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University of Illinois School of Law
Wexler, Lesley M.



Spring 2015

I. Physical and Mental Harms

a. Battery

i. Elements of battery

1. Harmful contact (RST 2d §13): 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) a harmful contact with the person of the other directly or indirectly results

2. Intent (RST 2d §1): A person acts with the intent to produce a consequence if: a) the person acts with the purpose of producing that consequence, or b) the person acts knowing that the consequence is substantially certain to result.

3. Must be harmful or offensive contact, to that person’s body or anything close to or connected to it (i.e., a car, clothes, etc.)

ii. Vosburg v. Putney: Since kick happened while school was in session, it was an unlawful kick. If the kick is unlawful, then the intention to kick must also be unlawful.

1. Intent: present because d engaged in voluntary act to make contact without consent

2. Eggshell Skull Doctrine: You take the plaintiff as you find him, so if some greater than average harm results because of a plaintiff’s prior medical condition, you are liable for that greater harm.

3. It does not matter whether the harm which results is unforeseeable. Whatever harm results, a defendant is liable for (if proximately and in fact caused by D).

4. Implied License to Act: there are some contexts in which some touching is acceptable (playground, sports)

5. Garratt v. Dailey: While the boy did not intend to harm the woman, he did intend for her to make contact with the ground, and is thus liable for battery. It doesn’t matter that he didn’t touch her, it’s enough that she made contact with the ground.

6. White v. University of Idaho: Rejects restatement approach. Even though lacked offensive intent, piano teacher still touched p without her consent and is thus liable for battery.

7. Wagner v. Utah: Only required mental state is the intention to make contact and not the intention to cause harm. And thus, if the intent is present and the contact is harmful, an insane person can be held liable for battery (as long as thinks hitting human).

8. Talmage v. Smith: If a person intends to hit one person and then hits another, that person is liable for battery because of transferred intent. (Still had the intention to hit the person, so carries over).

9. Brown v. Williamson: Smoking is a legal activity. Moreover, cigarettes do not harm others through secondhand smoke unless someone lights up (intervening actor).

Defenses to intentional torts

iii. Consent: Mohr v.Williams: Doctor cannot perform surgery p did not consent to and can’t perform without consent unless necessary. Since p’s life not threatened, surgery not necessary. P’s family doctor is not authorized to speak on her behalf. Since surgery unauthorized, it is unlawful.

1. Damages Policy: reduced verdict better since p doesn’t deserve a windfall since she benefited from surgery.

2. Modern: consent forms give doctor general permission to do whatever they feel is necessary during surgery.

a. Forms trump patient/doctor convos

3. 3rd Party Consent:

a. Easy when patient gives explicit consent to 3rd party for them to speak on her behalf.

b. When no designated speaker and family cant agree

i. When patient cant consul-doctor’s judgment

ii. Patient when can consult

4. Implicit consent: O’Brien v. Cunard Steamship Co.: holding up arm to be vaccinated is an example of implicit consent.-behavior indicates consent

5. One cut rule: if don’t have to make another surgical cut, doctor can operate on what he sees fit since has general consent for the area

6. Emergency Rule: surgery can be done on a patient to save his life when he cannot consent to it. Implied consent-everyone would want their life to be saved in an emergency.

a. If conscious, patients can deny lifesaving treatment.

7. Sex and Consent: If fail to disclose a material fact or engage in fraud to obtain consent, can be liable for battery. (must be more than negligent)-i.e. if have STD and know it, have to disclose in order to have consensual sex.

iv. Member of Protected Class: Hudson v. Craft:

1. Boxer v. Boxer rules: court adopts the exception to the restatements rule and ignores the majority rule. CA regulated illegal boxing matches in order to protect the participants in them. Boxers don’t know what assenting to; don’t know breaking state law by participating. The promoter chose to not abide by law and get fight licensed. Thus, since boxers are part of class statute is seeking to protect, they get a defense, and promoter does not.

a. Majority rule: boxers can sue each other since you cannot consent to an illegal act. Also, state has an interest in preventing battery, so if crime, state becomes a party.

b. Minority rule (restatement §60): boxers cannot sue each other since the willing cant be injured. Also, if allowed to sue, incentivizing battery.

c. Restatement exception (§61): if a member of a protected class, can sue since cant consent-not clear what this means for boxer v. boxer since members of the same class

2. Boxer v. Promoter rules:

a. If can get to other boxer, can get to promoter as an aider and abettor

b. Restatement exception designed to protect boxer from promoter

c. Promoter committed statutory tort-so harm resulted

d. Could construe battery in a liberal way and say promoter put the battery in motion-courts reluctant to do since too liberal of a definition of battery

3. Children-can consent to children activities but not adult activities

4. Professional sports-no suits for battery, part of the nature of the game and can contract for increased payment for them.

b. Policy

i. Right incentives-d will always tie up boat if don’t have to pay

ii. Unjust enrichment

iii. 3rd party-if hit car instead of kid, paying out for peace of mind

iv. Public necessity: Not liable for damages acting for someone else-want to encourage behavior

b. Assault (Restatement §21) acts with intent to cause harmful or offensive contact with person or imminent apprehension of contact and the other is put in an imminent apprehension of such contact-can be an assault if easily warded off

i. Apprehension: Don’t have to be afraid of the contact, just have to have reasonable belief it will occur.

ii. De S and Wife v. W de S: Swinging hatchet at tavern constitutes an assault if d intended p to have fear of contact and p afraid. Hard to tell in this case, could just be knocking.

iii. Tuberville v. Savage: Language shows d lacks intention of assault since saying will not attack since judges in town. Assault needs both the intent and the action.

iv. Blackstone: Assault is an attempt to beat another without touching him (showing a gun)-it’s higher than bare threats

1. Needs to be imminent

2. Conditional threats do not constitute an assault

c. Trespass

i. To land: intentionally entered or caused something to enter somebody else’s property

ii. To chattel: intentionally touch somebody else’s personal property (don’t need to know that it is not mine)

d. False imprisonment

i. Elements of false imprisonment

1. Intent to confine

2. D takes measure to produce confinement

3. P must be aware confined

ii. Bird v. Jones: P at liberty to leave, just not in the direction he wanted to go. This does not constitute false imprisonment since in order for there to be an imprisonment, there needs to be a boundary you cannot pass.

1. if one avenue for departure, no false imprisonment

iii. Coblyn v. Kennedy’s Inc.: In order for shopkeeper exception to apply, detainment must be based on a reasonable belief, done in a reasonable manner, and for a reasonable length of time. Objective, not subjective. D detained p in an unreasonable manner since used excessive force in getting him back into the store.

1. holding on to someone’s property also can constitute false imprisonment since cannot leave without property-purse held by diner