Vosburg v. Putney stands for the common law “eggshell skull” rule. Under this doctrine, someone who injures another person is liable for all damages resulting from their tortious act, even if the victim suffers disproportionately due to an unusual susceptibility to injury or disease.
George Putney (age 11) and Andrew Vosburg (age 14) were classmates at a school in Waukesha, Wisconsin. In class one day, Putney reached his foot across the classroom aisle and, in a playful or mischievous way, made contact with Vosburg’s leg just below the knee. Although the force of the kick was very slight, Vosburg later experienced extreme pain in his leg, accompanied by swelling and vomiting. Unbeknownst to Putney, Vosburg had injured that same leg some six weeks earlier, and the kick had aggravated the underlying injury. Vosburg eventually required surgery to remove a diseased portion of his shin bone, and he had diminished use of his leg for the rest of his life.
Vosberg brought a case to recover damages for assault and battery. The court found that Putney had not intended to harm Vosburg and had no knowledge of Vosburg’s vulnerable leg. Still, Putney was held liable for the full extent of Vosburg’s injuries. The court held that although Putney did not have the intent to harm Vosburg, he had intended to commit an unlawful act by kicking him, and thus he was liable for the consequences of that act. If the kick had occurred on the playground while the two boys were “engaged in the usual boyish sports,” there would be no liability due to the “implied license of the playground.” However, since the kick occurred in the classroom, there was no implied license, and “such act was a violation of the order and decorum of the school, and necessarily unlawful.” Vosburg v. Putney set the precedent that the scope of liability for torts depends not on the intent to cause harm but on the intent to commit the unlawful act that causes the harm.
Authorities Cited:
The following cases were cited by the defense in Vosburg to make the same argument, that without “evil intent there can be no recovery." The court implicitly rejected these arguments in finding that the unlawfulness of the action gave rise to liability.
Krall v. Lull (1880)
Citation(s): 49 Wisconsin Reports 403
This case involved a charge of assault and battery resulting from Lull shooting Krall with a pistol. The case turned on the question of whether the firing of the pistol was accidental or intentional. If the jury found that Lull had not intended to fire the pistol, he would not be guilty of assault and battery.
Coward v. Baddeley (1859)
Citation(s): 157 English Reports 927; 4 Hurlstone & Norman's Exchequer Reports 478
Coward, the plaintiff, was walking down the street in Islington, London, when he came upon a house that was on fire. Baddeley, the defendant, was a firefighter who was busy directing water from a hose at the fire. Coward, believing that Baddeley was making the fire worse, grabbed his shoulder to get his attention and said “Don’t you see that you are spreading the flames? Why don’t you pump on the next house?” Baddeley claimed that Coward had assaulted him and brought him into the custody of a nearby policeman, who imprisoned him for 24 hours. Coward sued Baddeley for false imprisonment, and Baddeley argued that he had committed no crime because Coward had committed assault and battery against him. The court determined that by touching Baddeley to get his attention, Coward lacked the requisite intent to harm, and the court subsequently found in favor of Coward.
Brown v. Kendall (1850)
Citation(s): 60 Massachusetts Reports 292 (6 Cushing's Massachusetts Reports 292)
Southworth & Hawes. Courtesy of the Museum of Fine Arts Boston.
Brown v. Kendall is a famous tort case in its own right, known for exemplifying the common law “reasonable person standard.” Brown and Kendall’s dogs were engaged in a fight, and Kendall sought to break up the fight by using a stick to separate the dogs. When he drew back the stick, he inadvertently struck Brown in the eye.
Brown sued Kendall for assault and battery. At trial, the judge instructed the jury that, if the act of using the stick to separate the dogs was a necessary and lawful act and Kendall did not intend to harm Brown, then Kendall would not be responsible for Brown’s injury. The jury found in favor of Kendall, and Brown appealed. On appeal, the Massachusetts Supreme Court remanded the case for a new trial, finding that the jury instructions had been improper. The proper standard to apply, according to the Massachusetts Supreme Court, was whether Kendall had exercised reasonable care in his actions, defined as “that kind and degree of care, which prudent and cautious men would use, such as is required by the exigency of the case, and such as is necessary to guard against probable danger.”
More Resources:
Smith v. Leech Brain & Co Ltd (1962)
Citation(s): 2 Queen's Bench 405
Smith v Leech Brain & Co Ltd was not cited in Vosburg, having been decided over seventy years later, but it is nonetheless an important case in the development of the eggshell skull rule. Smith worked as a galvanizer in a factory where he was responsible for immersing objects into a vat of molten zinc. Some of the molten metal splashed out of the vat and burned Smith’s lip. This burn ultimately precipitated the formation of malignant tissue, causing Smith’s death from cancer three years later. In an action to recover damages for Smith’s wrongful death, the Queen’s Bench held that the proprietor of the factory was responsible for all the damages resulting from the original burn, up to and including the death of the plaintiff. In so holding, the court expanded the application of the eggshell skull rule from cases involving assault and battery to include cases involving negligence.
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- Zigurds Zile, Vosburg v. Putney - A Centennial Story. 1992 Wis. L. Rev. 877 (1992).