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Vosburg v. Putney
CourtSupreme Court of Wisconsin
Full case nameVOSBURG, by guardian ad litem, Respondent, vs. PUTNEY, by guardian ad litem, Appellant
DecidedNovember 17, 1891 (1891-11-17)
Citation(s)80 Wis. 523; 50 N.W. 403 Wisc. (Wisc. 1891) Second Appeal
Case history
Prior action(s)78 Wis. 84; 47 N.W. 99 (Wisc. 1890) First Appeal
Court membership
Judge(s) sittingLyon (2nd Appeal) Orton (1st Appeal)
Case opinions
  1. Sustained (yes)
  2. Remand, granting new trial.
  3. Sustained (yes)
Decision byLyon

Vosburg v. Putney, 80 Wis. 523, 50 N.W. 403 (Wisc.1891), "came three times before the Supreme Court of Wisconsin, and the court's opinions, the second one in particular, were soon selected for coursebooks on Damages and Torts and became well known to generations of students, teachers and scholars of law. Even a century later, the "case" continues to stimulate thinking about the judicial process, legal doctrine and liability theory."[1]

Principals[edit]

  • Defendant (Δ) - George Putney (tortfeasor), 11yo, male[2]
  • Plaintiff (Π) - Andrew Vosburg (contact victim), 14yo, male[2]

Student Brief[edit]

Student briefs are an important tool for legal education. The potential styles (and content) for student briefs are as numerous as there are students and professors. A variety of Vosburg v. Putney briefs can be found in the external links (infra).

Summary (Σ)[edit]

  • Vosburg v. Putney exemplifies the common law Eggshell skull rule.
  • This case also illustrates the well-settled proposition that the tortfeasor must take his victim as he finds him.
  • Material omissions in the statement of facts in a hypothetical question will render it inadmissible.[3]
  • The fact that the plaintiff is more susceptible to injury does not mitigate a defendant's liability. [4]

Facts[2][3][4][edit]

  • Δ and Π were sitting in the classroom of their Waukesha,Wisconsin school -- during school hours.
  • Δ reached across the aisle with his foot.
  • Intending no harm[5], Δ made contact with Π at the shin of the right leg ("just below the knee").
  • Π did not feel the contact due to the degree of force or shock.
  • Moments later, Π felt a violent pain in the place of contact.
  • Π became ill, reporting vomiting and swelling so severe, it twice required surgery.
  • During 2nd surgery, doctors discovered the bone had degenerated to an unrecoverable state.
  • Δ was unaware that Π had sustained injury to the same leg, approximately six weeks earlier.
  • Expert testimony attributed the damage and loss of limb use to the contact from Δ.

Procedural Roadmap (φ)[edit]

  • Π took action against Δ alleging assault and battery.
  • LC found for Δ and was awarded $2,800.
  • Π appealed. The verdict was set aside and the case was remanded with an order for a new trial.
  • On second trial, jury returns a special verdict of seven parts.
  • Δ motions ((JNOV) were denied, a judgment for $2,500 was granted to Π.
  • Δ appeals on sixth part of the special verdict - Did Δ intend to do Π harm?

Issues[6][edit]

  1. Whether the plaintiff lacked a cause of action where the jury found the "defendant, in touching the plaintiff with his foot, did not intend to do him any harm".
  2. Do material omissions in the statement of facts in a hypothetical question render it inadmissible?
  3. Is the recovery of damages limited to what an individual might reasonably be supposed to have contemplated?

Holdings[edit]

  1. Sustained (yes)
  2. Remand, granting new trial.
  3. Sustained (yes)

Judgment was reversed, and the case was remanded for a new trial because of error in a ruling on an objection to certain testimony.

Rules (Ψ)[2][4][edit]

  1. "The intention to do harm is the essence of an assault" and "If the intended act is unlawful, the intention to commit it must necessarily be unlawful."
  2. "there can be no rule of evidence which will tolerate a hypothetical question to an expert, calling for his opinion in a matter vital to the case, which excludes from his consideration facts already proved by a witness upon whose testimony such hypothetical question is based, when a consideration of such facts by the expert is absolutely essential to enable him to form an intelligent opinion concerning such matter."
  3. Brown v. C., M. & St. P. R. Co. 54 Wis. 342 - "The rule of damages in actions for torts was held [in a prior case] to be that the wrong-doer is liable for all injuries resulting directly from the wrongful act, whether they could or could not be have been foreseen by him [wrong-doer].

