Vosburg v. Putney

80 Wis. 523, 50 N.W. 403 (1891)

Quick Summary

George Vosburg (plaintiff) sued Andrew Putney (defendant) for assault and battery after suffering a leg injury following a kick from Putney at school. The dispute centered around whether Putney could be held liable despite not intending to harm Vosburg.

The Wisconsin Supreme Court held that liability could arise from an unlawful act irrespective of intent to harm, especially in a structured environment such as a classroom. The initial judgment was reversed and a new trial was ordered.

Facts of the Case

George Vosburg (plaintiff), a fourteen-year-old student, and Andrew Putney (defendant), an eleven-year-old student, attended the same school in Waukesha, Wisconsin. On February 20, 1889, while seated in their classroom, Putney extended his leg and lightly kicked Vosburg on the shin.

Vosburg initially did not feel the kick; however, he soon experienced severe pain at the site of the contact. This pain intensified and caused Vosburg to become extremely ill over the following days.

Prior to this incident, Vosburg had sustained an injury above the knee on the same leg, which was healing. After Putney’s kick, a doctor found that Vosburg’s leg had become seriously infected, leading to permanent damage and loss of use of the limb.

The infection was believed to have been exacerbated by bacteria from the previous injury being activated by the kick. Vosburg subsequently sued Putney for assault and battery.

Procedural Posture and History

  1. The trial court initially awarded Vosburg $2,800.00 in damages.
  2. Putney appealed, resulting in a new trial with a reduced award of $2,500.00 for Vosburg.
  3. Putney then appealed to the Wisconsin Supreme Court.

I.R.A.C. Format


Whether a defendant can be held liable for assault and battery when he did not intend to harm the plaintiff but caused an injury through an unlawful act.

Rule of Law

In cases of assault and battery, liability can arise not only from an intention to do harm but also from committing an unlawful act, even if harm was not intended.

Reasoning and Analysis

The Wisconsin Supreme Court distinguished between actions that occur during play and those that take place in a structured environment like a classroom.

The court reasoned that if the incident had occurred during a play with no malice or negligence, and with no intent to harm, liability could not be established because of the implied license to engage in such activities.

However, since the kick took place in the classroom during school hours, it violated the order of the school and was considered unlawful.

The court held that an act done in a place where such acts are not permitted is inherently unlawful, and thus intent to harm is not necessary for liability in assault and battery cases.


The Wisconsin Supreme Court reversed the judgment of the circuit court and remanded the case for a new trial.

Key Takeaways

  1. Liability for assault and battery does not solely depend on the intention to harm; it can also result from committing an unlawful act.
  2. The context in which an action occurs (e.g., play versus classroom) can affect the determination of liability.
  3. Even slight acts can lead to significant consequences if they are done unlawfully within certain environments.

Relevant FAQs of this case

What constitutes an unlawful act in a civil liability context?

An unlawful act in a civil liability context is one that violates a legal duty or right, even if it does not involve criminal intent or action. This can include both actions that are inherently illegal, as well as those that are simply unauthorized or prohibited in a particular setting.

  • For example: In a museum, touching an art piece is considered unlawful due to the prohibition of such acts to protect the artwork, even if the person touching it had no intent to cause harm.

How does intent affect assault and battery claims?

In the context of assault and battery claims, intent refers to the purposeful action to cause apprehension or harmful contact. However, lack of intent to harm does not absolve the actor from liability if the action was unlawful or done with negligence.

  • For example: Throwing a rock into a busy street may not be intended to hit someone, but due to the negligence and potential for harm, it could result in liability for assault if someone was made to fear being struck, or for battery if someone was actually hit.

Can an individual be held liable for unintentional consequences of their actions?

Yes, an individual can be held liable for unintended consequences if their actions were negligent or violated a legal duty. Liability is not dependent solely on intent but also on whether the person breached a duty of care that resulted in harm.

  • For example: A homeowner forgetting to secure their aggressive dog can be liable for injuries caused if the dog escapes and bites a passerby, despite having no intention for the attack to occur.
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