Bad Dog: History of Ordinary Care

On Behalf of | Sep 16, 2015 | Dog Bites

What does a 150-year-old negligence case from Massachusetts have to do with car wrecks in San Antonio?

Brown v. Kendall may have been the first appearance of the “reasonable person” standard in American tort law. According to trial testimony, the defendant, Mr. Kendall, used a walking stick to separate two fighting dogs. While waving the stick, he accidentally hit Mr. Brown, who was standing nearby. The trial court told the jury that since Mr. Kendall engaged in a permissible act – separating the dogs – he would only be liable for accidental damages in extraordinary conditions.

The Massachusetts Supreme Court ruled that the trial court was wrong, and that the standard of care is the same in all negligence cases, no matter the circumstances. Writing for the majority, Chief Justice Lemuel Shaw simply stated that “the plaintiff must come prepared with evidence to show either that the intention was unlawful, or that the defendant was in fault,” adding that “what constitutes ordinary care will vary with the circumstances of cases.”


Many people are familiar with the so-called Golden Rule: do unto others as you would have them do unto you. Although that idea is not exactly like legal duty in a negligence case, the two concepts are similar.

As Chief Justice Shaw wrote, the meaning of “ordinary care” fluctuates depending on the circumstances. In support, he opined that a hunter in the field can discharge a firearm in many situations, while the same thing cannot be said of a woman on the street. As such, drivers in South Central Texas must:

  • Obey Traffic Laws: Motorists must stop at red lights, slow down when there is a yield sign, signal when changing lanes, and the list goes on.
  • Focus on Driving: Even if it is not technically illegal under the circumstances, motorists must not use their cellphones while driving, be rested before they get behind the wheel, not use alcohol or drugs, and so on.
  • Drive Defensively: Aggressive driving habits, like tailgating, horn-honking, and bad language, cause many car crashes.

When drivers breach the duty of ordinary care, and their breach causes actual damages, plaintiffs may recover compensation for both economic and non-economic injuries. Punitive damages are also available, in some cases.

Though the facts have changed, negligence cases remain much the same. For a free consultation in this area, contact an experienced New Braunfels personal injury attorney. You have a limited amount of time to act.