Rationale[edit]

  1. Reasoning that, such is the rule in actions for mere assaults. However, this action was for assault and battery. If the kicking of the Π by the Δ was an unlawful act, the intention to commit it must necessarily be unlawful.
  2. Reasoning that, "The error in permitting the witness to answer the question is material, and necessarily fatal to the judgment."
  3. Reasoning that, Previously (1st appeal), it was the opinion that the complaint stated a cause of action ex contractu [out of contract] and not ex delicto [out of tort]. Governed by a different rule of damages, the previous case rules on the question of damages.[2]

Thought Questions[7][edit]

Allison H. Eid, Epsteinian Torts: Richard A. Epstein, Cases and Materials on Torts, 25 SEATTLE U. L. REV. 89 (2001).

  • Should George be held accountable for the unexpected damage that resulted from a seemingly innocuous kick in the shin?
  • To state a cause of action for an intentional tort, does the tortfeasor need to intend to inflict the damage, or is the intention to do the "wrongful act" sufficient to establish liability?
  • Was the kick "wrongful" because it happened after school "had been called to order by the teacher"?
  • Did the doctor who gave Andrew "anodynes to quiet the pain" commit malpractice that exacerbated his injuries?
  • What about the fact that Andrew had suffered an injury "just above the knee" in a coasting accident a month-and-a-half before the incident in the schoolhouse?
  • Does it make a difference that Andrew and George were classmates-accustomed to getting one another's attention by kicking-rather than strangers on the street?

Counter Argument[8][edit]

While Δ could not have known how fragile his leg was, he knew more about the subject than the Π. Δ knew of the previous injury and that it was still healing. Therefore, "fragile" victim is more likely to have more knowledge of potential fragility than is the tortfeasor. The party with more knowledge has an incentive to take appropriate precautions.

Instead of foreseeability as a cornerstone, knowledge in the possession of both parties and evidence of the circumstances must be considered. Hadley v Baxendale A reasonable person might conclude, it is more pragmatic to deal with the problem by holding the most knowledgeable to a standard of appropriate precaution than having everyone in the world treat everyone else like an egg.

References[edit]

  • Allison H. Eid, Epsteinian Torts: Richard A. Epstein, Cases and Materials on Torts, 25 SEATTLE U. L. REV. 89 (2001).
  • Dobbs, Dan B., Paul T. Hayden, and Ellen M. Bublick. Torts and compensation: Personal accountability and social responsibility for injury. St. Paul, MN: Thomson/West, 2009
  • Epstein, Richard Allen. Cases and materials on torts. Austin: Wolters Kluwer Law & Business/Aspen, 2008.
  • Farnsworth, Ward, and Mark F. Grady. Torts: Cases and questions. Austin: Wolters Kluwer Law & Business, 2009.
  • Friedman, David D. Law's order: What economics has to do with law and why it matters. Princeton, NJ: Princeton UP, 2000.
  1. ^ McKinney, W.M., Michie, T.J. (1992), "The Encyclopaedia of Pleading and Practice: Under the Codes and Practice Acts, at Common Law, in Equity and in Criminal Cases", Wis. L. Rev., LexisNexis{{citation}}: CS1 maint: multiple names: authors list (link)
  2. ^ a b c d e Epstein, Richard A. (2008). Cases and Materials on TORTS. New York, NY: Wolters Kluwer/Aspen. ISBN 9780735569232.
  3. ^ a b McKinney, W.M., Michie, T.J. (1897), The Encyclopaedia of Pleading and Practice: Under the Codes and Practice Acts, at Common Law, in Equity and in Criminal Cases, vol. 8, E. Thompson Co.{{citation}}: CS1 maint: multiple names: authors list (link)
  4. ^ a b c Farnsworth, Ward, Grady, Mark F. (2009), Torts: Cases and Questions (2nd ed.), Austin, TX: Wolters Kluwer Law & Business/Aspen, ISBN 9780735582941{{citation}}: CS1 maint: multiple names: authors list (link)
  5. ^ Dobbs, Dan B., Paul T. Hayden; Bublick, Ellen M. (2009), Torts and Compensation: Personal Accountability and Social Responsibility for Injury (6th ed.), St. Paul, MN: West Group, ISBN 9780314184900
  6. ^ Lyon, William P. (1891), VOSBURG, by guardian ad litem, Respondent, vs. PUTNEY, by guardian ad litem, Appellant, Harvard University (law.harvard.edu) {{citation}}: Cite has empty unknown parameter: |num= (help)
  7. ^ Eid, Allison H. (2000), "Epsteinian Torts: Richard A. Epstein, Cases and Materials on Torts", SEATTLE U. L. Rev., Princeton, NJ: Princeton University {{citation}}: Unknown parameter |num= ignored (help)
  8. ^ Friedman, David D. (2000), Law's order: what economics has to do with law and why it matters, Princeton, NJ: Princeton University, ISBN 0691010161

External links[edit]

Category:United States tort case law Category:1891 in United States case law Category:Wisconsin state case law

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