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University of Illinois School of Law
Wasserman, Melissa Feeney

Class: Torts I

Professor: Melissa Wasserman

School: University of Illinois College of Law

Spring 2012

I. Intentional Torts

A. Intro:

· What is a tort?

· Tort law governs legal responsibility or “liability,” for wrongs that people inflict on each other by various means: assaults, automobile accidents, professional malpractice etc.

· Tort law is typically common law and state law

· Intentional Torts- deliberate conduct

· Unintentional Torts- accidental conduct

· 2 types of unintentional torts:

· 1. Liability for negligence

· 2. Strict liability- hold someone liable regardless of how carefully it was conducted

· Must do but- for and proximate cause analysis for strict liability.

B. Battery

· Rule (objective):

· 1. Intent to touch

· 2. Touch is unlawful

· 3. Must have actual contact (can also occur if you are 100% that something will happen)

· 4. Has harm occurred?

· No insanity defense (does not negate intent)

· Dangerous test: (objective) if you can argue that your life was in danger, you can get off in these cases.

· Transferred intent: a background battery must be going on.

· Intent and Volition

· What is intent?

· Intent has to be only be an intent to touch when it is against custom or even just unwanted.

· Vosburg v. Putney – L

· Facts: D slightly, but unlawfully, kicked P during school. D did not intent to do any harm to P. Although the kick was slight, P lost the use of his limb because D’s kick revivified a previous injury.

· Liability: Yes. D liable for amputation of P’s leg even though didn’t reasonably foresee this result (eggshell rule)

· Notes:

· Implied license- Has the person implicitly consented to it?

· Kids knew by entering the playground that this could happen

· Foreseeability does not matter.

· Policy: Trying to keep people from unwantingly touching another

· Knight v. Jewett (touch football) – NL

· Facts: Man and woman are playing touch football. Agreed to only touch above the waist with two hands. They collided, she fell down, and he stepped on her hand eventually leading to the amputation of her pinky finger. P claims defendant pushed her. D claims it was accidental.

· Liability: No.

· Notes:

· He did not intend the touch: stepping on finger. Court looks at specific type of touching/contact.

· Plaintiff gave consent to some type of touching: they were playing touch football.

· Implied license by playing game. But did she revoke implied license when she said “stop being so rough or I will not play anymore”?

· White v. University of Idaho (the piano lesson- problem) – L

· Facts: Professor of Music at the University walked up to the P while she was seated and did a piano playing on her back. She ended up being severely injured. She had to have a rib removed.

· Liability: Yes. This is a battery.

· Notes:

· Different from Knight? Yes. Professor intended to touch.

· Objective standard: If a reasonable person thinks its an offensive contact.

· Under Vosberg, foreseeability does not matter.

· If this touching is in the reasonable norms of a piano lesson then it is an extension. If not in the norms of a piano lesson- then not an extension.

· Public Policy: Use the objective standard because it is easier and helps uniformity.

· Restatement 18: Offensive Contact

· 1. An actor is subject to liability to another for 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. an offensive contact with the person of the other directly or indirectly results.

· 2. An act which is not done with the intention stated in Subsection (1, a) does not make the actor liable to the other for a mere offensive contact with the other’s person although the act involves an unreasonable risk of inflicting it and, therefore, would be negligent or reckless if the risk threatened bodily harm.

C. Battery II

· Intent and Volition Cont.

· Polmatier v. Russ (Insanity is no defense to battery) – L

· Facts: Russ opened fire on his father-in-law with a shotgun, killing him. Russ was found in a wooded area two miles away crying and holding the shotgun naked. He claimed that his father-in-law was a spy who planned to kill him.

· Liability: Yes. Insanity is not a defense to battery.

· Notes: Acts were voluntary

· Public Policy: We want to make sure the guardians watch over the insane person so that they do not harm others. If we allowed no liability here, you would invite others to pretend they’re insane to avoid paying.

· Laidlaw v. Sage (When you rightfully are fearful for your life, then you are not held liable) – NL

· Facts: Norcross walks into a building with a bag full of dynamite and demands money from Sage via a letter. Sage read the letter and slowly move the clerk in front of himself blocking himself from a possible blast.

· Liability: No.

· Notes:

· Heat of the moment while facing death- NL

· Danger was imminent.

· Public Policy: No person can be reasonably expected to do anything else in his position.

· Keel v. Hainline (transferred intent) – L

· Facts: Girl sitting in classroom was hit by an eraser in the face while boys were throwing erasers, it broke her glasses, and she lost her eye. Boys did not intend for the harm to occur.

· Liability: Yes. Boys intended the battery on each other.

· Notes:

· There must be a background battery- even if they consented to the activity/risk

· Liability for boy who threw the eraser and several others involved in the eraser fight.

· Hypo:

· A & B are throwing an eraser, A

nduct are reasonably understood by another to be intended as consent, they constitute apparent consent and are as effective as consent in fact.

· Comment c: Apparent consent: Even when the person concerned does not in fact agree to the conduct of the other, his words or acts or even his inaction may manifest a consent that will justify the other in acting in reliance upon them. This is true when the words or acts or silence and inaction, would be understood by a reasonable person as intended to indicate consent and they are in fact so understood by the other.

· Illustration 3: A, a young man, is alone with B, a girl, in the moonlight A proposes to kiss B. Although inwardly objecting, B says nothing and neither resists nor protests by any word or gesture. A kisses B. A is not liable to B.

· Illustration 4: In the course of a quarrel, A threatens to punch B in the nose. B says nothing but stands his ground. A punches B in the nose. A is not justified upon the basis of apparent consent.

· Restatement 892A: Effect of Consent

· Illustration 5: In a friendly test of strength, A permits B to punch him in the chest as hard as he can. B does so. Unknown to either A or B, A has a defective heart and as a result of the blow he drops dead. A’s consent is effective to bar recovery for his death.

· Illustration 6: The same facts as in Illustration 5 execpt that, without any intent or negligence on the part of B, A is knocked over against his valuable vase, which is shattered. Same result.

· Illustration 9: A consents to a fight with B. Unknown to A, B uses a set of brass knuckles. B hits A in the nose, inflicting exactly the same harm as if he had used his fist. A’s consent is not effective to bar his recovery. (See Grabowski)

· Neal v. Neal (frontiers of liability- outlier- problem) – L

· Facts: Woman had sex with her husband and then found out he was having an affair.

· Liability: Yes.

· Notes:

· Based claim on fact that she would not have had sex with him if she had known of ongoing affair. Consent was fraudulently induced.

· Consent through fraud: battery

· Many courts see that the cheating as collateral to the consent to have sex with the husband

· Could be NL because consent was apparent

· Public Policy: Letting a battery go this far may interfere with marriage, divorce law.