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The Case of The Eggshell Plaintiff: Vosburg v. Putney, 80 Wis. 523, 50 N.W. 403 (Wisc.1891)

Small Town Wisconsin Legal Arena

Little red schoolhouse in meadow on misty morning

The Biggest Case from Wisconsin: When Can an Injured Person Assert a Claim for Recovery From His Injuries

Who would have thought that the small town of Waukesha, Wisconsin would be the setting for one of the most heavily discussed incidents in law schools for over one hundred years? In 1891, this was the scene for a common schoolboy scruff that turned contentious, and then turned historical. On a regular school day, George Putney and Andrew Vosburg attended class as they normally would. They had lunch, went to recess, then returned for the rest of their lessons and that is where the drama took place. For no apparent reason, Putnam-who was sitting just adjacent to Vosburg-reached across the aisle and kicked his fellow classmate in the leg, just below the knee on the shin. Later, Putnam would claim that he did not mean to harm Vosburg.

Well, unfortunately, the best-laid plans often go awry. While Vosburg could hardily feel the impact of Putnam’s kick, just a few moments later was struck with a terrible pain at the site of the hit. The aggravation following the incident made him so sick that he suffered from excessive vomiting and discomfort. It got so bad that he required two surgeries to try and fix the matter but during the second operation doctors discovered that the affected bone was beyond repair and could not be fixed. Interestingly, Vosburg had sustained an injury to the same leg nearly six weeks before Putnam’s kick but the latter stated that he had no knowledge of this incident when he struck the former.

The Young and the Battered

Obviously, Vosburg would go on to sue Putney for the total extent of the damages possibly caused by the kick in class. Eventually, the Supreme Court of Wisconsin would hear review it three times and by the end, every law student would read about it for over a century. What the case essentially boiled down to were three issues and the holdings on each of them would largely come to define battery and intentional tort law across the country.

The first involved intent. The defendant claimed that no action could be brought against him because he did not intend to do any harm to the plaintiff, and in his defense he cited legal precedent that stated, “The intention to do harm is of the essence of an assault.” The court acknowledged this as valid law and reasoning but attributed it to different circumstances. It stated that this rule applied to mere assaults but the case at hand involved more than that-it involved assault and battery. Therefore, different rules applied. In this instance, the court separated acts from intent. If an act is unlawful or wrong, then the intent to commit that act is unlawful or wrong as well, it reasoned. Thus, a plaintiff can show either that the intent was wrong or that the defendant was actually at fault. Applied here, it was wrong to kick another student in class, and the intent to commit that act was necessarily wrong as well (“If the intended act is unlawful, the intention to commit it must necessarily be unlawful”). The subjective desire that Putnam had not to hurt Vosburg was irrelevant. These situations are judged from an objective standard-what a reasonable person would think is right or wrong in the given circumstances. Also, the court in this case put special emphasis on the fact that context governs. Had the children been playing a game during recess, then there might have been some implied license for this kind of context. But the kick actually came during class where no license of any kind was apparent and, as such, it must objectively be viewed as wrongful in the circumstances.

The second issue centered on evidentiary problems. At trial, the plaintiff produced a witness, a doctor, to testify to the source of Vosburg’s extreme medical complications. The defendant objected when the plaintiff’s lawyer excluded evidence of prior injuries Vosburg had sustained to the same leg. The trial judge overruled these objections had allowed the testimony to continue. After being called to speculate as to the source of Vosburg’s medical crises, he said, “The exciting cause was the injury received at that day by the kick on the shin-bone.” The Wisconsin Supreme Court found fault with this procedural ruling. It stated that the trial court should have sustained the defense’s objections and allowed in evidence of the prior injuries because it was “Absolutely essential to enable him to form an intelligent opinion concerning such matter.” Also, as an expert witness, the basis for and quality of his testimony is of crucial importance.

The third issue revolved around damages. In the case, Vosburg claimed an extraordinary sum for the time, roughly $2,500.00, or more than $60,000.00 adjusted for inflation in today’s dollars. To this, and quite naturally, Putnam tried to shed most of the damages as not attributable to him. Specifically, he stated the only damages that he should have to pay were those “That (he) might reasonably be supposed to have contemplated as likely to result from his kicking the plaintiff.” So, ostensibly, the actual hurt of the slight kick that Putnam gave Vosburg produced incidental costs which Putnam would not deny paying but the complications that later developed (probably from the aggravation of Vosburg’s earlier injury) should be attributed to someone else because he could not have imagined producing that much damage. The court rejected this reasoning. It stated that wrongdoers are responsible for all costs arising directly out of their actions, whether they are foreseen or not. Out of these facts and holding, it has become settled law that people must take others as they find them and must pay for all damages. Even if certain victims are more susceptible to extensive complications than others, defendants in the wrong must pay for all complications. This is “Eggshell skull” rule whereby even if a little act produces violently disproportionate damages, the defendant is forced to bear all of them and this case is the best proponent of that canon.

Vosburg: 125 Years Later

Over 100 years later, many may ponder why such thought and discussion is placed on schoolyard scrum in a small town so long ago. However, certain principles emerge from this case and are timeless in their meaning and significant in their application for their future. First, intent is objectively attached to actions. No matter what you wanted to accomplish, if you intended a wrongful act, you are at fault and liable for everything that follows. Second, context matters. If you can claim that what you did was customary for the environment then you might get off without fault. Putnam could not do that and it largely doomed his case. These principles of intentional torts and battery still apply and fundamentally guide legal perspectives.