Vosburg v Putney

Fact pattern and procedural history

During class, minor defendant lightly kicked minor plaintiff on the shin. Plaintiff subsequently succumbed to an infection associated with a former injury which left him without the further use of that limb. The trial court held for the plaintiff and it was reversed on appeal.


Questions of law

Did the defendant’s lack of intent to cause harm, as determined by the jury, render his act non-tortious?


The court held that an intentional tort in this context required either an unlawful touching or an intent to cause harm, but that the defendant’s lack of apprehension of serious harm was not a factor. Had the act happened on a playground or other area where contact was commonplace, it would have required an additional level of harmful intent, but because it took place after the class was called to order, the touching was out of order and was therefore unlawful battery, making the minor defendant responsible for the consequences of his actions regardless of whether those consequences were reasonably foreseeable.


The advent of modern medical science would likely have caused a modern jury to render a different verdict, given the severity of the permanent injury. It is unlikely that the described pathology was asymptomatic or benign prior to the unlawful touching, and therefore a modern jury would have likely held that the damages were nominal.

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