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Brown v. Kendall

Citation. 60 Mass. 292 (1850)
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Brief Fact Summary.

A man swung a stick over his head, inadvertently poking the eye of the man behind him.

Synopsis of Rule of Law.

What constitutes ordinary care will vary depending on the factual circumstances.


The defendant was hitting two dogs with a long stick to stop them from fighting.  As he did, he raised it over his head, so that the tip was behind him.  Unbeknownst to him, the plaintiff was close behind him and as he swung the stick back, it poked the plaintiff in the eye, causing him injury.


Was the defendant negligent or did he exercise reasonable care?


The question of the defendant’s level of care is a factual inquiry, and the level of care required depends on the factual circumstances.


The court finds that the level of care required to preclude a finding of negligence depends on the factual circumstances.  The finder of fact must determine if it was necessary to separate the dogs, how much care the defendant exercised in trying to separate them, and if the plaintiff failed to exercise care by being so close to an obviously dangerous situation.

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