Tort, property and contract are the enduring species of the private common law. The odyssey of the common law begins after the Norman conquest of England in 1066. Law at the time was intensely feudal. Authority flowed hierarchically: vassals answered to their lords, and the lords, in turn, to the chief lord, the King of England. The King, in fact, asserted the exclusive prerogative to determine when and how his subjects could seek recourse in court. In tort, this meant that the King alone could declare which transgressions against the “King’s peace” warranted compensation.

Even so, in practice, local lords often adjudicated disputes among their vassals. For a flavor of the period’s legal sensibilities, one need look no further than Monty Python and the Holy Grail (1975), in which a landowner presides over the farcical trial of an alleged witch. As comedic as the scene is, it reflects the decentralized—and often arbitrary—dispensation of justice during this era. You can watch the scene at this link: https://www.youtube.com/watch?v=rf71YotfykQ.

To bring greater uniformity to the administration of justice, the Crown eventually turned to the use of writs. A “writ” was, in essence, a royal command: a standardized legal form that initiated a claim and defined the contours of permissible litigation. Suppose, for example, that the King one morning decided that his subjects ought not strike each other with sticks. He would draft a general directive to that effect, leaving blanks for the names and dates, and affix the royal seal. The Chancellor would then circulate copies to the various lordships, who would in turn pass them down the chain of feudal governance. Thus, the next time Benedict Blacksmith struck Frederick Farmer with a stick, Farmer could invoke the writ and compel Blacksmith to appear in court. See Hulle v. Orynge (The Case of Thorns), (1466) Y.B. 6 Edw. IV, fo. 7, pl. 18. (The actual formation and development of the writs process was, of course, far more complex, but this simplified illustration will do for our purposes). Rinse and repeat for other forms of prohibited conduct. Writs were thus like form letters, having the truly immemorable style of the modern version of template lease agreements.

These writs eventually coalesced into categories. One of the most important was the writ of trespass, which applied to direct, forcible injuries. Within trespass, subcategories proliferated: trespass vi et armis covered battery-like conduct, while trespass de bonis asportatis addressed the unlawful taking and damaging of goods. The writ system prized formality over flexibility. If a plaintiff’s injury did not fall squarely within the narrow bounds of a recognized writ, the claim was doomed—regardless of the wrong suffered.

Consider a canonical illustration. If Benedict Blacksmith tosses a log into the street and the still-moving log strikes Frederick Farmer, Farmer may sue in trespass: direct force was applied to his person. But if the log comes to rest and Farmer later trips over it, breaking his arm, no trespass lies. Because the injury arose from indirect force, the plaintiff is out of luck—at least under the old writ of trespass. (Make a mental note of the term “direct”; we will return to it later in our discussion of proximate cause, alongside related terms such as “natural,” “ordinary,” “reasonably foreseeable,” and “within the zone of risk.”)

By the late 14th century, the rigidity of this system had become untenable. The Crown responded with a new writ—trespass on the case, later known simply as “Case.” This new form allowed claims based on indirect injuries. It was far more accommodating than trespass, permitting plaintiffs to tailor the writ’s language to the factual circumstances of their disputes. In our earlier example, Case would allow Farmer to recover for tripping over the stationary log. See Reynolds v. Clarke, (1726) 1 Str. 634, 93 Eng. Rep. 747, 748 (“if a man throws a log into the highway, and in that act it hits me, I may maintain trespass, because it is an immediate wrong; but if as [the log] lies there I tumble over it and receive an injury, I must bring an action on the case, because it is only prejudicial in consequence”). 

These changes within the writ system were mirrored in the courts themselves. As Case and related writs proliferated in tort, contract, and property, common law courts were soon overwhelmed. The sheer volume of claims outpaced their capacity. Litigants grew frustrated. So did the King. The common law courts, with their formulaic procedures, also failed to deliver adequate remedies in many disputes. Monetary damage, the primary remedy of the time, was often deemed insufficient. When a neighbor’s flooding or persistent noise disrupted another’s property, money alone did little to stop the nuisance. What the plaintiff might really want (or need) is an injunction to stop the harmful activity altogether. Once again, litigants got upset, and so did the King.

