Select Page

John Marshall Law School, Chicago
Bernabe, Alberto


I. Introduction

A. Tots, the goal of tort law and the theories of liability

(1) Brown v. Kendall—broke up dog fight…should there be liability without intention?
–Difference between trespass & battery—for battery a plaintiff must prove intent or fault for defendant
–Defendant wants to show that conduct was a necessity and therefore he should not be liable; plaintiff wants to show that it was a choice and that he did not use reasonable care so that he is liable

(2) Spano v. Perini—blasting case which caused prop damage…court followed strict liability rule….even without any showing of negligence…..defendants should bear cost of damage b/c they set the events that caused it in motion

B. The concept of Damages

DAMAGES: must prove damages for cause of action for negligence and strict liability

**Types of Damages:
1. Nominal: small sum awarded to PL to vindicate rights, make judgment matter of record, and carry costs of action

2. Compensatory: closest possible equivalent to loss suffered; make PL whole

3. Punitive: Additional sum over & above compensation to punish defendant
**judicial review only if “shocks the conscience”

–Evidence of Damages: use “Demonstrative Evidence” or tangible items; (charts, photos, videos, etc) to bring home extent of injury; often use expert

4. Personal Injury Damages:
a) Special: lost earnings and medical and other expenses
b) General: pain & suffering and emotional distress

5. Medical Damages: past bills, future (using expert testimony)

6. Lost Wages: calculate actual wages or replacement care….if permanent injury calculate for loss earning capacity

**Damage Calculation: inflation included; punitive damages taxed others are not; no interest until verdict reached…..pain/suffering, etc. up to jury to decide amount….usually capped by legislatur
**Damages to Property: highest price that could be realized wholesale at that or nearest market plus transportation costs at that time

II. Liability for damages caused by intentional conduct

A. The concept of intent

**INTENT: defendant acted with desire to cause result OR with knowledge to a substantial certainty that result would occur

1. Garratt v. Dailey—5 year old moving chair—court said that if plaintiff could prove that the kid intended to or knew with substantial certainty that she would fall….he was guilty of battery… noted that it was a SUBJECTIVE standard depending on that defendant

2. Talmage v. Smith—threw rock at kid on shed and hit another—court ruled that if you can prove that defendant had intent to hit one boy but hit another he is still liable b/c of TRANSFERRED INTENT (which is available for as

e extreme and outrageous (3) must be a causal connection between wrongful conduct and ED (4) ED must be SEVERE

Level of Injury ONLY MATTERS FOR THIS TORT…..must be “severe” to recover AT ALL…..usually level of injury just goes to amount

b) Taylor v. Vallelunga—daughter witnesses dad get beat up and wants IIED—court rules that for IIED you need to prove intent as well—for purpose of causing emotional distress or with knowledge that it is substantially certain it would… this case defendants didn’t know she was daughter or that she was there

4. False Imprisonment: confining to room, cop car, retirement home, w/physical force, threats, results of action taken against another OR property

a) Big Town Nursing Home, Inc v. Newman—defendants didn’t allow plaintiff to leave nursing home—court noted that the direct restraint of one person of the physical liberty of another without adequate legal justification

b) Parvi v. City of Kingston—police would not let plaintiff out of car until far away from city and he was then hit by car…..plaintiff couldn’t remember