Vosburg v. Putney

80 Wis. 523 (1891)


While they were sitting opposite one another in a school classroom, defendant lightly kicked plaintiff in the shin.  About a month before, plaintiff had injured the same leg, but the injury appeared to be healing up.  Defendant’s contact was so slight that plaintiff did not feel it, but a few moments later he felt a violent pain in that part of his leg.  The injury got worse and required surgery and plaintiff ultimately lost use of his leg.  One of the medical witnesses testified that plaintiff’s leg was already in a diseased condition from the prior injury when defendant touched it, ultimately causing destruction of the bone.

Procedural History

Plaintiff was awarded damages for assault and battery following a jury trial in the circuit court.  Defendant appeals and the judgment was reversed and a new trial awarded.  Plaintiff again was awarded damages following the second trial, and defendant’s motions for judgment in his favor on the verdict and for a new trial were denied.


1.  Is defendant liable for assault and battery if he did not intend to cause plaintiff harm?

2.  Is defendant liable for unforeseen injuries caused by his tortious act?

Rule / Holding

Defendant is liable for assault and battery even if he did not intend to cause plaintiff harm by touching his leg.  To recover damages for assault and battery, the plaintiff must show “either that the intention was unlawful, or that the defendant is in fault. If the intended act is unlawful, the intention to commit it must necessarily be unlawful.”

Plaintiff was entitled to all damages resulting from defendant kicking his leg.  A tortfeasor “is liable for all injuries resulting directly from the wrongful act, whether they could or could not have been foreseen by him.”


The surrounding circumstances must be considered in determining whether an act is tortious or unlawful.  The outcome might have been different if the parties had been playing around on the school playground, where such behavior is expected.  However, the injury was inflicted in school after the teacher had called the class to order.  Under these circumstances, “no implied license to do the act complained of existed, and such act was violation of the order and decorum of the school, and necessarily unlawful.”  Therefore, defendant’s intention to commit the act was also unlawful even if he did not intend harm.

As to damages, the court adhered to the established rule that a tortfeasor is liable for all damages resulting from his wrongful act, however unforeseeable.  It did not matter that defendant could not have anticipated that lightly touching plaintiff’s leg would cause such severe injury.  This is commonly referred to as the “eggshell skull” rule or “thin skull” rule.

Comments are closed.