Imagine, for example, a variation of Prosser’s case in which the defendant is grossly reckless with respect to his possible commission of some deadly bodily intrusion against A: Without any good reason, the defendant releases a cat in A’s direction, knowing that there is a one-in-two chance that the cat will come into contact with A and kill her, since A is deathly allergic to cats. As it happens, the cat does not come into contact with A but does come into contact with B, a different person who is unforeseeably on the scene and who is also deathly allergic to cats. Since the defendant did not possess any “substantial certainty” as to the harm he might cause A, he cannot be deemed even constructively to have intended harm to B.161 Thus, the doctrine of transferred intent will be unable to secure any recovery to B. And since, as Palsgraf lays down, there is no doctrine of transferred negligence — not even in the case of gross negligence or gross recklessness162 — B will be left without any doctrinal peg on which to hang a claim for recovery. Yet the same common moral instincts that counsel in favor of permitting B recovery in Prosser’s original case seem to speak powerfully in favor of affording B recovery here. If such a case should actually arise, it would not be at all surprising to see the court defy the formal strictures of doctrine in order to send it to the jury, or to see the jury grant the plaintiff recovery.
This Article’s claim is that the common law’s formal veneer — its surface language of relational duties and wrongs — obscures its substantive moral commitments. In both common law and civil law, the core of tort liability is about tracking remedial moral liability — and remedial moral liability for inflicting injury does not ultimately rest on relational wrongdoing or mistreatment between the defendant and the plaintiff. Rather, it rests on the defendant’s moral responsibility for infringing a right against injury held by the plaintiff.，推荐阅读whatsapp获取更多信息
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