## Facts

- Two minor students attended school in Waukesha, Wisconsin.
- During class, the defendant extended his leg and intentionally made slight contact with the plaintiff’s shin just below the knee.
- The plaintiff soon felt severe pain and later developed serious complications in the leg, including swelling, discoloration, vomiting, bone damage, surgeries, and permanent impairment.
- The plaintiff had suffered an earlier injury to the same leg weeks before; evidence indicated it appeared nearly healed by the time of the classroom contact.
- A jury found the classroom contact caused the subsequent condition but that the defendant did not intend to harm the plaintiff.
- The trial court entered judgment for the plaintiff on an assault and battery theory; the defendant appealed.

## Issues

1. Whether an intentional but slight bodily contact during class can constitute battery when the actor lacks intent to injure.
2. Whether the setting (classroom versus contexts involving rough play) affects whether the contact is unlawful or privileged.
3. Whether the trial was tainted by erroneous jury instructions on intent/unlawfulness and by improper expert testimony elicited through defective hypotheticals on medical causation.

## Decision

- The Wisconsin Supreme Court reversed the judgment and ordered a new trial.
- The court held that battery may be established by an intentional, unlawful touching; intent to cause injury is not required if the act itself is unlawful in the circumstances.
- The court concluded that the trial court committed reversible error, including permitting expert opinions based on hypothetical questions that omitted material facts and giving inadequate or misleading instructions on intent and unlawfulness.

## Legal Principles

- An actor is liable for battery when he intentionally makes bodily contact that is unlawful (unconsented-to and unprivileged), even if he does not intend to cause harm.
- Whether a contact is privileged may depend on context; conduct potentially tolerated in informal play may be unlawful in a classroom environment requiring order and discipline.
- Expert medical opinions based on hypothetical questions must include material facts; omissions that distort the basis for causation opinions can render the evidence improper and require a new trial.
- When the trial record shows prejudicial error in evidentiary rulings or jury instructions on core elements, reversal and remand for retrial is appropriate.

## Conclusion

The court ordered a new trial after concluding that intentional, unpermitted contact during class can constitute battery without proof of an intent to injure, but that the first trial’s expert evidence and instructions contained reversible errors affecting the causation and liability determinations.


Vosburg v. Putney, 47 N.W. 99 (Wis. 1890)