D tried to separate the dogs and, in doing so, unintentionally hit P in the eye and injured him.
The court instructed the jury that if D was under a duty to perform the act, he only needed to use ordinary care. If the act were just a lawful act and D was under no obligation to perform, D must use extraordinary care.
Lower court found for P.
MA Supreme Court reversed, remanded because of erroneous jury instruction.
Is an individual, in the course of doing a lawful act, required to use more than ordinary care in order not to be liable for injuries caused to another party as a result of the act?
An individual, who in the course of doing a lawful act uses ordinary care, is not liable for injuries resulting from the lawful act.
The P must show in cases such as this that the D's intention was unlawful or that the D was at fault.
If injury to the P was unavoidable, then the D is not liable.
The P must prove that the D's act was unlawful or that the D failed to exercise due care.
Burden of proof shifting more towards the P. (moving further away from strict liability)
P must prove that D caused his injuries and that D did so negligently or intentionally.