the traveler for harm suffered in a collision. This may be true whether or not the railroad had a duty to have a gateman if it has been customary to have one. For *77 if the traveler had been led to rely upon receiving the warning and the railroad relied upon the performance of the duty, the gateman's assumption of duty plus his failure is a cause of the

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harm. Where liability is based upon a relation in which the duties are fixed by law, there may also be liability upon the ground that the failure to perform is a cause of the harm. Thus a father who deserts an infant of which he has charge may be liable both by virtue of his parental relation and on the ground that by taking control 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 another, 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 the power is not thereby liable for the resulting harm. A person who could easily prevent another from drowning and 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 excludes others, a normal basis for tort liability exists if he fails to care for the property and someone is thereby hurt. In most cases it would not be too violent to assume that, had he not taken control, the one from whom he took control could have prevented the harm. In other cases, the assumption of control will lead to reliance by others upon its proper exercise. But it would seem proper to consider the possession of things or the 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 distinct category, but also from the fact that in a few situations liability may exist although there was no voluntary assumption of control, or no failure to exercise control properly, or although the existence of control in the defendant was not a cause of the harm. As illustrations of situations where there is no voluntary *78 assumption of control, these cases may be suggested: One may become the owner of land without volition and yet have imposed upon him the obligations of a possessor. Thus a young child may receive land as an heir and apparently become subject to the same liability as any other possessor at least to the extent of the value of the premises. Likewise a person is made responsible for the control of his physical being. Thus one who, knowingly, has become infected with 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 relation in 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 cynicism, or on the idea that the loss from accidents should be spread, it is ordinarily the power of control which is stressed in the opinions. It may perhaps be significant also that the two other situations in which English courts have retained absolute liability are those involving possession of animals or of land, although here it may properly be said that liability is based upon the necessary precedent activity in acquiring and bringing upon 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 a going business is purchased and one of the servants causes harm before the new owner has had an opportunity to give directions, or where a dilapidated building falls into a highway a few minutes after title and possession have passed, any liability of the new master or owner cannot be based on a theory that he has harmed the injured person, but must be founded on a conception that the one in possession or control is

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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 as master and servant, no basis for legal liability exists merely from a manifestation that one is in control or intends or promises to control. Thus one who takes charge of a rescue can stop at any moment without liability unless 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 failure to act are the same as where there has been intentionally wrongful or negligent activity. One who intentionally fails to restrain a dog under his control from harming a third person is subject to the same liability as if he had incited the dog. So one who permits children to play ball upon his land near a neighbor's glass house 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 out in connection with possession. By and large, a possessor of land is subject to no liability for harm caused by it to persons outside of it if the land is in its primeval condition or has been changed only by normal cultivation. Aside from statute, this is true although the possessor realizes that the land will cause harm: as where the owner of a hillside sees that large boulders from it are being moved by the frost and will slide upon his neighbor's land lower down, or where the owner of a natural swamp knows that his neighbors are being harmed by mosquitoes which emanate from it. In these instances, the result can be supported on the ground that people who buy or live upon land have not paid for and should not expect improvements of neighboring lands, since these would be in the nature of benefits conferred upon them. There is, however, a tendency to impose liability in a limited number of situations particularly those involving border trees in towns and suburban districts. There would also seem to be a duty to use care to extinguish a fire started in a natural wood or prairie either by the act of man or by a natural force; and if such a duty exists, there should be a duty to prevent harm from the toppling of a forest tree weakened by lightning. Such a result is in line with the tendency to impose a duty upon possessors to prevent third persons from using the land to the detriment of the neighbors. For artificially created conditions upon the land, the possessor becomes responsible to persons outside of it, whether these have been created by a predecessor, by himself, or by others. For anything done upon the land with his consent, his liability may be referred to his consent. There is, however, a pronounced tendency today to make him responsible for unpermitted acts of third persons where, for example, they create a nuisance 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 undertaken a public calling, he has no duty to them if he is guilty of no deception. To an adult who enters without consent that is, to a trespasser he has no duty except that he must not set a trap for the purpose of harming him. This immunity from liability does not exist because the trespasser has been guilty of wrongful conduct or contributory negligence, or has assumed the risk, but because the possessor has no duty to maintain his premises in safe condition for trespassers or to warn them of hidden dangers. In fact, his immunity extends to persons who are not trespassers but who enter his land without consent. Thus one who takes refuge from a storm in an apparently safe but in fact dangerous shed, which because of the exigency he would be privileged to enter, has no action against its owner if the shed collapses upon him. If, however, a possessor permits or invites persons upon his premises, reasonable inferences of fact may be drawn from the permission or invitation in accordance with common understanding. Persons permitted to enter primarily for their own benefit or for a nonbusiness purpose may assume at least that there are no hidden dangers of which the possessor is aware. Persons entering for a business purpose or in a belief induced by the possessor that the place is open to the public have a right to assume that the possessor has used care to discover hidden dangers, and either that no danger exists or that warning will be given of it. The resulting duty is not to maintain the land in safe condition, but to give reasonably adequate warning of hidden dangers which due