To address both the procedural congestion and the substantive rigidity of the common law, the King established a parallel system of courts—courts of equity. Administered by the Lord Chancellor, these courts were not bound by the strict formalities of writ-based pleading and were empowered to craft more flexible remedies. The most prominent of these was the Court of Chancery, which adjudicated disputes in equity and dispensed relief based on principles of fairness. This dual-court system—law and equity—became a defining feature of English jurisprudence.

In time, American law would inherit much of this tradition, but with critical innovations. First, U.S. courts abandoned the artificial distinctions among writs in favor of a taxonomy grounded in the defendant’s mental state. Tort law today rests on three main pillars: (1) intentional torts, where the defendant acts with purpose or knowledge that harm will follow; (2) negligence, where harm results from a failure to exercise reasonable care; and (3) strict liability, where the defendant’s culpability is irrelevant and liability attaches merely because the defendant engaged in abnormally dangerous activities. See Brown v. Kendall, 60 Mass. (6 Cush.) 292 (1850) (breaking away from the English common law and recognizing, for the first time, intentional torts and strict liability as distinct torts).  

Second, and perhaps most dramatically, virtually all American jurisdictions have merged law and equity into a unified court system. Only three states—Mississippi, Tennessee, and Delaware—retain separate chancery courts, and even these courts serve narrower functions than their English antecedents. Judges across the country now grant equitable remedies as a matter of routine, without pausing to label themselves as “chancellors” or “common law judges.”

Across the pond, even England has followed suit. The old forms have withered. Mental state, rather than mode of force, now governs liability. See Weaver v. Ward, (1616) Hob. 134, 80 Eng. Rep. 284 (affirming strict liability as a standalone basis for recovery); Williams v. Holland, (1833) 10 Bing. 112, 131 Eng. Rep. 848 (establishing negligence as an independent cause of action); and Fowler v. Lanning, [1959] 1 Q.B. 426 (finally discarding the Trespass/Case distinction altogether).

In that sense, the common law, on both sides of the Atlantic, resembles a living organism. It is shaped by concrete facts, abstracted into rules, and refined over time as courts apply those rules to novel disputes. It evolves—methodically, but not without friction. And yet, that evolution is not always rational or linear. As Justice Oliver Wendell Holmes famously observed, the survival of legal rules often has less to do with continued utility and more to do with historical residue. Writing in The Common Law, Holmes warned that legal doctrines can outlive the beliefs or conditions that gave rise to them, sustained not by reason but by custom and habit. Over time, he suggested, courts invent new justifications for old forms, giving archaic rules a modern gloss even as their logical foundations crumble. In his words:

A very common phenomenon, and one very familiar to the student of history, is this. The customs, beliefs, or needs of a primitive time establish a rule or a formula. In the course of centuries the custom, belief, or necessity disappears, but the rule remains. The reason which gave rise to the rule has been forgotten, and ingenious minds set themselves to inquire how it is to be accounted for. Some ground of policy is thought of, which seems to explain it and to reconcile it with the present state of things; and then the rule adapts itself to the new reasons which have been found for it, and enters on a new career. The old form receives a new content, and in time even the form modifies itself to fit the meaning which it has received. [...] The official theory is that each new decision follows syllogistically from existing precedents. But just as the clavicle in the cat only tells of the existence of some earlier creature to which a collar-bone was useful, precedents survive in the law long after the use they once served is at an end and the reason for them has been forgotten. The result of following them must often be failure and confusion from the merely logical point of view.

Oliver Wendell Holmes, The Common Law 5, 35 (1881).

In our Torts class, we will return often to this question of doctrinal evolution—of how and why legal rules persist, adapt, or unravel. We’ll encounter reasoning that has lost touch with the realities it was meant to govern, as well as doctrines that have proven remarkably durable across centuries of change. Part of the challenge—and the excitement—of studying torts lies in learning to recognize the difference: to see not only what the law is, but what it has been, and what it might become.

