Page:Harvard Law Review Volume 8.djvu/221

205 TRIPARTITE DIVISION OF TORTS. 205 defendant. We sometimes find cases indiscriminately marshalled by a writer as " for recovery" or '* against recovery " in such cases, as if but a single question were involved. Yet the courts con- stantly do consider these different points of view. In Victorian R. Covi'rs v. Coultas (13 App. Cas. 222), for instance, the court said : — (i) " Damages [«V? damage] arising from mere sudden terror. . . oc- casioning a nervous or mental shock, cannot under such circumstances, their Lordships think, be considered a consequence which in the ordinary course of things would flow from the negligence of the gatekeeper." (2) " If it were held that they can,. . . the difficulty ... of determin- ing whether they [the injuries] were caused by the negligent act would be greatly increased, and a wide field opened for imaginary claims." Here are both points of view; and on both the plaintiff loses. Again, in Phillips v. Dickerson (85 111. 11), the court assumes with- out question that the sort of injury is a proper subject for recovery, and confines itself to the question of the Secondary limitations, "Whether such a result was such a natural and proximate conse- quence of defendant's conduct as to make him liable therefor," and here also finds for the defendant. No discussion of the sub- ject can be of value unless the two elements involved in the cases are carefully distinguished. II. The Responsibility Element. — Assuming that the kinds of harm to be avoided or to be protected against have been deter- mined, we have next to consider those limitations of the nexus which determine the nature of the Responsibility element, by defin- ing what connection must exist between the obligor and the harm done, in order to bring him within the scope of the nexus. The question is, in a concrete case of the specified harm, what person, if any, shall be looked to as bound to bear legal responsibility for it. This is not the place to attempt to define the order and nature of the topics that belong under his head. The doctrine of "act- ing at peril," the phrasing and application of the tests of " proxi- mate cause," "reasonable and probable consequences," — these, with their attendant refinements and exceptions, form the sub- stance of the general topic. But the important circumstance to call attention to is that this topic has an application in the domain