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care would reveal. If the possessor deceives persons into entering with the belief that his premises are actually public property, he has the further duty of using care to maintain them in safe condition. Thus one who maintains a walk parallel to and apparently part of a public road would be liable to one injured by a hidden defect negligently permitted to remain.I In many states the immunity of landowners from liability to trespassers does not extend to persons unable adequately to protect themselves from dangers on the land. There is now a general tendency to impose liability upon a possessor where his land is in an artificially created condition such that there is a serious risk of *81 children entering and suffering serious harm. This liability is not based upon an implied invitation or even upon enticement, since the latter should not be, and generally is not, essential; the factors considered in determining liability are those which exist in other cases of negligence that is, the extent of the risk to children on the one hand, weighed against the desirability of permitting a landowner to use his land without too expensive protective measures. The duties of the possessor of a chattel are similar to those of the possessor of land and the same principles 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 of the 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 does not protect the factual interest which one may have in doing an act in revenge or hatred or with the desire to harm. Nor does it protect the interest which one may have in achieving an unlawful result or in using unlawful means. The interests recognized by law are protected in varying degrees, those which were first given recognition 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 highly protected. A very slight interference is sufficient for a cause of action. In this field we find that liability may exist without actual harm, as in the case of an assault which may in fact induce no disagreeable emotion, a trespass to land which may be beneficial rather than otherwise, and a defamatory statement which is not believed by anyone. The possession of chattels is protected to a slightly lesser degree, the only difference being that they probably are not protected against nonharmful trespasses not amounting to conversions. All these interests are protected against mistaken and nonfaulty acts, as where a bona fide purchaser acquires a stolen chattel, or where a person without personal fault makes an *82 apparently harmless statement about another which proves to be defamatory. The interest in economic advantage is protected by the law of torts against statements known to be untrue, to an increasing extent against negligent statements, and where the rules with reference to estoppel operate against innocent misstatements. The economic interest resulting from advantageous relations with others is protected only against known interference, as in the case of an interference with contractual or gift relations. In some instances, in fact, such an interest may be protected only against acts done for the purpose of 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 otherwise harming it. The right of privacy, tardily recognized only as privacy was on the point of elimination, is protected only to a very limited extent. There is substantially no protection afforded to the interest in not having disagreeable emotions unaccompanied by physical harm and not the result of a common-law trespass to the person. Thus, except by statute, it is not tortious to insult another or to tell him disagreeable truths

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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 liability in tort depends upon some form of activity. This activity may consist of physical movement or it may be the communication of ideas. It may consist of causing a physical movement, as where one person directs another to act, or of causing a change in pecuniary condition, as where by inducement one causes another to violate a contract with a third person. The activity may consist of selling or permitting another to deal with property; in such a case it is the giving of consent which causes the subsequent using of the property. Thus if a manufacturer sells a defective automobile which, in the hands of the purchaser, causes harm to him or to a third person, the liability of the manufacturer is based upon the fact that he permitted a defective chattel to be 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 liability only if the assumption of control induces reliance by others upon its exercise. *83 Thus if a person were to promise to rescue another from a dangerous situation, his liability for failing subsequently to make the rescue would depend upon whether his promise induced others, including the person to be rescued, not to take whatever effective steps they would otherwise have taken. The assumption of control, as has been stated, 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. Thus misleading 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 physical harm done by their defective products, is ordinarily based on a misrepresentation with reference to the safety of the premises or the chattel. On the other hand, a physical act may lead to an interference with advantageous relations, as where a tradesman shoots at the customer of a competitor, or to defamation, as where one person shadows another. It is not the kind of activity but the state of mind and the result achieved which determine whether the conduct is tortious. State of Mind. For legal liability the state of mind is as important as the physical movement. An act upon 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 another, liability depends upon whether the result was intended, if so whether the act was done for a privileged purpose, or if not whether there was an intent to discharge the gun, whether the victim's presence was known, whether the shooter knew of other facts indicating that persons might be in the vicinity, and other similar matters involving the state of mind of the shooter. So, too, where one makes an untrue statement, his knowledge of facts, his intent or lack of intent to mislead, and his purpose in misleading are ordinarily important in determining liability. Where a duty results from a relation or from possession, or where there is vicarious liability, the state of mind of the person responsible may be unimportant; but where liability is based 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 interests of personality or reputation, or meddles with another's things or, in some situations, with the pecuniary interests of another, irrespective of fault or intent to harm. This principle includes situations in which a person knows that a particular result will happen although he 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

