Select Page

University of Illinois School of Law
Hurd, Heidi M.

Spring 2014 University of Illinois

Tort – a civil wrong committed by one person against another AND action arising outside of any agreement.
·         3 categories/types of torts
1.       Intentional Tort – D desires to bring about a particular result
a.       Battery
b.      Assault
c.       False Imprisonment
d.      Infliction of Mental Distress
2.       Negligence – D did not intend to bring about a certain result, but has merely behaved carelessly. There are no individually-named torts in negligence, just the general concept of “negligence.”
3.       Strict Liability – D is liable even though he/she did not intend to bring about the undesirable result, and even though he/she behaved with utmost carefulness
a.       Wild/Dangerous Animals
b.      Abnormally dangerous/Ultra hazardous activities (i.e. blasting)
c.       Selling of a defective product which causes personal injury or property damage
d.      Sometimes workers comp/employees on the job injuries
o   Why categories?
§  Determines
·         (1) Scope of Liability – each category differs concerning D’s liability for far-reaching, unexpected, consequences. The more culpable D’s conduct, the more far-reaching his liability for unexpected consequences. Intentional tortfeasors are liable for a wider range of unexpected consequences than is a negligent tortfeasors.
·         (2) Damages – measure of damages is broader for the more culpable categories. Higher culpability equates to a higher chance of paying punitive damages

Intentional Torts
·         Intent is…
o   Rst §8 Intent – to denote that the actor desires to cause consequences of his act, or that he believes that the consequences are substantially certain to result from it.
o   Part of PF Case
§  1. Voluntary tortious act – harmful/offensive contact
§  2. Wrongful intention
·         MUST intend (contact) à Harmful/Offensive (damaging à reasonable sense of dignity)
o   Transferred intent: if D held the “necessary intent” with respect to person A, he will be held to have committed an intentional tort against any other person who happens to be injured.
o   Degrees of intention
o    Intentional Purpose: to commit tort
o    Mediate Purpose: ultimate intent requires tort
o    Substantial Certainty/Knowledge of an ultimate tort
·         Garrat v. Dailey – case where an adult woman is suing a 5.9 yr. old boy for moving a chair which caused her fractured hip. Issue of “substantial certainty.”
o    Recklessness: substantial & unjustifiable risk that one is consciously aware of
·         Criminal Law: willful blindness regarding a circumstantial element and you do not “look” it counts as knowledge (NOT the case in Torts)
o    Negligence (includes recklessness)
o    Due Care but fails to prevent tort (only liable on strict liability)
Battery…(trespass to the person)

PF = Intend by purpose/knowledge (contact w/ any person) that leads to H/O; one has to believe that there is a substantial certainty.

Rst§13 Battery: Harmful Contact – an actor is subject to liability to another for battery if (a) he acts intending to cause H/O contact with the person of the other or a third person, or an imminent apprehension of such a contact AND (b) a harmful contact with the person of the other directly/indirectly results.
Did D intend (contact) à H/O with P, P’s personal effects or someone else?
–          YES: Does D have a legit defense (consent/self-defense/defense to property/recapture of chattels/necessity/insanity)?
o   NO: liable (calculate damages)
o   YES: no battery
o   NO: Did D know with substantial certainty (high likelihood is merely reckless NOT intentional) that a harmful or offensive bodily contact would occur as a result of his actions? (subjective test of Garrat)
o   YES: H/O contact?
§  YES: defense?
·         NO: liable (calculate damages)
§  NO: no battery
o   NO: Intend to instill an apprehension of imminent bodily contact?
§  YES: H/O contact?
·         YES (i.e. intend to miss but scare): defense?
o   NO: liable (calculate damages)
·         NO: no battery
Calculating Damages…
o   Punitive…if D’s conduct was outrageous and malicious
o   Compensatory…if P suffered physical injury or mental sufferings
o   Nominal…if neither punitive or compensatory damages apply.
Vosburg v. Putney [4] In an action to recover damages for an alleged assault & battery, the victim must only show either that the alleged wrongdoer had an unlawful intention to produce harms (i.e. an unlawful intention in committing the act which occurred) OR that he committed an unlawful act.
–          P need NOT be aware of the contact at the time it occurs (kiss while sleeping, etc.)
–          Battery IF contact is beyond level consented to (sporting event/medical procedure)
Actus Reus of Battery (What is H/O?)
–          Objective approach – reasonable person test; would an ordinary person of average sensibilities would be legitimately in possession of a complaint of a rights violation
o   De minimus
–          Subjective approach – H/O to plaintiff? If you touch someone, you do so at their peril and if they are uniquely sensitive you pay the consequence; regardless of other people
o   Consent/permission given is a defense/indication that they did not find contact H/O
o   Nonconsensual/Unconsented to Contact = Battery
§  Implication is that the Plaintiff now has to bear the burden of proving the absence of consent on his/her part under prima facie case
·         Why?
o   Moral psychology for the law; by making it a defense the law says “don't touch” if it is included in the actus reus the law says “touch away”
o   Is it harder to prove/disprove consent has happened?
§  Harder to disprove or prove a negative; actions/words leave trails & evidence

