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John Marshall Law School, Chicago
Schwartz, Glenn P.

– Holden v Walmart Stores, Inc. 259 Neb 78, 608 NW2d 187 (2000) -Π stepped on hole in parking lot – requiring total knee replacement – Prior to incident Π had history of knee problems, experts said that it just sped up time for replacement – for Π, won 60/40
· Compensatory v Punitive Damages – punitive only awarded w/malicious or willful or wanton behavior, compensatory can be small if find fault in Π
· Additur – demand ∆ to come up with more $ or say grant new trial
· Remittitur – court lowers amount or will say new trial for Π
· Contingent fees – if Π loses – no fees, no compensation, only if win
· Compensatory damages measured by Π losses, NOT by the degree of ∆ fault
II. Trial Procedure in Torts cases
– key terms to know
– Motion to Dismiss or Demurrer
· effect – take all the facts stated in the complaint as if they were proved, even so, they do not show a valid legal claim
· becomes then an issue of law since no facts are in dispute
· comes along early stage – before answer is filed or along with the answer to complaint – comes before any time has been invested in developing proof or calling a jury
– Motion for Summary Judgment
· shows new facts in addition to those stated in the complaint and perhaps in contradiction to them
· shows there is no real dispute about these new facts
· shows that on these new facts, the law compels judgment for the moving party
· usually made by ∆, attempts to determine the lawsuit without a jury
· only occurs when there is no dispute in facts
– Motion for Directed Verdict
· ∆ usually moves for a directed verdict at the end of the Π’s evidence and again after ∆’s evidence is completed
· enter judgment as “matter of law”
· judge considers evidence in most favorable light to Π
· similar to the above motions but it is based on the evidence produced in full at the trial
– The Motion N.O.V – notwithstanding the verdict)
· asserts that evidence is not legally sufficient to justify a jury verdict for the Π
· a judge who didn’t grant a directed verdict prior to the jury may grant a N.O.V. afterwards
· “last attempt” for defense – it works as “should have granted directed verdict”


– Π bears the burden of proof on each element
– Restatements – an actor commits a battery if: a – he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and b – a harmful (or offensive) contact with the person of the other directly or indirectly results
1 – intent required – to make harmful or offensive contact
2 – result required – harm or offensive contact
– Van Cam

e part of the actor that such contact is substantially certain to be produced
· It is not enough that the act itself is intentionally done and this, even though the actor realizes or should realize that is contains a very grave risk of bringing about the contact or apprehension. Such realization may make the actor’s conduct negligent or even reckless but unless he realizes the result, the actor has not that intention which is necessary to make him liable under the rule states in this section
– Hall v McBryde (Colo. App. 1996) – ∆ went home to pick up some items, found gun underneath a mattress – other youths approached ∆’s house and began shooting – ∆ shot back – one of the bullets hit Π – neighbor to ∆ – Π suffered abdominal injury – FOR Π, back to court to determine whose bullet struck Π
· Intent element can be satisfied by – if their intent is to cause apprehensions of intent or contact OR if 3rd party is injured resulting from above, actor can be found liable
· Transfer Intent – 1) transfer from one tort to another or 2) transfer of identity – “tried for one but hit another”