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interference with the interests of others. Thus if one person enters upon another's land or takes possession of another's chattel, his intent to achieve the physical result subjects him to liability in spite of a reasonable belief that the land or chattel is his. This type of situation is to be distinguished from the case where a person does an act, such as driving a car, which he has no reason to believe will result in the invasion of land or harm of any sort, but which does in fact result in an entry upon land or harm to something or someone. On the other hand, in the case of invasion of personality, an intent more than that of accomplishing a physical result may be required. Thus where one shoots at an object which he reasonably believes to be a wild animal but which proves to be a man, he may not be liable, although he intended the contact between the bullet and the 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 physician who operates upon a person in the mistaken belief that consent has been given or manifested. Interference with family relations is sometimes a basis for liability if the physical result is intended although there is no intent to interfere with such relations. Thus one who has sexual relations with a woman whom he believes to be single is liable to the husband. In defamation an intent to make statements about another which, in light of the facts, prove to be defamatory, is a sufficient basis for liability. It would appear that even an innocent intent to speak or write is of itself sufficient, as where the defendant states that A is married to B and this proves to be defamatory of C, the unknown wife of B. In *85 this field, too, we find liability without factual harm. 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 been limited almost exclusively to intended interference. Thus a misstatement made to someone, without intent that he or anyone else should act upon it, has been held an insufficient basis for tort liability, although there is a present tendency to impose liability for negligence in such cases. Likewise an unintended even though negligent interference with another's contractual relations is not tortious. Thus one who should know, but does not know, that goods which he buys from another have been promised to an earlier contractor would not be liable to the disappointed purchaser. Further, where there is no use of tortious means, such as force or deceit, the privileges to act are very extensive. Thus one who organizes a business which if successful will destroy the business of another will not be liable for such destruction unless he acts, not to benefit himself, but to harm the other. Even where tortious means are used with knowledge that another will be harmed as a result, there may be no liability in this field. Thus if A intentionally kills B, who is known to have contracted to perform services for C, A is not liable to C unless the tort was committed for the purpose of harming C's interests. 2. NONNEGLIGENT UNINTENDED HARM With minor exceptions, a person who does not intentionally interfere with the interests of another and who 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 to most human activities except where, as pointed out previously, there is an intention to deal with things or with the interests of others. The liability of a trespasser for an unexpected harm to the land which results from his trespass is based upon the wrongfulness of his entry. The liability of one whose words unexpectedly 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 to those created by the rules of negligence; most of such statutes which impose liability without fault are applicable to some form of contractual relation, and liability can be predicated upon a failure to perform the contractual duty. This would be true, for instance, where a statute imposes liability upon a seller of food which without his fault has become adulterated. Workmen's compensation acts, which impose liability upon