The torts adjudicative process forms one of the central venues through which tort law develops and takes shape. The diagram below outlines sketches the life cycle of a torts case. What follows is an introduction to the core phases, concepts, and vocabulary of tort litigation. Included are a number of guiding questions aimed to further develop your understanding of the torts process. While Civil Procedure will take you deeper into many of these topics, this overview covers what you need to know to read and understand the cases we’ll be studying this term in Torts. These concepts appear repeatedly. You cannot do tort law without them.

Investigation

A prospective client walks into a lawyer’s office. They have a story—usually involving some harm and some perceived wrong. The lawyer listens, asks questions, probes. They are conducting a legal diagnosis: Is this an actionable claim? Is there enough here to justify moving forward? That decision rests on both legal doctrine and practical judgment. This phase may take months or a simple phone call. No responsible lawyer will proceed unless there appears to be legal merit. A lawyer would want to know where and when the claim arose to assess an array of jurisdictional issues and to ensure that the claim is not time-barred. Some other core terms you should know about this phase:

• Contingent fees. Tort lawyers often work on a contingency basis—that is, they are paid only if the case is successful. The fee is typically a percentage of the recovery, commonly between 30% and 40%. This practice fits within a broader feature of the American legal system: the general rule against fee-shifting. With few exceptions, each party bears its own legal costs. The losing side does not pay the winner’s attorney’s fees. Importantly, not all areas of law permit contingent fees. Ethical rules prohibit them in certain categories of representation—most notably in criminal and family law. A lawyer may not, for instance, take 40% of a mother’s child support payments as compensation. Such an arrangement would be flatly unethical, regardless of outcome.
• Statutes of limitations. Statutes of limitations are laws enacted by legislatures to impose deadlines on filing legal claims. If the limitations period for battery is ten years, and the plaintiff files suit in year eleven, the defendant can move for dismissal on that basis alone. The claim is time-barred. The plaintiff may still be injured; the facts may still be compelling—but the window to seek legal redress has closed. Why impose such deadlines? The law values finality. Evidence degrades. Memories fade. Legal claims, like milk, have an expiration date. That said, not all tort claims are treated equally. Limitations periods for negligence are generally longer than for intentional torts. Why? Both require the plaintiff to prove causation and damages, but negligence often involves more uncertainty about how the injury occurred or who is legally responsible. As a result, the law gives negligence plaintiffs more time to investigate and build their case. With intentional torts, where the wrong is usually clear and deliberate, the need for a longer window is diminished.

Tort law recognizes three basic categories of money damages. In the investigation stage, plaintiff's attorney would typically consider which of these best fits the complaint:

• Nominal damages. These damages are symbolic—usually $1—awarded to vindicate a legal right even if the plaintiff suffered no actual harm. They are most common in intentional torts, where the wrong itself matters regardless of injury.
• Compensatory damages. These damages aim to make the plaintiff whole. These include both economic losses (such as medical expenses, lost wages, and other out-of-pocket expenses) and non-economic harms (such as pain and suffering). Tangible harms are easier to quantify; intangible harms are more difficult but no less real.
• Punitive damages. These damages are awarded only in cases of especially egregious conduct—typically where the defendant acted with malice, fraud, or conscious disregard of known risks. These damages are not compensatory. They are designed to punish and deter.

A related concept is the "collateral source rule": A plaintiff’s compensation from sources independent of the defendant—such as insurance, workers’ compensation, or disability benefits—does not reduce the amount of damages the defendant must pay. Suppose Taylor is injured in a car accident due to Blake’s negligence. Taylor’s hospital bills are fully covered by her private insurance. At trial, Taylor sues Blake and proves liability. Under the collateral source rule: Taylor can still recover the full amount of medical expenses from Blake, Blake cannot argue that "someone else already paid those bills," and most importantly, the jury is not told that insurance covered the costs. The rule rests on a simple idea: The wrongdoer should not benefit from the fact that the victim had the foresight to buy insurance or was otherwise fortunate. Allowing defendants to offset damages based on third-party payments could reduce their incentive to avoid causing harm. Some states, however, have modified or abolished the rule. For example, some jurisdictions allow courts to reduce a damages award by the amount paid by insurance, especially in medical malpractice or auto accident cases. We will discuss these examples at a later point in the course.

