Blogging Epstein on Torts 9th Edition: Vossburg v. Putney 50 N.W. 403 (Wis. 1891)

Well, it has been quite a while since I’ve posted anything here. My main activity over the past few weeks has been law school applications, writing short stories, and getting human interaction. Still, not posting something immediately when I found out about Leonard Nimoy’s death calls into question who I am as a person.

Blogging Epstein on Torts 9^th Edition Part 1

I would like to point out that I do not wish to post the content of Prof. Epstein's casebook and hope to use it in a way that will not inspire me to do a lot of rapid copyright law research and gain practical experience with filings. I intend this for educational purposes, not commercial.

Vosburg v. Putney50 N.W. 403 (Wis.1891)

The case the learned Prof. Richard A. Epstein chooses to start out with is two schoolchildren in Wisconsin.

The facts of the case are that one child kicked the other. Such a simple (but prohibited) act triggered a previously unknown bacterial infection that necessitated the amputation of the leg that had been kicked. While that seems such an unexpected outcome that the behavior of the first child (the kicker) should not be held responsible for the ultimate outcome of the second (the kickee), the circuit court that handled the case ruled in favor of the plaintiff despite the misgivings of a judge as to the reasonableness of children’s behavior being resolved by judicial means.

The principle the compiler of the casebook is communicating is that the one who engages in an improper act (even one not seemingly likely to result in harm) is liable for the outcomes (however surprising).

Prof. Epstein further communicates the point with reference to Garrat v. Dailey , 279 P.2d 1091 (Wash. 1955) where a young child pulled a chair out from where an arthritic woman was about to sit, resulting in injury. It was made clear that the intent was unlawful therefore the act (otherwise innocent) was no longer so. As the principle above is applied, the child and the parents of the child are responsible for the harm the child causes when engaging in improper behavior.

Upon discussion with an actual JD, he pointed out that the principle that the existence of a tort having taken place is objective but the extent of damage is subjective.

Something that puzzles me is that the case seems to be built upon the acceptance that the kick was intended to cause a harm (even if minor). Indeed, the jury had pointed out that the kicker had not intended any harm but still found him liable. The grounds for recovery of damages in this case seems to be that the kick was against the expectation of order and decorum in the school and thus improper. The lack of any reason to suspect that dormant bacteria would destroy the leg of a person one kicks lightly makes me inclined to see no harm to be expected. That a kicks are routinely used for quiet communication in orderly situations (business meetings, classrooms, theaters) would seem to argue (in my pre-Law School mind) that a kick would not be a violation of the expectation of order.

I feel both relieved that I was not the subject of more lawsuits as a child and curious how that relates to Palsgraf v. Long Island R.R. 162 N.E. 99 (N.Y. 1928) which is famous for whether alleged negligence on the part of multiple train employees dealing with another person could be liable for the outcome for a third party as a result of a freakishly improbable chain of events.