The other night I went to a social for graduate students where I met a med student. We compared our respective curricula, and as a classmate and I were telling him about our law courses, our attentions turned to our torts class. We tried to impress him by telling him how some of the cases we read are frequently graphic in their descriptions of various bodily injuries.
The first case we read in the class was Vosburg v. Putney. This was a case from 1891. Apparently there were two boys in a classroom. The younger boy, about 11, reached his leg over and with his foot lightly touched the shin of the other boy, about 14. At first there was no reaction, possibily because the touch was so slight. Then the elder boy suddenly shouted out in pain. The next day he was sick, and over the next few days got sicker to the point of vomiting. A doctor came to lance the now swollen leg and release the pus and pieces of bone that had accumulated.
The reason many in our class, including me, found the case so revolting was not just because of the description of the symptoms, but because the court found the 11 year old liable for damages to 14 year old. We started marvelling to each other about how inadvertantly touching someone could make their arm fall off. Medically it seemed so far fetched, and the legally the case also seemed equally facetious.
The med student, as we were describing the symptoms, nodded knowingly. "Bone sepsis," he said. The case indicated that the boy had sustained an injury to the same location a few weeks earlier from a sledding accident. The med student surmised that as a result of the injury, bacteria had probably managed to find its way to the inside of the bone. Bone interiors don't have substantial immune systems, which makes sense since they are sealed and rarely exposed to anything, so the infection was able to grow and fester and essentially rot away the bone. When the younger boy tapped him, the med student thought, the fragile bone must have given way and allowed the festering interior to suddenly hit his system and put him in septic shock.
The med student was amazed that the boy didn't die, but he was even more flabbergasted that the 11 year old was held liable. It was just a matter of time before the bone gave way and the elder boy would have suffered the same injury. Surely that inevitability should have exonerated the 11 year old?
I think what we are supposed to take away from this case is that the definition of battery includes any unwanted touching. That maybe the leg would have collapsed anyway, either next week or the next day or the next minute, but that the 14 year old would have had that much more time to enjoy his body in an untraumatized state. Forcing him, against his will, to suffer the septic shock at that time took away his control over his own body, and that was the wrong that needed legal redress.
I imagine my understanding of these issues will improve as the semester goes on, but it's clear that I'm already hard at work transforming my world view to incorporate these concepts.* It has to change, because I can't learn the law if I'm trying to pretend it's something else. But I think it is worth remembering the righteous indignation I've felt upon discovering some of these legal realities. It does seem unreasonable for people to be exposed to liabilities for such innocuous, innocently-intended, and common acts. Maybe someday the law can change to something more reasonable, but only if enough people who'd know how to do it remember why they'd want to bother.
* When I was demonstrating for the med student the lightness of the kick, I turned to my classmate and asked explicitly if I had his consent to kick him (for demonstration purposes, of course) because consent is a defense for battery. And I wanted to make sure I was covered just in case his leg fell off.