Pleadings

After investigation concludes and counsel determines that the claim has merit, the case enters the pleadings stage. This phase initiates the formal litigation process and involves the exchange of foundational documents that frame the legal dispute. The first filing is the complaint—a concise, formal document that sets out the factual allegations and the legal theory under which the plaintiff seeks relief. It must include “a short and plain statement of the claim showing that the pleader is entitled to relief.” This is not the place for evidentiary detail or rhetorical flourish; the purpose is to place the defendant on notice and to identify a legally cognizable claim.

Vosburg v. Putney—the first case we will read together—offers a classic illustration. A schoolboy, Putney, lightly kicked another boy, Vosburg, in the leg during class. The contact appeared minor but led to serious injury when it aggravated a preexisting condition. The complaint alleged battery, asserting that the contact was intentional and wrongful in the context of a classroom setting. Even though the physical act itself was slight, the legal theory rested on the notion that unconsented bodily contact, when socially inappropriate, may be actionable if it causes harm.

Following the complaint, the defendant files an answer, admitting or denying each allegation. The answer may also raise affirmative defenses, such as consent.

Two pre-trial motions frequently arise at this stage:

• A Motion to Dismiss for Failure to State a Claim (commonly called a Rule 12(b)(6) motion or, historically, a demurrer): argues that even if every factual allegation in the complaint is taken as true, the law offers no basis for relief. The court assumes the facts are accurate and asks whether, as a matter of law, they add up to a legally cognizable claim. This motion tests the legal sufficiency of the plaintiff’s theory, not the truth of their evidence. For example, if a plaintiff alleges that a neighbor glared at them in a menacing way, the court might find that—even if the glare happened exactly as alleged—there’s no cause of action under tort law, since the field does not cover “menacing looks.” Rule 12(b)(6) is thus a procedural gatekeeper, filtering out claims that fail to meet the basic legal architecture of a tort. In short, a motion to dismiss asks, “Even assuming everything the nonmovant says is true, is there a valid legal claim here?”
• Motion for Summary Judgment (under Rule 56 of the Federal Rules of Civil Procedure): The movant asserts that there is no genuine dispute as to any material fact and that they are entitled to judgment as a matter of law. Unlike a motion to dismiss, which is limited to the pleadings, summary judgment allows the court to consider the entire record—including depositions, documents, affidavits, and other discovery materials. While often filed after discovery, a party may move for summary judgment earlier in the case. If the opposing party cannot point to evidence that would allow a reasonable factfinder to rule in their favor, then the case need not proceed to trial. In short, a motion for summary judgement asks, “Based on all the available facts, is there any real dispute that needs a trial to resolve?”

Trial

If the case proceeds to trial, that marks a significant inflection point. The vast majority of tort disputes settle beforehand, and for good reason: litigation is expensive, discovery is burdensome, and trials are both time-consuming and unpredictable. Court dockets are often congested, and cases may take years to reach trial. Still, not all litigants are inclined to compromise. Suppose, then, that both parties are determined to see the case through.

Under the Seventh Amendment to the U.S. Constitution, either party in a federal civil action has the right to demand a jury trial—so long as the underlying claim is one that would historically have been heard at common law (as opposed to equity). Most state constitutions offer a similar guarantee. If either party requests a jury, the case proceeds as a jury trial. If neither does, the case is heard by a judge in what is known as a bench trial. Whether to request a jury involves strategic considerations. Juries are often thought to favor plaintiffs, particularly in cases involving physical injury, emotional harm, or vivid narratives of wrongdoing. Defendants may nonetheless prefer a jury if they believe the local community is likely to sympathize with them—or, conversely, that the plaintiff may come off as litigious or opportunistic

