Citation. 2010 U.S. App.
Brief Fact Summary.
Defendant accidentally struck Plaintiff in an attempt to separate fighting dogs. Plaintiff sued Defendant in an action of trespass for assault and battery.
Synopsis of Rule of Law.
If the injury was unavoidable, and the conduct of Defendant was free from blame, he will not be liable.
Facts.
Two dogs, belonging to Plaintiff and Defendant, were fighting. Defendant took a stick about four feet long and commenced beating the dogs in order to separate them. Plaintiff was looking on. In their struggle, the dogs approached the place where Plaintiff was standing. Defendant retreated backwards from the dogs, striking them as he retreated. With his back towards Plaintiff, Defendant raised his stick over his shoulder and accidentally hit Plaintiff in the eye, inflicting severe injury upon him. Plaintiff sued Defendant in an action of trespass for assault and battery.
Issue.
Is Defendant responsible for damage done by an unintentional act?
Held.
No. Judgment for Defendant. New trial ordered.
* Plaintiff must come prepared with evidence to show either that the intention was unlawful, or that the Defendant was at fault. If the injury was unavoidable, and the conduct of Defendant was free from blame, he will not be liable.
* If both Plaintiff and Defendant at the time of the blow were using ordinary care, or if at the time, Defendant was using ordinary care, and Plaintiff was not, or if at that time, both Plaintiff and Defendant were not using ordinary care, then Plaintiff could not recover. Ordinary care will vary with circumstances of the case. Generally, it means that kind and degree of care, which prudent and cautious men would use.
* The act of Defendant in attempting to part the fighting dogs was a lawful and proper act. If it was the result of pure accident, or was involuntary and unavoidable, the action would not lie. If Defendant was chargeable with some negligence, and Plaintiff was contributorily negligent, Plaintiff cannot recover without showing that the damage was caused wholly by the act of Defendant.
* Plaintiff bares the burden of proof. In this case, Plaintiff failed to carry his burden.
Discussion.
If the injury was unavoidable, and the conduct of Defendant was free from blame, then Defendant will not be liable. Plaintiff bears the burden of showing that either the intention was unlawful or that Defendant was at fault. This case also discusses the concept of contributory negligence. If the court finds that Plaintiff was contributorily negligent in causing his injury, he cannot recover. In other words, if Plaintiff’s own negligence contributed to his injury, he cannot recover under a negligence theory.
