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University of Illinois School of Law
Wexler, Lesley M.

Torts Wexler Spring 2014

Physical and Mental Harms

· Physical Harm

o Trespass to person and land

· Tort system is not about redistributing wealth

· Vosburg v Putney

o 11 yr old def lightly kicks 14 yr old plaintiff; plaintiff had weak bones; plaintiff got severely injured as a result;

§ negative inference: nothing else could have caused injury

o why sue 11 yr old?

§ vicarious liability, future money, insurance, trust fund, spiteful plaintiff, ruin def reputation, other

o no all law suits are worth it; even if they are for sure winners


§ the wrong doer is liable for all injuries resulting directly from the wrongful act whether they could or could not have been foreseen


§ The act was a violation of the order and decorum of the school

§ Other questionable considerations in this case (wealth of parties)


§ Def is liable

· Transferred intent

o Aim to hit person A, but actually hit B

§ There was no intent to hit B

o Still liable

o We want to deter bad behavior

· Contributory negligence is not a defense to intentional torts

· Battery

o Intentional infliction of a harmful bodily contact upon another

o Restatemtn 2nd Torts

§ Battery if:

· 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

· a harmful contact with the person of the other directly or indirectly results

o Restatement 3rd

§ Intent:

· Purpose of producing that consequence

· Knowing that the consequence is substantially certain to result


o Battery?

§ Should it be just non consensual or does it have to harmful or offensive?

o Majority

§ Person commits battery if he acts intending to cause or substantially sure physical harm will occur

o Minority

§ Non consensual touching

o Intent

§ Always important consideration for batteries

§ Does not matter if intent is “evil” or not

§ “spirit of pleasentry” can still be battery in some jurisdictions

· non conseual touching in a pleasant way (hug, hi five, pat on back, etc.)

o Emergency/hospital situations

§ in modern hospital settings surgeons could no longer turn to guidance of family members

· exception: minors and incompetents (then need family consent in pretty much every situation)

§ Ex: in middle of surgery doctor can make decisions if there is not way to get consent and/or it is an emergency

§ Ex: if it is a smaller emergency (like operating on a different ear) then need to get consent (mohr v Williams)

· Most modern cases are less rigid than this

§ General rule:

· Doctor can use professional judgment and change his plan during surgery as long as patient and no one else can give consent immediately

o Ambiguous consent

§ Patient says “don’t do it” but then signs waiver saying “its ok to do it”

§ Consent form supersedes (hoofnel)

§ We want to make contracts binding

§ Contracts can change the scope of consent

· Statutory rape

o Majority view: no recovery

o Minority view: sometimes recovery; depends on how manipulative or vulnerable

· Hudson v Craft

o Plaintiff agreed to fight in an illegal boxing match; he got seriously hurt; sued promoter

o rule (not used):

§ The willing suffer no injury

o Not used because of exceptions to the rule

§ Exceptions: a particular type of protected person’s assent is not a consent



Other boxer


Majority view (Hudson, restatement 61 exception)

1. fighter consent irrelevant

2. strict liability because no license plus violated criminal statute to protect class of boxers

Majority view (teeters)

1. fighter consent irrelevant

2. each boxer may recover from the other for harms

Not liable

Minority view (rest. 60)

1. fighter consent relevant

2. promoters liability is conditioned on boxers liability

Minority view (hart, rest. 60)

1. fighter consent relevant

2. dirty hands- neither boxer may recover from the other


§ Promoter is liable; consent of fighters does not relieve him

§ It is ok to bring a 3rd party for statutory violations into the claim

· lying in battery

o there is a difference between someone who lies and someone who just doesn’t say

§ liars are more likely to be punished

§ courts have a hard time ruling on the “silent” person

o Ex: person A lies and says he love person B to have sex

§ the lie was not about the sex; the lie was not about the touching

§ not liable for battery

· fraud in the factum

o lie about the tool used for sex

o most likely guilty

· injury

does not have a duty to rescue

o Holding

§ Defendant is liable

· Admiralty

o Different set of rules than torts; usually divide losses between everyone equally

· Vincent v Lake Erie (necessity) (this is building on Ploof)

o Facts

§ Def legally tied his boat to plaintiffs dock during a major storm

§ Def’s boat caused damage to plaintiffs dock

§ Plaintiff is looking to recover for damage done to dock

o Issue

§ Is def liable for damages when he legally kept boat on dock?

o Rule

§ Did you cause damage? Then pay for it.

§ Works similar to strict liability

o Reason

§ Even though the boat was allowed to be there, we want to protect the wholly innocent

§ If there was no storm then it would have also been trespassing

o Holding

§ Def is liable for damages caused to the dock; this is not trespassing

· Public necessity vs private necessity

o Public necessity

§ If it is necessary to help the public then the plaintiff usually gets nothing

o Private necessity

§ Don’t have to pay for trespassing but do have to pay for damages

o Private actor working for public good

§ If acting reasonably and in good faith, it is treated like public necessity

· Cost/benefit calculation

o Always encouraged to take the safest/cheapest option

Trespass of property

· Modern:

o Every intentional unauthorized or unlawful entry into the close of another is a trespass

o Exceptions: necessity and permission

· Older:

o Intentional action that resulted in injury

· Dougherty v Stepp

o Facts

§ Def enters plaintiffs land with his survey team; does no damage to anything; lower courts said this was no trespass

o Rule

§ Every unauthorized or unlawful entry into the close of another is a trespass

§ Two questions to ask:

· Did you enter land?

· Did you intend to enter land

· (if yes to both, then trespass)

· (does not matter if thought was own land)