• Video

Brown v. Kendall: The Line Between Consensual and Stranger Cases

It can be difficult to allocate responsibility and liability in a Tort case. Professor Richard Epstein explains why he favors a non-traditional approach for injury cases. He argues that such cases ought to be considered as “stranger” cases, which gives the defendant the benefit of the doubt while examining the motives and causes that led to the injury. https://youtube.com/watch?v=wQrl9peVrCI


One of the famous cases in Torts is a case called Brown v. Kendall, where there are two dogs, one owned by the plaintiff and one owned by the defendant. It turns out under these circumstances, the defendant takes a stick in order to prevent the two dogs from fighting. As the plaintiff moves closer, he gets poked in the eye and the question is whether or not he could sue for the harm in question. So let's start with this as a stranger case at first .And what Chief Justice Shaw did in this case, is he treated as though it were a stranger case, thought that liability would be unfair under the circumstances and so therefore found the rule which was dating back to Roman times, that there was no strict liability in Tort for personal injuries inflicted by one party upon a stranger. But the other way in which to understand this problem is to put yourself into the position of the plaintiff. And this was a person who constantly came closer to the action. You assume the risk by going closer to the situation, so the strict liability rule does not apply, and the intuition here is very clear. And the other element is as follows: normally when people act, they act for their own benefit. But in this particular case, he was acting for the benefit of both parties, trying to preserve both dogs. So the argument is when somebody's tried to confer a benefit upon a stranger the strict liability rule is now inappropriate and a negligence rule is appropriate, because essentially you want to give a break to the fellow who's tried to provide a benefit, in whole or in part, to another individual. So, the way I think that it's best to think about these cases is to first treat every case of an injury as if it's a stranger case. And then, after you do that, ask whether or not there's an affirmative defense based upon the plaintiff's conduct, which otherwise alters the outcome in the case. The traditional view tend to ignore this issue, and essentially, put much too much weight on the prima facie case and does not pay sufficient attention to the defense’s.

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