Regardless of the jury question, the burden of proof in a tort case ordinarily rests with the plaintiff, who must establish each element of the claim by a “preponderance of the evidence.” That means just over 50%. The plaintiff must prove “50 and a feather.” A higher burden—“clear and convincing evidence”—applies only in certain exceptional tort claims, outside the scope of the introductory course (e.g. certain cases of defemation and fraud). The criminal standard, "beyond a reasonable doubt," is never applied in Torts. The rationale for this lowered evidentiary standard is straightforward: tort cases usually involve monetary remedies between private parties. They do not threaten liberty in the way criminal cases do, so the evidentiary burden is accordingly lower. Yet because the plaintiff is the party seeking judicial relief, the law places the burden squarely on their shoulders.

The burden may on occasion shift to the defendant—for example, in order to establish any affirmative defenses they have pleaded. An affirmative defense, such as consent, self-defense, or assumption of the risk, does not dispute the facts so much as provide a legal reason why the defendant should not be held liable. The burden of proving such a defense lies with the defendant, again by a preponderance of the evidence.

Two procedural concepts often arise at trial that you should be familiar with:

• General vs. Specific Verdict. A general verdict is what most people imagine a jury delivers: a single decision on who wins and, if applicable, how much is awarded. A special verdict requires the jury to answer a series of written questions on factual issues. The judge then applies the law to the jury’s answers. In reviewing Vosburg v. Putney, ask yourself if this case was one of general or specific verdict.
• Motions in trial.
  • A Motion for a Directed Verdict (MDV)—now known in federal court as a motion for judgment as a matter of law (JMOL)—may be made during trial, typically after the plaintiff rests. The movant argues that no reasonable jury could find in favor of the other side.
  • A renewed MDV or a renewed JMOL (formerly called a JNOV, or judgment notwithstanding the verdict) can be made after the jury has rendered a verdict, asking the judge to overturn the jury’s findings because the evidence could not support them.
  • A Motion for a New Trial may be brought when significant procedural errors, prejudicial rulings, or misconduct occurred that arguably affected the trial’s outcome.

Appeal

Few civil cases reach the appellate stage. When they do, it is because one party believes that a significant legal error occurred at trial. Appeals are not a second chance to reargue the facts. They are limited in scope and focused primarily on errors of law—such as misstatements of the legal standard, improper jury instructions, or improper rulings on the admissibility of evidence.  

In Vosburg v. Putney, the defendant appealed the trial court’s judgment. The appeal did not challenge the jury’s factual findings, but rather raised questions about the governing legal standards—particularly the nature of intent in battery and the extent of liability for unexpected harm. The Wisconsin Supreme Court affirmed the core principles of tort doctrine. First, it clarified that battery does not require intent to cause harm—only intent to make contact that is wrongful under the circumstances. Second, it applied the eggshell skull rule: a defendant who commits a tort takes the plaintiff as he finds him. As you read the decision, try to spot both of these findings. 

What about mistakes of fact? Those are usually unreviewable. Appellate courts generally defer to the trial court’s factual findings and jury verdicts. But there is an exception. In cases where appellate review is sought for decisions about the sufficiency of proof to support a given result or whether a jury verdict is against the weight of the evidence–in these circumstances, the appellate court comes closer to reviewing issues of fact, not just of law.

Nearly every opinion you’ll encounter in this course is the product of appellate review. Courts that hear cases on appeal issue their decisions in the form of written opinions. These opinions shape doctrine, clarify ambiguities, and define the legal boundaries for future disputes.

Settlement

At every point in the litigation process, the parties may choose to settle. And in tort law, they overwhelmingly do. Settlement is the norm, not the exception. It avoids the cost, delay, and uncertainty of trial. It provides closure to the parties and relieves the burden on the courts.  Statistical studies bear this out.

