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Torts
University of Illinois School of Law
Wasserman, Melissa Feeney

Torts Outline | Spring 2012 | Prof. Wasserman
Thursday, January 05, 2012
9:44 AM

·         Types of torts
o    Intentional torts
·         deliberate
o    Unintentional tort
·         Accidental
·         Subcategories
§  Liable for negligence
§  Liable for strict liability
·         Regardless of fault/care

·         Intentional Torts
o    Prima Facie Case
o    Each intentional tort has distinct prima facie case
·         Consists of certain things (elements of claim) that P must allege and then prove
·         D can respond to it by denying or raising affirmative defense to undercut P's case

Battery
Elements
Intent to touch, where the touch is unlawful or offensive (to reasonable person)
·         Don't need intent to cause harm
·         D's motive is irrelevant
·         However, if this was customary or implied license was given/applied, no battery
·         No exception for insanity when determining intent
·         Dangerous test says if you can argue pressing danger, it is involuntary action so didn't have requisite intent to touch
·         Action must be VOLUNTARY
·         Transferred intent
·         Your intent to hit someone is transferred
·         Need background battery to be happening
·         Even the party encourage/aiding behavior can be liable (AKA extra transferred intent)
Actual contact with person
·         D doesn't have to be present at time of contact
·         Contact extended to include objects intimately associated with the  victim's body
3.       Harm must result from the touch
·         The contact must offend a reasonable sense of personal dignity
·         Harm is likely going to occur
·         If indirect contact,  has to be 100% to occur that harm will occur
·         Thin-skull rule
·         Liable for all damages that flow from it

·         Cases
o    Vosburg v. Putney (boy kicks another student in class)
·         Holding: battery
·         Court says touch or contact must be unlawful/offensive
§ Recess was over, in classroom
§ On playground, implied license
·         Implicit consent to certain conduct/actions
·         What reasonable person would expect and think (kicking not reasonable)
·         You don't want to violate pre-existing dignity (other type of hurting)
·         Damages
§ Should it be limited to what is reasonably foreseeable
§ Thin-skull rule
·         Liable for all damages that flow from it
§ Deterrence rationale has pro/cons

o    Knight v. Jewett (touch football in backyard, guy steps on fingers)
·         Holding: No battery
·         Court says D didn't intend to touch
·         Can analogize to Vosburg (implied license)
§  Could argue P gave implicit consent
§  Fact she said stop and still played, took license away
·         Perhaps court was looking at specific act that caused injury
·         No battery

o    White v. University of Idaho (piano teacher touches students back, harm occured)
·         Holding: Battery
·         Elements
§  Intent to touch
·         yes
§  Touch is unlawful/offensive
·         P found it offensive, would not have consented
§  Harm actually occurred and she found it offense
§  Objective person (reasonable person)
·         Subjective (plaintiff's view)
·         This is harder, you have to put yourself in their shoes (all their traits)
·         More fraud, harder to administer
·         Possibility of more frivolous lawsuits
§  Defendant's motive is irrelevant
·         Doesn’t matter if he was in love with her
·         If however, if in relationship and this was custom, then no battery
·         If she fell over dead, yes battery. Responsible for all the consequences/harm related to touch

o    Russ Case (shot father in law for thinking he was spy)
o    No criminal liability (by reason of insanity)
o    Still civil liability (holding: battery)
·         No exception for insanity when determining intent
·         Insane person can make a choice between acting or not
·         Policy reason: want to give guardians of insane the right incentive to watch over them and not cause harm
o    Defendant is arguing is insane and therefore not voluntary
·         Court doesn't argue with D
·         Court says reflexive reaction would be excuse for not having requisite intent
·         Doesn't have to be rational
o    Hypo
·         What if he thought he can bend bullet (and intent)
§  Still battery (objective standard says we know for sure can't bend bullet)
§  Can argue no battery since he had no intent for bullet to hit anyone

o    The Sage Case (bomber comes in and D uses clerk as human shield)
o    Holding: Appeal court said/held not battery
·         First law of nature
§  You're going to protect yourself under imminent danger
§  This is considered not voluntary action (it was in heat of moment)
o    Objective vs. subjective threat
o    Policy rationale for Russ not in play here
·         Also Russ saw no immediate danger
o    Dangerous test is objective
·         If you can argue pressing danger, involuntary action so didn't have requisite intent to touch clerk
o    Two types of battery
o    Touch and moved clerk
o    Explosion
·         Dynamite makes contact (essentially chair example)
·         Sage

(objective test)
·         Was there actual channel of infection (court says NO)
o    No offensive contact (actual)
·         As opposed to possible (potential exposure)
o    Public Policy – beliefs and what do doctors have to disclose
§  Don’t want to discriminate
o    ID vs. condition of doctor (compare to ghost surgery case)
·         Administrative issues
·         Fraud, etc.
o    Objective test is reasonable test, not average person
·         Reasonable person knows how things occur
§  Like in this case, how HIV is transmitted

Neal Case (sleeping with unfaithful husband)
·         Holding:no battery
·         Essence of contact
·         She's saying consenting to faithful husband
·         Not so much act but characteristic of person
·         Courts let it go to trial (probably an outlier)
·         Consent through fraud is no consent (still battery)
·         Collateral consent (sex with faithful husband)
·         Does fraud go to collateral or actual contact
§  In sex cases. Goes to collateral usually
·         You don't want to interfere with other law


Trespass
Key points
Intentionally entering someone else's property without consent
·         1-intentional, 2-entry, 3-land/property of another
·         Third party/object could do this too
·         You intend to enter land
You're protecting the interest/dignity of the land
·         Liable for any resulting harms/consequences that transpire from your trespassing
·         Accidental intrusion has no liability

Cases
·         Desnick (camera in eye centers)
o    Holding: Ultimately decides no trespass
o    Consent by fraud is usually no consent
·   This court goes against general rule
·   Analogies
§  Restaurant critics
·         Want patrons, money
§  Prostitute paid fake 100 dollar bill
·         Wants sex, collateral is money
·   How to distinguish
§  Interest you're trying to protect
·         Battery, the person
·         Trespass, the land
§  Open to public
§  No disruption, violation, interference, etc.