Brown v. Kendall

Citation. 6 Cush. (60 Mass.) 292 (Mass. 1850)

Brief Fact Summary.

While attempting to separate their dogs from fighting, Kendall accidentally poked Brown in the eye with a stick.

Synopsis of Rule of Law.

Though what constitutes ordinary care will vary based on the circumstances, ordinary care generally means the degree of care that a prudent man would use, as required by the exigency of the situation and as necessary to guard against probable danger.

Facts.

The dogs of Kendall and Brown were fighting. Kendall attempted to separate them with a four-foot stick while Brown watched from a short distance away. The dogs tussled over to Brown, at which time Kendall raised the stick to poke the dogs but accidentally struck Brown in the eye.

Brown sued for assault and battery.

Issue.

Was Kendall’s act necessary and, if so, did he exercise ordinary care?

Who holds the burden to proof whether Kendall exercised ordinary care?

Held.

The Supreme Court of Massachusetts disagreed with the lower court’s instructions to the jury, and a new trial was ordered.

The court held that, while Kendall’s act was not necessary, he should not be held liable for injury resulting from his unintentional yet lawful act if he exercised ordinary care.

Additionally, the court held that Brown should bear the burden of proving that Kendall did not exercise such care.

Discussion.

The facts stipulate that Kendall’s act was voluntary, in that he held and waved a dangerous object around, but that the act was unintentional in harming Brown.

Where Kendall’s act was unintentional despite exercising ordinary care

The degree of care that a prudent man would use, as required by the exigency of the situation and as necessary to guard against probable danger.

, he cannot be held liable for Brown’s injury because the injury was the result of a pure accident.

In other words, Kendall cannot be held liable if: (1) both Kendall and Brown exercised ordinary care; (2) Kendall exercised ordinary care, but Brown did not; or (3) both Kendall and Brown did not exercise ordinary care.