Brown v. Kendall 60 Mass. (6 Cush.) 292 (1850) For some reason, Kendall was beating two fighting dogs with a stick. He raised the stick and whacked Brown in the eye. Brown sued. During the trial, Kendall requested that the jury be told that if the defendant was using ordinary care and the plaintiff was not, then the plaintiff could not recover. o The judge declined to give that instruction to the jury. Instead, he told the jury that if the defendant 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, the defendant was 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. o 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. o The Appellate Court found that if a defendant's intention was unlawful or the defendant was at fault then the plaintiff could recover. o 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 Project Wonderful - Your ad here, right now, for as low as $0 you can't be held liable for an unintentional injury that results. o It is the burden of the plaintiff to show that the defendant was not exercising due care. This case marked a shift between strict liability for direct, forcible harms to a fault-based liability. o See the English case of Rylands v. Fletcher, which came to the opposite conclusion as this case.