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Southern Illinois University School of Law
Kelley, Patrick J.

Professor Patrick Kelley


Fall 2011


Different kinds of tickets and had to allege certain things that would establish interest to the king. I

Form of action: What had to be alleged in order to receive a writ. Different forms for the various different writs. Formula to plead.

Trespass: vi et armis (with force and arms), contra pacem Regis (did beat P and hurt him with stick and staves). Trespass first writ to be recognized.

Trespass on the Case: didn’t have to plead like trespass above. Action or inaction of D and circumstances, D wronged plaintiff. P plead facts that established the wrong (“trespass”). Trespass- means a wrong. Additional circumstances that make it a wrong. Difference was whether you could fit your claim in the formula of trespass or plead under case.

Holdings: Rule of law that was necessary for the court to resolve the procedural question before it the way it resolved it based on the facts the court assumed to be true.

How Pleadings Worked:

– Pleadings filed at Westminster. Judges could only decide questions of law and end it right there. If question of fact, case sent back to county for trial by judge or jury (nisi prius).

– P initial pleading set out facts to get writ (Declaration or Narratio)

– Defendant could respond in several ways

o Demurrer: so what? Facts are true, but disagree that those facts establish a legal claim against D. Case at issue when plaintiff demurred. Issue of law. No question of fact, but legal question of whether facts at declaration are enough to establish a case under the law.

o Plea

§ General issue: denies all facts (not guilty). At issue because all facts are at issue and will be sent out to jury to decide which facts or true and which are not. Traverse or denial.

§ Common traverse: denied one or limited number of facts. Case at issue on facts.

§ Special Traverse: Defendant admits all facts, but alleges additional facts by way of defense. Plaintiff needs to respond to additional facts.

– If D plead Special Traverse, went back to P for response

o Demurr: So what? Doesn’t provide adequate defense to my claim.

o Replication (Treverse: deny facts or Replication: add more facts)

Summary of 1st Chapter:

– Procedural questions and holdings (know what holding is). Holding: General rule of law necessary for the court to resolve the procedural question the way it did based on the facts that the court assumed to be true.

– Procedural questions at the pleading stage

o P complaint and D demurs, motion to dismiss on failure to state a claim on which relief can be granted. (assumes P’s evidence is true).

o Affirmative defense by D and P demurs, motion to strike D’s defense because it doesn’t provide a defense to P’s claims. (assumes P’s and D’s facts)

– Trial court err in giving instructions

o An accurate statement in the law that applies to the case.

o Jury instructions changed into holdings.

– Granting or denying a motion for directed verdict

o Based on accommodation of two concerns (right to trial by jury, and authority of judge to determine what law is to be applied to this particular case).

o Formula: court assumes as true, all facts that a reasonable person would assume as true in favor of the non-moving party.

– Manifest weight of the evidence by 1st appellate court

o Facts that are contrary to manifest weight of evidence which would prejudice the jury, then new trial ordered.

History of Modern 3 part division of Torts

– Old forms of action: trespass and trespass on case.

– William vs. Holland and Brown v. Kendall emptied significance of those two.

– New form was intent vs. unintended but wrongful harm, wrongful conduct of some other sort

– These became categories which were divided up.

o Intent

o Negligence

o Miscellaneous

§ Strict Liability (Harper’s Casebook in 1933)- dangerous activity, enterprise liability.

Set of Reasons for Tort Liability (Why impose liability in torts? Why grant recovery?)

– Punish wrongdoers

– Compensate innocent injured

– Deter harmful conduct

– Adopt a rule that is easily applied

– Keep the peace by providing alternative to revenge

– Redress private injustice

– Spread loss

– Enterprise liability


Elements of Recoverable Damages, Personal Injury Claim (catalog of recoverable damages):

(1) Past medical expenses

(2) Future medical expenses

(3) Past lost wages

(4) Future lost wages (loss of earning capacity)

(5) Part physical and mental pain (pain and suffering)

(6) Future physical and mental pain

(7) Permanent disability

(8) Permanent disfigurement

(9) Other economic losses caused by injury (i.e. taxi cabs because can’t drive)

Examples of how seriously an individual can be injured by wrongdoing of others.

Old forms of damage:

I. General Damages: Harm or loss which are a natural consequence of the injury (pain and suffering). Damages could be recovered without specially pleading them, injury enough to prove general damages. 5, 6, 7, 8 are general damages.

II. Special Damages: Awarded for all other harms and losses. These had to be specially pleaded (medical expenses, lost wages, and damages for unusual effects of the injury). 1, 2

e is held liable for reasonable foreseeable consequences though the exact harm was not contemplated (Spivey hugged someone which caused her to become paralyzed).

Why hold children, mentally ill, and reasonably mistaken person liable for intentional torts? D is mentally ill, paranoid person and is on the street. He thinks that P is trying to kill him with a knife which he does not. D shoots P in reasonable self-defense, because he thinks that P is going to kill him.

Interacting with D on assumption that D is going to follow the social rule (private injustice).

Still have legitimate expectations of conduct even with kids and mental ill.

Parents are not liable for the torts of their children (so don’t have to pay for their children). Only be an incentive to sue if child has money of his own or if parent’s insurance would cover injury.

Reason that mentally ill hypo changed because P had no notion that D was mentally ill and had no idea that he was at risk. Interacted with D due to social standards.

Intentional attack on care giver assigned to violent patients, may not be held liable for injuries. Caregivers do not have any reasonable expectation that patients will not attack them. Private injustice would not apply to narrow holding (Note 4, p.27)

Transferred Intent: If intend to do one of the intentional torts and accidentally hurt someone else, intent transfers. As if intended to hurt the thing you actually hurt. Intent transfers to complete tort. It applies whenever both the tort intended and the resulting harm fall within the scope of the old action of trespass, where both involve direct and immediate application of force to the person or to tangible property. There are five torts that fell within the trespass writ; battery, assault, false imprisonment, trespasses to land, and trespass to chattels. When the D intends any one of the five, and accidentally accomplishes any one of the five, the doctrine applies and the D is liable. (In Talmage, man threw stick at one boy, but hit the other. If D intended to cause harm to a person and used excessive force in the process, then D is liable for an injury that resulted to another person than was intended.)