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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 that there is no liability for the unintended consequences of lawful conduct. In many states one who lawfully keeps 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 some states) is responsible for harm resulting from their dangerous proclivities. This exception is an historic survival and shows signs of disappearing. Another exception which exists in the law of the United States, strict liability for ultra-hazardous activity, is modern. The most important situations where such liability exists are those involving blasting, the keeping of explosives, and the operation of airplanes. In such cases, because of its importance to the public the activity is not considered unlawful, but absolute liability is imposed either because the risk of harm is great or because an accident, while it is unlikely to occur, would be catastrophic if it should occur. A few decisions have been based on a theory that for invasions commonly described as nuisances there may be liability without legal fault, but these cases would seem to be out of step with modern reasoning. In fact, most nuisance cases involve a realization by the defendant that he is interfering with the factual interests of others, although he may not have reason to believe that the interference is sufficiently great to be tortious. Aside from these situations, there is no clear indication of the acceptance of the principle of liability without legal fault for unintended physical consequences. Although for harm to pecuniary interests something more than negligence is ordinarily required, yet where the doctrine of estoppel is applied there may be liability even without fault. Thus *87 where a trustee untruthfully but nonnegligently represents to a prospective purchaser of the beneficiary's interest that such interest is unencumbered, the purchaser may be entitled to an action against the trustee for failure to pay the amount which would have been due if the beneficiary's interest had been unencumbered. The results achieved 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 person for the negligence of a contractor whom he has employed rests rather upon a relational than upon a purely 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 persons over 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 threatened harm, and the case where, although he realizes the existence of risk, he neither desires nor believes that harm will 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 in ascending 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 physical harm to persons or tangible things. For harm to reputation, negligence is immaterial, except where a question of publication or conditional privilege is involved. For harm to pecuniary interests there is as yet no general recognition of liability for negligent statements. Except in a few states, there is no liability for negligent misstatements which the speaker should, but does not, realize will be acted upon by others. The liability for negligent, or even nonnegligent, statements made in the course of contractual dealings is in substance a contractual or quasi-contractual liability. The absolute liability which the rules of estoppel may create is out of line with this principle.

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The general rule imposing liability for ordinary negligence *88 may be modified by a relation between the 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 possessor of land is not liable for activity creating risk of harm to an undiscovered trespasser, even though his presence should have been anticipated; in some states he is not liable to a seen trespasser or even to a gratuitous licensee, 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 as would a person having such knowledge, intelligence, and consideration for the interests of others as is possessed by the normal person in the community. The existence and extent of risk are not dependent upon the facts as they exist, but are subjective to a standard person at the time and place. A person who is below the standard of the community in any of these three stated qualities is subjected to liability for harm caused by substandard conduct, although he has not been guilty of personal fault. Thus a person who does not realize the 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 duty to exercise such superiority as he has; if he represents that he has more than the normal knowledge or intelligence and causes others to rely upon his representation, he has a duty to exercise that which he professes to have. Thus one who obtains consent to perform an operation by professing to have the skill of a surgeon is liable for harm resulting from his lack of such skill as is possessed by reputable surgeons in the vicinity. Except by representation or contract, a person is under no duty to exercise more than normal consideration for the interests of others. The fact that one believes himself negligent or that he has departed from a selfimposed standard of conduct is immaterial. The acts required to be done and the precautions required to be taken vary with the physical ability of the actor. Thus on the one hand it would be negligent for a blind man to act as if he could see; on the other hand it would not be negligent for him to cross a street with appropriate precautions, although it would be negligent for a person with normal sight to act similarly with closed eyes. *89 Competing Interests. The factors which determine whether the risk of harm is undue are, on the one hand the extent of the chance that some harm will eventuate and the size of the harm which will result if the risk matures in harm, and on the other hand the utility of the type of conduct. Persons who act necessarily create risks to others, and unless activity is to be entirely at the risk of the actor it is only where the risk becomes excessive that liability is imposed. Since the public is interested in having activities conducted, the law recognizes a privilege for a person who acts in the advancement of his own interests, the interests of a third person, or those of the public, to create risks of harm to third persons which are not disproportionate to the interests sought to be advanced or protected. In determining whether the type of conduct is advantageous to the public, the particular purpose with which an act is done may or may not be considered. Thus one who is driving on the highway is not subjected to an increased standard of care because he is on his way to commit a crime; in such a case it is the general interest in freedom to drive which is considered. On the other hand, a public interest in a particular act may be so great as to excuse what would otherwise be negligent conduct, as in the case where one acts in selfdefense or for the protection of others. Thus under most circumstances it would be negligent to shoot a revolver 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 fully protected interest of another. Negligent contact with the person or things of another results in no liability unless appreciable harm is caused. Nor is negligently induced fear or other disagreeable emotion a basis for liability unless it accompanies or induces harm to the body or to some other fully protected interest as, for example, the interest in reputation. Thus one who by a negligent impact causes the mutilation of a dead body is not thereby liable to the members of the family of the deceased for the mental shock caused, although if

