Brown v Kendall


A defendant, attempting to break up a fight between his dog and the plaintiff’s, swung a stick behind him and struck the plaintiff in the eye. The jury found for the plaintiff after the trial judge’s instructions that the defendant would be liable if his actions were unnecessary and he had not exercised “extraordinary” care.

Questions of law

What is the basis of action for negligence in tort law? How did negligence arise from intentional torts? Shall a defendant be liable if his intention was not unlawful and the injury was unavoidable?


The court explored the concept of “ordinary care” as a common binder of negligence. An “inevitable accident” is an accident which could not have been avoided by the exercise of ordinary care necessary to the context. The judge found that if the act of hitting the plaintiff was unintentional and was done in pursuit of a lawful act, then the defendant would not be liable unless he had not met a standard of ordinary care.

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