One survey found that nearly 90% of tort cases settle, and only 1% are tried to a jury. See John Barkai & Elizabeth Kent, Let’s Stop Spreading Rumors about Settlement and Litigation: A Comparative Study of Settlement and Litigation in Hawaii Courts, 29 Ohio St. J. Disp. Resol. 85, 110 (2014).  

Why then did Vosburg v. Putney not settle? Think about this question as you read the case. Whatever the reason, however, the case proceeded to trial, then to appeal, and ultimately entered the canon of tort law. It is now commonly taught at every law school in America. Can you imagine what would have happened for classroom instruction if the parties were to settle? From a pedagogical perspective, settlement thus poses a dilemma. It resolves disputes, but it does not generate doctrine. When parties settle, no opinion is written, no precedent is established, and no rule is clarified. Legal education relies on the small subset of cases that are litigated to judgment and then appealed.

In reading Vosburg, you are studying one of those rare cases that went the distance—and, in doing so, helped define what battery means in American tort law. With all of this background, you are now ready to read your very first torts case.

Fun Fact

Justice Lyon “remanded” (sent back) the case to the lower court for a third trial. It never happened. The Vosburgs failed to pay court fees from the first two appeals, and Vosburg’s counsel did not file for a new trial by the deadline.

Guiding Questions

1. What kind of intent did Putney have when he kicked Vosburg? Did he intend to both kick Vosburg’s leg and cause him harm (a “dual intent” to achieve a contact and have it be harmful or offensive), or did he only intend to kick Vosburg’s leg (a “single intent” to just achieve a contact)?
2. According to Justice Lyon, what kind of intent did Putney need to have when he kicked Vosburg in order to be liable for battery? Single intent? Dual intent? Something else entirely?
3. Putney did not foresee that his playful kicking would cause Vosburg the kind of harm that materialized. Under the law, does that matter? Should it?

Test Your Knowledge

Suppose instead that a third schoolboy forcibly grabbed hold of Putney’s foot and bashed it against Vosburg’s leg, and Putney otherwise had no desire whatsoever to touch Vosburg. Would Putney still have the requisite intent for battery?

1. No, because he never intended to kick Vosburg.
2. No, because he never intended to harm Vosburg.
3. Yes, because he intentionally placed himself in a location where that could happen.
4. Yes, but he would have a successful defense due to the third schoolboy's seperate conduct.

Notes and Further Cases

1. Inefficient litigation. Settlement is often better than proceeding to litigation, at least from an economic efficiency standpoint. The Vosburgs' original settlement offer to the Putneys was $700. The Putneys declined the offer and wound up in three different legal actions. The first was a criminal case against little Putney for misdemeanor assault. The trial judge actually found the boy guilty as charged, but the verdict was overturned on appeal. This criminal action is outside the scope of our Torts casebook. The second was this civil case, in which, as our Fun Fact notes, there was no winner. The third was Vosburg's father's seperate civil case for loss of his son's services in the home. The Putneys lost this case and were forced to pay $1,200. So, at the end of the day, the Putneys turned down a $700 settlement fee only to face a $1,200 loss in court plus costs and fees for all three of these proceedings. Taxpayers also lost a lot by the Putney's reluctance to accept the initial offer, as legal proceedings are quite costly. Returning to the original settlement attempts, the Putneys' counter settlement offer to the Vosburgs was $250. The Vosburgs also declined. But although they won the father's civil case for $1,200, after subtracting all the attorney’s fees and court costs from both civil cases, it is unlikely the Vosburgs walked away with more than $250 in net gains, if they broke even at all. In other words, the difference between the parties at settlement was a few hundred dollars, a measly sum compared to the total costs both parties had to pay when it was all over. The trial judge in this civil case was well aware of this inefficiency. At the very first trial, the judge told the jury, “[i]t is a peculiar case, an unfortunate case, a case, I think I am at liberty to say, that ought not to have come into court. The parents of these children ought, in some way, if possible, to have adjusted it between themselves.” Reprinted in Zigurds L. Zile, Vosburg v. Putney: A Centennial Story, 1992 Wis. L. Rev. 877, 918 (1992) (footnote omitted).