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such mutilation were caused intentionally or recklessly, there would be liability irrespective of resulting physical harm. Factual Cause. A negligent person is not liable to another unless his negligence is, in some degree, a factual cause of harm. *90 Ordinarily he is not liable unless, but for his act, the harm would not have occurred. If, however, he cooperates with or encourages others, or if his act together with another's act leads to a single harm, he may be responsible for the entire harm. Thus where each of several persons successively wound a victim, each may be a responsible cause of death resulting from the loss of blood. But an all contributing only slightly may be disregarded for legal purposes. Where a harm results both from a tortious act and from a natural force 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 principle underlies the rules commonly stated in terms of legal causation. It is in accord with the juristic assumption underlying liability for negligent conduct: just as the creation of undue risk to others is the basis for liability, 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 harm which factually results from the conduct to the other or to the other's things. Thus if A negligently drives so close to B that he is deterred from crossing the street, A will not be liable if B is struck by a falling cornice while 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 occurs as the result of any event which had no relation to the risk. For example, a person who leaves a box of explosives where a child might find it and be hurt by an explosion would not be liable if the child in playing with it were to drop it and bruise his foot. This limitation of liability does not apply to a person who has tortiously entered upon or meddled with the land or tangible things of another; the fact that such a person had no reason to believe that the harm which ensued or any harm would result from his conduct does not relieve him from liability for harm caused by his trespass. Thus one who, in the belief that he is on his own land, carefully builds a fire, would be liable to the owner of the land for unexpectable damage done by the fire. 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 from fright 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 negligent completed tort. There may be liability for consequences which were not within the risks as they existed immediately before the impact. In particular, an actor is responsible to an injured person for a harm immediately 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 is liable 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 upon whether the risk of such harms has been increased substantially by the tortious impact. In determining the existence 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 harm done by a surgeon's negligence, since these are normal risks from broken bones; he would not, however, be liable for the other's death caused by the burning of the fire proof hospital to which the victim was taken after the initial accident. The fact that the particular channel by which the harm was produced was unexpectable is unimportant if the tortious conduct appreciably increased the risk of harm by any one of the means by which it is in fact produced. Thus if a person negligently permits the escape of domestic animals, and they

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are thereby exposed to a great variety of individually small risks, he may be found liable if they are devoured by an escaped menagerie tiger. The actor is likewise responsible for harm resulting from intervening external forces not set in motion by his conduct, if the tortious impact for which he is responsible creates an appreciable risk of such intervening events. Thus one who negligently shoves a pedestrian from the safety of the sidewalk into the road is liable for harm to the other resulting from a road risk that is, from either a carefully or a carelessly driven automobile. The fact that there is a long space of time or *92 series of events intervening between the negligent act and the harm does not prevent liability. Thus one who negligently leaves an explosive where it is likely to harm third persons may be liable for an explosion occurring several years later. So one who has been guilty of negligence in manufacturing or putting upon the market an automobile with a hidden and dangerous defect may be liable for harm caused to a person injured because of the defect after the car has passed through the hands of a series of purchasers. It is likewise immaterial that between 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 another's house, he would ordinarily be liable for a subsequent theft from the premises facilitated by the unlocked door, but not for the murder of the occupant. Persons and Things within the Risk. A person whose conduct is negligent because he endangers only a particular thing or group of things is not liable for harm caused to other things not endangered by the conduct. Thus a person who negligently drops another's baggage while he assists in unloading it from the other's car is not liable for the car's destruction by an explosion caused when the baggage falls upon an explosive left 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 itself the basis for liability to another person. There is liability only to those within the circle of risk. Thus one who harms an empty barge would not ordinarily be liable to a person who later ships goods on the barge if these are lost in a sinking caused by the prior harm plus the subsequent negligent failure of the barge owner to discover the extent of the harm. However, in determining whether antecedently there was sufficient risk to the person harmed so that the actor's conduct constituted a violation of duty to such person, the risk to others resulting from the conduct is considered. Thus where conduct is negligent because it creates an undue risk of harm to a particular person, it may also create a sufficient degree of risk to a possible even though unlikely rescuer, so that the actor would be liable to one hurt in the act of rescue. So, too, where one shoots a gun in a crowded thoroughfare, it is not merely the risk to the person struck by the bullet which is considered; the risk to the entire *93 group of persons endangered is considered in determining whether the act is negligent. Termination of Risk. Although the defendant has been negligent by creating an undue risk of harm, he is not subject to liability if, before a tortious impact, the risk ceases. Thus where a person negligently permits a house to become dilapidated and endanger his neighbors, if thereafter he exercises reasonable care in inspection and repair so that it appears safe to building experts, he would not be liable for its subsequent fall due to a defect not discovered in the inspection. On the other hand, if a tortious impact has occurred, the fact that the tortfeasor uses care to prevent harmful consequences and that there appears to be no further risk does not prevent liability for harm from the impact, if no outside forces intervene. Thus one who negligently causes another to take poison would be liable for the ensuing death of the other although every means to save the other's life were taken and these seemed to be successful. This is to be distinguished from the situation where, after impact, there appears to be no danger from an external cause. In such a case there would be no liability if harm in fact resulted from such cause. Thus one who knocks another down and thereby causes him to take a taxicab would not be liable for further distinct harm caused in a wreck of the cab. 4. PURPOSE

