Transition to Negligence

Question 1

*Kendall

Answer 1

Dog fight. Hitting with stick to separate when accidentally hit plaintiff. Court decided opposite of Brian’s stick example in Thorns; here the plaintiff has to prove negligence instead of the defendant being automatically liable. Court said the plaintiff needed to show unlawful intention or defendant’s fault – this is exactly like Vosburg, but back then we were discussing the unlawful intention part, now we are on defendant’s fault. RULE for plaintiff recovering in negligence cases:
o Plaintiff and defendant using ordinary care – no recovery
o Defendant using OC and plaintiff not – no recovery
o Plaintiff and defendant both not using OC – no recovery
o Recovery ONLY when defendant not using OC and plaintiff is

RULE for ordinary care: Ordinary care varies with circumstances but means “kind and degree of care, which prudent and cautious men would use, such as is required by the exigency of the case, and such is necessary to guard against probable danger.” Burden of proof is on the plaintiff to prove the defendant didn’t use due care. Defendant had a defense of inevitable accident, meaning defendant could not have avoided even with proper ordinary care.