All the rules that
the law can lay down beforehand are rules for determining the
conduct which will be followed by liability if it is followed by
harm--that is, the conduct which a man pursues at his peril. The
only guide for the future to be drawn from a decision against a
defendant in an action of tort is that similar acts, under
circumstances which cannot be distinguished except by the result
from those of the defendant, are done at the peril of the actor;
that if he escapes liability, it is simply because by good
fortune no harm comes of his conduct in the particular event.
If, therefore, there is any common ground for all liability in
tort, we shall best find it by eliminating the event as it
actually turns out, and by considering only the principles on
which the peril of his conduct is thrown upon the actor. We are
to ask what are the elements, on the defendant's side, which must
all be present before liability is possible, and the presence of
which will commonly make him liable if damage follows.
The law of torts abounds in moral phraseology. It has much to say
of wrongs, of malice, fraud, intent, and negligence. Hence it may
naturally be supposed that the risk of a man's conduct is thrown
upon him as the result of some moral short-coming.
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