QUESTION 2 – EGGSHELL SKULLS
Consider Vosburg v. Putney, an 1891 Wisconsin case. Putney, age 11, kicked Vosburg, age 14, in the
leg during school. The kick was not very hard – the jury found that “defendant, in touching the
plaintiff with his foot, did not intend to do him any harm.” However, Vosburg was recovering from
an earlier sledding injury to the same spot, and the light kick somehow caused Vosburg to
permanently lose the use of his leg. The court ruled that, even though Putney had no way of
knowing Vosburg was so fragile, he (his parents) was liable for the harm done.
This is an example of the “eggshell skull” principle in tort law – even if someone has a skull as
fragile as an eggshell, if you tap them on the head and break their skull, you’re still liable.
This is also described as the doctrine that “we take our victims as we find them.”
(a) Recall that in the contract case, Hadley v Baxendale (the miller and the shipper), Baxendale
was only liable for “reasonably foreseeable” harms; here, Putney is being held liable for a harm
that was not foreseeable. Do you see a reason for the difference?
(b) An alternative rule would be for injurers to be held liable for the harm their actions would
have done to a “typical” victim, not the victim they actually injured. Which rule seems better to
(c) This is a case of strict vicarious liability – Putney’s parents are being held liable for
Putney’s action, and Vosburg did not need to prove that the parents themselves were negligent in
how they had raised Putney. Give an argument why a strict vicarious liability rule makes more
sense than a negligent vicarious liability rule, or an argument why a negligence vicarious
liability rule would be better.