Brown v. Kendall
60 Mass. (6 Cush.) 292 (1850)

  • Kendall was minding his own business beating two dogs with a stick. Brown came up behind Kendall, and Kendall accidentally whacked him in the eye with the stick. Brown sued.
  • During the trial, Kendall requested that the jury be told that if he was using ordinary care and the Brown was not, then Brown could not recover.
    • The judge declined to give that instruction to the jury. Instead, he told the jury that if Kendall was doing a necessary act, and was doing it in a proper way, then he was not responsible for his action, provided he was using proper care. If it was not a necessary act, then Kendall would be responsible for the consequences of the act unless he was exercising extraordinary care.
  • The Trial Court found for Brown. Kendall appealed.
  • The Appellate Court vacated the judgment and ordered a new trial.
    • The Appellate Court felt that this was a case of trespass vi et armis.
      • Trespass vi et armis means, “with force of arms.” It generally refers to trespass against someone’s body. It eventually turned into the concept of modern intentional torts (assault, battery, false imprisonment)
      • Trespass only applies to direct harms. Indirect harms were called trespass on the case, and eventually turned into our concepts of negligence torts.
    • The Court found that if a defendant’s intention was unlawful or the defendant was at fault then the plaintiff could recover.
    • However, if the injury was unavoidable, and the defendant’s conduct was “free from blame” then there would be no recovery.
  • Basically, the Court said that if you are not doing something illegal, and you are exercising due care while doing it, then you can’t be held liable for an unintentional injury that results.
    • It is the burden of the plaintiff to show that the defendant was not exercising due care.
  • This case marked a shift in jurisprudence. Before, courts tended to impose strict liability for direct, forcible harms so if someone got hurt you were liable, regardless if you weren’t being negligent or not. After this case, courts move to a more fault-based liability, which said that you are only liable if you were somehow negligent.
    • See the English case of Rylands v. Fletcher (L.R. 3 H.L. 330 (1868)), which came to the opposite conclusion as this case.