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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 mind in which an act is done either for the purpose of causing an event or with the belief that the event will necessarily result from the conduct. In many fields of the law the purpose with which an act is done has no effect except upon the existence or extent of damages, as in the case of an unprivileged entry upon land. In some situations, however, purpose is of determinative importance. Purpose may be of importance in determining the existence of negligence and of contributory fault. An act done for the purpose of protecting the actor or another may not be negligent although it creates a serious risk of harm to third persons. In the same way, *94 one who does an act dangerous to himself may not be barred by contributory negligence if his purpose is to avoid more serious harm to himself or to protect others. Likewise the liability of one who acts for an improper purpose may extend to those not intended to be harmed and as to whom there was antecedently comparatively small risk of harm. Thus where a person shoots for the purpose of killing another and by accident hits a third, he is liable therefor irrespective of antecedent risk. On the other hand, the fact that the harm results from an unlawful act does not of itself create liability if the doing of the act involves no undue risk to others. Thus one who, while driving for the purpose of committing murder, observes all the rules of the road is not liable to a pedestrian with whom his car collides. 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 protection the privilege exists. Interference with a protected interest of another is permissible only because of a conflict 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 conditions under which it is to be exercised. Thus one who imprisons another cannot justify his act on the ground that the 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 an improper motive if he also had reason to believe that the other party had been guilty of the crime charged; in this case no tortious means are used. One who, acting without a privilege, employs tortious means for the purpose of causing harm to a legally protected interest of another is liable to the other if such harm results. This is true although the tortious means may have been directed towards a third person and although the conduct created no substantial risk that harm would eventuate. There may be liability although the interest harmed would not have been protected against such conduct in the absence of a purpose to cause the harm. Thus where A intentionally strikes or deceives 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. There is a growing tendency in the law, not yet ripened into a principle, to increase the area of liability for acts done with the sole purpose of causing harm to others. This is rationalized by the theory that the use of all personal capacities or economic power is privileged only when utilized for a nonharmful purpose. The tendency has been seen chiefly in limiting the previously untrammeled rights of landowners in the use of natural resources such as percolating water and air space, and in limiting the use of economic resources to oppress others. The tendency has not as yet, however, seriously impaired the rights of an owner in the defense of his possession or in dealing with his things, nor has it affected the right of a person to maintain an action upon or to transfer valid claims. It may be assumed that most courts would not hold a landlord guilty of a tort in excluding from his land a certain person whom he did not like while admitting all others, nor would they impose liability on one who brings an action upon a valid claim merely for the purpose of embarrassing his debtor. Likewise, except under modern labor legislation, it would not be tortious for a person to refuse to

