Vosburg v. Putney

Seal of the Supreme Court of Wisconsin

Here’s what happened:

Waukesha, Wisconsin, February 20, 1889. School. Class is in session. There are two boys that we are concerned with, Andrew Vosburg, who is 14, and George Putney, who is 11.

They’re sitting across from each other, and Putney, the eleven-year old, reaches across the aisle with his foot, and “hit with his toe the shin of the right leg of the plaintiff [Vosburg.]”

Only it should be written like this: “Boink”, because “the touch was slight.” The touch was so light, in fact, that “the plaintiff did not feel it. . . “

But – in a few minutes, Vosburg felt “a violent pain in that place, which caused him to cry out loudly.”

And then everything went to hell. The next day Vosburg was sick. On the fourth day, he was vomiting and a doctor had to be called. On the fifth day, February 25th, the doctor noted discoloration of the skin all over the inner surface of his lower leg, about an inch below the knee. And Vosburg was in terrible pain.

He didn’t get better.

On March 8th, the doctors performed surgery on his leg, and pus came out. Six days later, they did another operation, and found that the bone itself was being destroyed; actually shedding pieces of bone.

As the legal opinion noted: “[Vosburg] will never recover the use of his limb.”

But wait – there’s more. Because it turns out that Vosburg had previously injured his leg. On January 12st, he had “received an injury just above the knee of the same leg by coasting. But his leg was “healing up and drying down,” by the time Putney kicked him.

As the Wisconsin Supreme Court noted, “there was not any visible mark made or left by this touch or kick of the defendant’s foot, or any appearance of injury until the black and blue spots were discovered by the physician several days afterwards, and then there were more spots than one.”

So, Vosburg, the injured plaintiff, sues Putney. Here’s the first question:

Who wins?

(Take a minute; I’ll wait).

And now, here’s your chance to think like a lawyer – Question Two:


Who wins, and Why?


The answer is – Vosburg wins. The 14 year old with the destroyed leg wins. And the Wisconsin Supreme Court agrees.

But why? Why should Putney, the 11-year old, who kicked him so lightly that Vosburg didn’t even feel it, be responsible for his injuries?

Okay, now its time to start thinking like a lawyer.

First, it is clear that Putney intended no harm to Vosburg. He wasn’t trying to hurt him.

He barely even touched him.

And yet, the Court had no trouble concluding that he was properly held accountable for Vosburg’s injury and losses.

To understand why, we need to think about battery. A battery is the intentional unpermitted touching of someone else. Not when playing sports, or in casual, inadvertent contact while walking down a crowded street. Battery requires something more – it must be harmful or offensive contact.

The fact that the battery is intentional is something different, by the way, from an intention to cause injury. In Vosburg, the jury specifically found that Putney did NOT intend to injure or hurt Vosburg. So why should he be liable?

The answer may be found in considering whether the kick itself was lawful. It was not hard, or forceful, but it was, nonetheless, wrong. Why? Here’s what the Court had to say about that:

Had the parties been upon the play-grounds of the school, engaged in the usual boyish sports, the defendant being free from malice, wantonness, or negligence, and intending no harm to plaintiff in what he did, we should hesitate to hold the act of the defendant unlawful, or that he could be held liable in this action. Some consideration is due to the implied license of the play-grounds. But it appears that the injury was inflicted in the school, after it had been called to order by the teacher, and after the regular exercises of the school had commenced. Under these circumstances, no implied license to do the act complained of existed, and such act was a violation of the order and decorum of the school, and necessarily unlawful. Hence we are of the opinion that, under the evidence and verdict, the action may be sustained.

In other words, the focus is not whether the defendant intended to cause injury to the plaintiff, but whether he (or she) intended the unpermitted contact, in this, the kick. And the evidence was that Putney did intend to kick Vosburg.

Okay, we’re halfway there. But the question remains. Putney didn’t intend to hurt Vosburg, and in fact kicked him so lightly that at first Vosburg didn’t even feel it. So why should Putney be liable for everything that came after – for Vosburg’s leg essentially being destroyed? Doesn’t that seem disproportionate?

Welcome to the world of the eggshell plaintiff. This is a shorthand term that lawyers use, to address this very question. What it means is that you – the kicker, in this case, take your plaintiff as you find him. If, for example, you wrongly tap someone on the head, and unbeknownst to you, he has a freakishly thin skull, so that you cause severe trauma and head injuries, then you are responsible. Even though you didn’t know, and couldn’t have known that he had an “eggshell skull.” The principle is that you intended an unlawful or wrongful act, and are therefore responsible for all of the consequences of that act. The focus, then, is on the intent to do that act, not the intent to cause harm.

Does that make sense? At first, reading about the case, one might think that Putney should win- he literally meant no harm.

And yet, after analyzing the case, Vosburg won. And it stands to reason. Vosburg suffered injuries, and pain, not due to anything he had done, but rather, because of Putney. If we (as a society, or as jurors in a given case) are called upon to decide who should be responsible for making those injuries right, for fixing what was broken, then it makes sense that we hold the wrongdoer – Putney – accountable, rather than the plaintiff, Vosburg, who was just sitting in class at the time. This is true, even in unfortunate cases like this one. Over a c entry ago the Wisconsin Supreme Court wrote

The learned circuit judge said to the jury: "It is a peculiar case, an unfortunate case, a case, I think I am at liberty to say, that ought not to have come into court. The parents of these children ought, in some way, if possible, to have adjusted it between themselves." We have much of the same feeling about the case. It is a very strange and extraordinary case. The cause would seem to be very slight for so great and serious a consequence. And yet the plaintiff's limb might have been in just that condition when such a slight blow would excite and cause such a result, according to the medical testimony. That there is great uncertainty about the case cannot be denied. But perfect certainty is not required. It is sufficient that it is the opinion of the medical witnesses that such a cause even might produce such a result under the peculiar circumstances, and that the jury had the right to find, from the evidence and reasonable inferences therefrom, that it did.

So now you know. And now you have a glimpse into how lawyers think.