Page:Harvard Law Review Volume 8.djvu/17



. VIII.

PRIVILEGE, MALICE, AND INTENT.

HE law of torts as now administered has worked itself into substantial agreement with a general theory. I should sum up the first part of the theory in a few words, as follows. Actions of tort are brought for temporal damage. The law recognizes temporal damage as an evil which its object is to prevent or to redress, so far as is consistent with paramount considerations to be mentioned. When it is shown that the defendant's act has had temporal damage to the plaintiff for its consequence, the next question is whether that consequence was one which the defendant might have foreseen. If common experience has shown that some such consequence was likely to follow the act under the circumstances known to the actor, he is taken to have acted with notice, and is held liable, unless he escapes upon the special grounds to which I have referred, and which I shall mention in a moment. The standard applied is external, and the words malice, intent and negligence, as used in this connection, refer to an external standard. If the manifest probability of harm is very great, and the harm follows, we say that it is done maliciously or intentionally; if not so great, but still considerable, we say that the harm is done negligently; if there is no apparent danger, we call it mischance.

Furthermore, so far as liability for an act depends upon its probable consequences without more, the liability usually is not affected by the degree of the probability if it is sufficient to give the defendant reasonable warning. In other words, for this