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Now back to the story of the dogfight.
First, the dogs locked in battle.
Then their owners took up a battle of their own.
Mr. Brown wanted money as justice from Mr. Kendall.
Kendall didn't think Brown deserved it.
Brown brought a tort action against Kendall in a Massachusetts state court,
hoping to force Kendall to pay.
Now, Brown was the plaintiff and Kendall a defendant in an adversarial
court case that American legal history came to know as Brown versus Kendall.
We can speculate that Kendall was very unhappy about getting sued when he
intended no harm to Brown.
No one really likes getting sued.
But why?
Well, first of all, lawsuits can damage one's reputation as a good and
careful person, good and careful employer or business.
Second, lawsuits are time-consuming.
They can drag on for years.
You might be injured in 2014 and not see your case resolved until 2020.
Mr. Kendall died before Brown's case against him was resolved, and
the case against him had to go on against his estate represented by his wife.
Third, sometimes it seems litigious people sue just for
revenge, to annoy, or to get easy money through an out-of-court settlement.
Sometimes with deep pockets, such as wealthy defendants or
an insurance company.
Experts disagree about the percentage of U.S.
lawsuits that are frivolous and unjustified.
But I tend to think there are fewer lawsuits than would be warranted by
the facts.
There'd be more lawsuits, but people don't want to be hassled.
They don't have access to lawyers, and they can't manage the distractions.
We can speculate that Mr. Brown probably needed the money he was suing to get.
Most Americans who suffer serious accidental injury are not wealthy and
have a practical need for money to pay medical expenses or
to replace lost earnings resulting from their injuries.
In the U.S., we've never had a national health insurance plan that provides free
healthcare for ordinary people, and no job guarantees for injured workers.
We do have something called Social Security Disability programs that didn't
exist in Mr. Brown's day to help permanently disabled people.
But the amounts that people get from the state are very small compared to
what they might earn in a lawsuit.
But bringing and defending lawsuits is expensive.
You have to hire a lawyer.
The America legal system is far too complex for
the average man or woman to understand on their own.
The many deadlines and procedures that must be followed are known only to
local experts, attorneys who have completed law school, passed the state bar
qualifying them to practice law and gain practical experience.
The rules of common law, which differ somewhat in each of the 50 states
that comprise the United States, are not easy to research and learn.
Now plaintiffs with a decent claim can generally find someone to
represent them on a contingent fee basis.
The plaintiff's lawyer who agrees to work on a contingent fee basis only gets paid
if the plaintiff wins and generally earns nearly half the winnings or more.
In the U.S., if you get named as a defendant in a lawsuit,
you generally have to hire a lawyer, a private lawyer, to represent you and
pay them a large hourly fee.
Hourly fees are likely to be ten times or more that of a typical worker.
In the case of Brown versus Kendall, Brown successfully convinced a judge and
a jury, a jury made up of members of his own community who were assigned to
find the facts.
He convinced them that he was truly injured, truly injured by Kendall, and
that the injury was the specific sort the common law defines as a tort,
a civil wrong.
But Kendall did not consider himself a tortfeasor, a wrongdoer.
He considered the accident something for which he should not be held responsible.
He admitted his actions with the dogs and the big stick,
and that they contributed to the serious injury that his friend suffered, but
he believed he'd done nothing wrong.
He had not wanted to wound the plaintiff.
He'd only wanted to separate the dogs for
the legitimate purpose of protecting them from mutual destruction.
Dogs can't be allowed to hurt one another.
For Americans, dogs are treasured.
They can be pets and companions.
They can be work animals that help us earn our living.
Back in the 1960s, my great-grandfather used a pack of hound dogs that he
kept underneath his house for hunting and fishing.
Dogs hunt and help put food on the table.
Dogs can pull transportation sleds, guard businesses and
homes, and sniff out crimes.
They can help blind people to safely navigate city streets.
Kendall's attorneys appealed a decision against him to the Supreme Judicial Court
of Massachusetts, and in this higher court, he won.
Kendall believed he'd acted lawfully in trying to separate the dogs and
that he had not been negligent in the way he used the stick.
Indeed, it could be argued that if any one was negligent, it was Brown.
Arguably, Brown was standing carelessly close to Kendall and
that's why he got struck in the face.
Since Kendall was intently watching the dogs,
Brown should have been intently watching out for himself.
An old common law rule called the contributory negligence rule will prevent
an adult whose carelessness helped to cause an accident from recovering in
a lawsuit for accidental injury.
Now, today we compare the fault of those but for whom the accident would not
have occurred, and we apportion blame, reducing by some percentage the amount
a contributory negligent plaintiff can recover in their lawsuit.
Chief Judge Shaw ruled on appeal that the trial court had not
properly instructed the jury.
The jury should have been told clearly that Kendell would not be liable to
Brown unless he'd injured him either intentionally or negligently.
Brown and his lawyers failed to persuade Judge Shaw and the high
court that the correct rule of American common law was a rule of strict liability.
Under a rule of strict liability, if you cause an injury by deliberate act, even if
you don't mean to do it, you're liable no matter how careful you may have been.
Brown's lawyers wanted the court to follow, in essence,
the logic of an ancient English case sometimes thought to
be evidence of a common law rule of strict liability.
This case is called the Case of Thorns.
In the Case of Thorns, a man trimming hedges on the property line between his
land and his neighbor's land crossed over to clean up some fallen branches.
He was found civilly liable for trespass even though his
intentions were kindly rather than a deliberate effort to trample and
destroy with force and arms a neighbor's land.
He was trying to pick up his trash.
Nonetheless, he trespassed and was found liable.
So, in the end, it was found that Kendall would not have to
pay Brown unless in the new trial ordered by Judge Shaw, Brown could show
that Kendall acted negligently or intentionally in injuring him.
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