Brown v. Kendall (p. 100): Sample Brief Torts 4 (Fall 2007), 10/15/2007 Prof. Schlanger Setup: Defendant pokes plaintiff in the eye with a stick, raised behind him as he tries to separate the parties’ two dogs. Jury verdict for the plaintiff. Reversed by the Mass. Sup. J. Ct., Shaw, C.J. (1850) What is the procedural issue before the deciding court? Whether the jury charge was in error: “The court instructed the jury, that if it was not a necessary act, and the defendant was not in duty bound to part the dogs, but might with propriety interfere or not as he chose, the defendant was responsible for the consequences of the blow, unless it appeared that he was in the exercise of extraordinary care, so that the accident was inevitable, using the word not in a strict but a popular sense.” (p. 102) What is the substantive issue before the deciding court? What is the standard for liability in a case of accidental injury by a non-intentional touching. What are the alternatives available to the court? Negligence, strict liability, no liability (because non-intentional) What is the holding? Negligence: “The defendant was not liable, unless it was done in the want of exercise of due care, adapted to the exigency of the case, and the burden of proof was on the plaintiff to establish it.” (p. 103) Also: “If both plaintiff and defendant at the time of the blow were using ordinary care, or if at that time the defendant was using ordinary care, and the plaintiff was not, or if at that time, both the plaintiff and defendant were not using ordinary care, then the plaintiff could not recover.” (p. 102) – that is, negligence with a complete defense of contributory negligence. What is the court's reasoning; on what precedents, doctrinal moves, or policy arguments does it rely? Relies on Weaver v. Ward, read so that “inevitable accident” means “non-negligent.” What are the problems in the court's way, and how does it address them? The main problem is the existence of tons and tons of caselaw that finds liability without fault. The court says that this is all dicta—that the point was not that “liability will lie,” but that “liability will lie under trespass, if anything.” (p. 101) This is pure fiat. What is the judgment? Remand for retrial under correct instruction.
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