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employ or to discharge a person because of personal ill will, or suddenly to withdraw his patronage from a person 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 the other for the harm caused by his conduct because of a privilege, or because of the consent or fault of the other. There is no rule by which any person other than the state is wholly relieved from liability for tort. Only to the extent that a particular state of mind is required for a particular tort liability is there immunity from liability because of mental incapacity. Likewise a person whose conduct is otherwise tortious is not relieved from 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 convenience in assembling *96 matters which are relevant in any form of tort action and are customarily considered as defenses. It has no basis in procedural rules, since in some cases the plaintiff has the burden of alleging and proving the nonexistence of these so-called defenses. Likewise the distinction does not rest upon the existence 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 as a defense in actions for defamation; but in actions for deceit, the lack of truth is considered as the basis of the plaintiff's case. A. Privileges. Although a person would otherwise be liable for causing harm to another by an intentional invasion of the other's interests, he is relieved from liability if he acts in the reasonable protection of his own interests, those of others, or those of the state. The privilege intentionally to harm another, as by force or untruthful statements, exists in a limited number of situations. Where such a privilege exists, the actor has a defense only if he acts reasonably, viewing the situation as it would appear to a reasonable person in his position, and if he acts for the purpose of protecting the interest for whose protection the privilege exists. The actor is not protected merely because he reasonably believes he is privileged so to act, but in many situations he is privileged if he acts in the reasonable belief that facts exist which would be the basis for the privilege. Thus where one has a noncontractual duty to act if certain circumstances have occurred, he is privileged to act if he reasonably but erroneously believes the circumstances to exist. So a policeman is privileged to arrest one whom he reasonably believes to have committed a felony. Where a person would have a privilege but not a duty to act if his belief were correct, no generalization can be made as to his liability where his belief is incorrect. A person is not fully privileged intentionally to use tortious means to harm the protected interest of another in order to protect the interests of himself or of a third person, except where his interests or those of a third person are threatened by the conduct or things of the other. There is, however, a privilege to use or to destroy things of another which are not in themselves dangerous, *97 in order to prevent serious and disproportionate harm to one's own interests or the interests of others subject to a liability to pay for the use or value of the thing destroyed. So one is not liable for a nonharmful but unpermitted entry upon the land of another when this is necessary to save life; he would be liable for harm done during the course of an entry for such a purpose. In the protection of his own interests, a person may be, and usually is, privileged to harm another by means not involving force or deceit except where the intent is to cause a tort or breach of contract. Thus one

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is privileged to destroy another's business by competing for customers. In accordance with the general principle, the exercise of the privilege must be for a proper purpose and not merely from motives of revenge or spite. 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 to break 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 from words 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 consents or manifests consent or, under some circumstances, fails to manifest dissent to the conduct of another is not entitled to recover for harm caused to his interests by such conduct. A person not an infant or insane who manifests to another that he is willing that the other should act is not entitled to receive compensation for harm resulting from such action; nor is such a person entitled to compensation for harm resulting from conduct to which, with full information, he freely assents, although without manifestation. As yet, judicial approval 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 a misrepresentation upon which he should know the other will act, and where the other does act, believing on the strength of the representation that the act is not tortious. Further, if a person, with knowledge that *98 another is doing an act in the belief that it is not tortious, could easily inform the other of the facts and fails to do so, he has no cause of action. Thus where the owner of a chattel sees a thief about to sell it to a bona fide purchaser and could easily prevent the sale, but makes no effort to do so, the purchaser is not guilty of conversion and is entitled to the chattel. In such cases there may be neither a manifestation of consent nor a willingness that the other should act. Rather the plaintiff is said to be estopped. The defense is not identical with 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 of both, but without the intent of either to cause harm, is not entitled to recover full damages from the other unless the other's conduct was more blameworthy. Where a person has been guilty of negligence contributing to a result, this principle may be applied to bar his recovery altogether, or to diminish the amount of his recovery from another whose negligence also contributed to the result. It does not bar a person guilty of contributory negligence from recovery either for intentional or reckless wrongdoing. An anomalous limitation upon the principle exists where a person negligently fails to avoid harming another after the other has negligently placed himself in a dangerous position from which he cannot escape in which case courts have a tendency to regard time rather than culpability as the determining factor, so that contributory negligence may not be a defense. There is a modern tendency to divide losses between persons whose negligence contributes 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 the commission of a crime when harmed does not of itself constitute a defense. The nonliability of a possessor to a trespasser for the dangerous condition of land or chattels is based, not upon contributory fault, but upon the absence of a duty of care. 56 Harv. L. Rev. 72 END OF DOCUMENT

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