Tort Law

Brown v. Kendall

60 Mass. 292

Facts

• Brown and Kendall each owned a dog.
• The two dogs began fighting.
• Kendall attempted to separate them.
• He used a stick to beat or drive the dogs apart.
• While moving the stick backwards, Kendall accidentally struck Brown in the eye.
• Brown suffered serious personal injury.
• Kendall had not intended to hit Brown.
• Brown brought an action in trespass for assault and battery.
• The trial court instructed the jury that Kendall would be liable unless he proved:
o that he had exercised extraordinary care; or
o that the accident was entirely unavoidable.
• The jury returned a verdict for Brown.
• Kendall appealed to the Supreme Judicial Court of Massachusetts.
• He argued that he had been engaged in a lawful act and that Brown should have been required to prove a lack of ordinary care.

• Whether a defendant is liable for every direct physical injury caused during a lawful act.
• Whether accidental injury is actionable without proof of negligence.
• Whether the claimant or defendant bears the burden of proving want of reasonable care.
• What standard of care applied while Kendall attempted to separate the dogs.

• A defendant who unintentionally injures another while performing a lawful act is liable only if the injury results from negligence.
• Direct physical contact does not automatically establish liability.
• The claimant must ordinarily prove that the defendant failed to exercise reasonable or ordinary care.
• Ordinary care means the degree of caution that a prudent person would exercise in the circumstances.
• If the defendant exercised ordinary care and the injury resulted from pure accident, no tort liability arises.
• Under the contributory-negligence rules then applicable, the claimant could not recover if his own lack of ordinary care materially contributed to the accident.
• The level of reasonable care may vary according to the urgency and danger of the situation, but the legal standard remains ordinary prudence.

• Kendall was engaged in the lawful act of separating fighting dogs.
• His purpose was to stop the animals rather than injure Brown.
• The contact with Brown was unintended.
• Therefore, liability could not be established merely because Kendall’s stick directly struck Brown.
• The proper question was whether Kendall handled the stick without the caution reasonably required in the circumstances.
• Relevant matters included:
o Brown’s position;
o whether Kendall could see him;
o the distance between them;
o the urgency of stopping the fight;
o the manner in which the stick was swung; and
o whether a prudent person would have acted differently.
• The trial judge wrongly required Kendall to prove extraordinary care or inevitable accident.
• Tort law did not require him to demonstrate that every possible precaution had been taken.
• Brown, as the claimant, had to prove that Kendall failed to exercise ordinary care.
• The court also stated that if Brown’s own lack of care contributed to the injury, recovery could be prevented under the law then governing contributory negligence.
• The decision helped move American tort law away from older forms of action under which directness could create liability without fault.
• It established negligence, rather than direct physical causation alone, as the basis of responsibility for unintended injury during lawful conduct.

• The Supreme Judicial Court reversed the judgment for Brown and ordered a new trial.
• Kendall was not automatically liable merely because his stick directly struck Brown.
• Brown had to prove that Kendall failed to exercise ordinary care.
• The jury had received an incorrect instruction concerning both the standard of care and the burden of proof.