BROWN V. KENDALL case brief

 BROWN V. KENDALL

• D trying to break up dog fight by swatting at the dogs with a stick. While swinging the stick Kendall hits Brown on the backswing.

• Only need ordinary care: the kind and degree of care, which prudent and cautious men would use, such as is required by the exigency of a case, and such as is necessary to guard against probable danger.

• Extraordinary care is not required, even if the activity is necessary.

• distinction between necessary or unnecessary act is irrelevant.

• POLICY: Gregory thesis (p. 37): Shaw’s motives underlying his opinion was a desire to create risk-creating enterprise less hazardous to investors and entrepreneurs that it had been previously at common law

• breaking up the dog fight was a risk-taking enterprise

• expansion of the assumption of risk defense in accidents arising out of industrial injuries