? Battery Hypo – Instances when construction contractors are aware that a certain # of workers WILL get injured/harmed during the course of a high rise build – can a prima facie case be established?
Does the company take due care through safety precautions?
Statistical knowledge to a specific person is NOT required – only “a person” through transferred intent (transferred intent only applies to intentional purpose NOT knowledge).
What is “substantial certainty”?
Garrat – case where an adult woman is suing a young boy for moving a chair which caused her fractured hip
***substantial certainty – knew the particular person his/her actions would effect
Defense of con

ely allows excuses; D should bear the loss to compensate not P
Consent: affirmative justification given to defeat the claim that P has been harmed

MUST consent (scope of contact)
–          WITH capacity (i.e. incapable if child/intoxicated/unconscious)

1.       Actual Express Consent: clear verbal/physical communication (i.e. “go ahead hit me”)
2.       Actual Implied-in-fact consent: “yes” would have been answered if asked explicitly; implied from ….
a.       Obrien case: physical behavior implies yes; immunization of immigrants
b.      Silence as acceptance
c.       Rules of the game/environment
d.      Actual contemplation in one’s head w/o expressly saying it
3.       EXCEPTION -Implied-in-law consent: in emergency situations/circumstances, consenting person is NOT capable of providing express/implied consent
4.       Substituted consent: authority given to an individual to make medical decisions on another’s behalf; usually for those of incompetence; very rarely used for competent individuals; power of attorney can be used.
–          Majority – Consent is NOT a defense to a crime (Kevorkian)
–          Moral transformance (boxing/fighting, sexual harassment/courting)
–          Removes the nature of the contact (H/O)

Mohr v. Williams If the D's actions exceed the consent given and he does a substantially different act than the one authorized, he is liable (i.e. surgery on the wrong ear).

Available responses to a D’s claim of “consent”
–          Scope claim – D’s act outside scope of consent
–          Duress – consent induced by duress; simply submission to threat
–          Incapacity – youth, intoxication & mental incapacitation (rape for underage people; person accepting consent does NOT have to know of condition
–          Mistake/Fraud
o   Mistaken as to the nature/quality
o   D knew/should have known of mistake (i.e. Fraud)
o   P would not consent absent mistake (i.e. no harm no foul)
–          Collateral Mistake Doctrine – mistake is collateral to the mistake in question; will not defeat defense of consent (rejoinder)
–          Consent Illegal – Hudson Case

Hudson v. Craft (Majority Rule) where a P consent is illegal (consent to an illegal act such as prize fighting) that consent is ineffective; illegal consent is NO consent at all; public policy does NOT want breach of peace.
–          (Minority Rule) illegal consent is GOOD consent; you may not be able to consent to crime, so you might be liable under criminal law, but you cannot sue (unless protected class exception such as statutory rape)