Select Page

Southern Illinois University School of Law
Kelley, Patrick J.

Prof. Kelley
Fall 2007
I. History
II. Damages
III. Intentional Torts
Other Intentional Torts
Defenses to Intentional Torts
IV. Negligence
V. Duty
VI. Breach
VII. Cause
VIII. Proximate Cause
IX. Limited Duty
X. Joint & Several Tortfeasors
XI. Defenses
XII. Strict Liability
XIIII. Products Liability
1.         History
A.             Major purposes of tort law:
1.        To provide a peaceful means for adjusting the rights of parties who might otherwise “take the law into their own hands,”
2.        To deter wrongful conduct
3.        To encourage socially responsible behavior
4.        To restore injured parties to their original condition, insofar as the law can do this, by compensating them for their injury.
B.              Historical origins
1.        Liability based on “actual intent and actual personal culpability.”
2.        Started by imposing liability on those who caused physical harm, gradually toward moral standards as basis of liability
3.        To keep peace; “the law doth not so much regard the intent of the actor, as the loss and damage of the party suffering.”(1681)
C.              Forms of Action:
1.        Writ of Trespass – An unlawful act committed against the person or property of another, esp., wrongful entry on to another’s real property. 2. At common law, a legal action for injuries resulting from an unlawful act of this kind.
a.   Distinction: Plead a formula
2.        Writ of Trespass on the Case – At common law, an action to recover damages that are not the result of a wrongful act but rather a later consequence. This action was the precursor to a variety of modern day tort claims, including negligence, nuisance and business torts.
a.   Weaver v. Ward (1616)
a.        ROL: Lack of intent to hit or hurt the P is not a valid defense to a trespass action.
b.   Anonymous “Case of the Thorns” (1466)
ROL: Liability is not based on fault, just that the D acted and caused injury. Suggests a Rule of Strict Liability in Trespass.
Strict Liability – Liability that does not depend on actual negligence or intent to harm, but that is based on the breach of an absolute duty to make something safe)
D.             Re-categorize Trespass and Case
1.        The old pleading distinction between Trespass and Case disappeared. Prior to Brown v. Kendall, the P did not have to prove the plea.
a.   Trespass – Intent (just plea the formula)
b.   Case – Negligence (plead the fact and establish PFC)
§     If the act was unintentional, and done in the doing of a lawful act, then the D was not liable.
A.      Brown v. Kendall (1850)-Holdings:
1.        In an action of Trespass for lawful conduct of the D causing a direct but unintended hitting of the plaintiff the defendant is liable if he failed to exercise ordinary care and the plaintiff exercised ordinary care.
2.        Standard of care required that the defendant must avoid liability does not differ depending on whether the D had a legal duty to act. (ordinary care – 2nd is just a corollary of the first)
3.        In an action of lawful conduct of the D causing a direct but intended hitting of the P, the P must bear the burden of proving the D failed to act with ordinary care under the circ

n and suffering
b.   Permanent disability and disfigurement
3.        “Specials”- in modem lawyer talk the term refers to “out-of-pocket” expenses (past medical expenses and lost wages-not future medical expenses and loss of earning capacity)
4.        Maximum recovery rule: Procedural process by which an excessive verdict of the jury is reduced, if applicable.
5.        Remittitur – a motion for a new trial on grounds that the jury’s award of damages is so excessive that it indicates “passion, prejudice or error.”
a.   Anderson v. Sears, Roebuck & Co., 377 S. Supp. 136 (1974)
F: Small child severely burned by defective heater.
ROL: By totaling the estimated maximum recovery for each element of damages, the jury’s actual award is placed in proper perspective. (does not violate max. recovery rule)
b.   Richardson v. Chapman, 175 Ill. 2d 98, 676 N.E.2d 621 (1997)
F: Young flight attendant rendered quadraplegic in accident where driver of semi truck was negligent. Ct. reduced her award by $1 million; reduced her friend’s by $50K.
Rule of Law: An award of damages will be deemed excessive if it falls outside the range of fair and reasonable compensation or results from passion or prejudice, or if it is so large that it “shocks the judicial conscience.”
See Note #1 p22 for other examples