Development of Liability Based Upon Fault Chp.

1 Notes: Ordinary care that kind and degree of care, which prudent and cautious men use, such as is required by the exigency of the case, and as such is necessary to guard against probable danger. Brown v Kendall Facts: Two dogs, owned by Brown & Kendall, were fighting Kendall tried to break up the fight by hitting the dogs with a stick and in turn injured Brown when he/she raised the stick over his/her shoulder and hit Brown in the eye Kendall testified that the blow was unintentional Trial court judge gave jury instructions that if it was Ds duty to separate the dogs he could be held to a lower standard of care, but if he was doing it voluntarily he needed to exercise extraordinary care. Procedural History: The trial court committed an error during a trial that led to an adverse jury verdict; the jury found in favor of Brown The trial judge refused to give requested instructions to the contrary Who Won: A new trial was ordered so nobody won this time around Issue: Under the rule of the common law, whether a partys remedy, where he has one, should be sought in an action of the case, or of trespass Whether it was necessary or proper for Kendall to interfere in the fight between the dogs Whether the interference, if called for was in a proper manner What degree of care was exercised by each party on the occasion Under what qualifications, the party by whose unconscious act the damage was done is responsible for it Is the person responsible for damages if the act was done unconsciously Rule: It is frequently stated by judges that when one receives injury from the direct act of another trespass will lie If the injury was unavoidable, and the conduct of the defendant was free from blame, he will not be liable Evidence must be presented to show that the intention was unlawful or that the defendant was in fault; if the injury was unavoidable, and the conduct of the defendant was free from blame, he will not be liable If both the parties at the time of the blow were using ordinary care, or if at the time the defendant was using ordinary care, and the plaintiff was not, or if at the time, both parties were not using ordinary care, then the plaintiff could not recover

If it appears the defendant was doing a lawful act, and unintentionally hit and hurt the plaintiff, then unless it also appears to the satisfaction of the jury, that the defendant is chargeable with some fault, negligence, carelessness or want of prudence, the plaintiff fails to sustain the burden of proof and is not entitled to recover. NEW RULE! If the act was unintentional, then the plaintiff can collect on an action only if the defendant acted without ordinary care and the plaintiff acted with ordinary care. Holding: New trial ordered