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University of Illinois School of Law
Wexler, Lesley M.

Torts- Wexler- 2015

1-20-15- Prima Facie

Vosburg v. Putney

· Battery, 12 yr old kicks another student during school, whole bunch of medical issues- ends up losing the use of his leg

· What motivates a suit- $, trying to set precedent, parents might voluntarily pay/ wait it out, might be part of a family’s insurance policy (they don’t like to cover intentional torts), might want the court to “punish” the other party

· Def only liable if they bear some sort of relationship to the act/injury, look at the relationship between your injury and the result

· Experts- have them to show that other explanations are not valid, helps persuade a jury

· It is STILL a battery EVEN if the ultimate injury sustained is a minor one. Of course you get little $, unlikely to go further

· Intentional torts require Act (+) Intent

· Here the def DID NT intend to cause harm to the P. however, he did choose to kick the other child or In other words he choose to engage in an UNLAWFUL act

· Court does say it violates a classroom policy, exceptions might exist if “implied licesnse to do the act complained of existed”, here they aren’t on a playground, they were in a classroom called to order

· Intentional torts we worry less about P’s actions or behaviors. We are saying the other act is wrong (here the kick) and we don’t want to encourage this behavior so it matters less what the P is doing

· Here generally if you unintentionally touching someone it would not be intentional batter

· TRANSFERRED INTENT- doesn’t matter if you were intending to strike someone else, once you decide to engage in this unlawful act it doesn’t matter if you injured a different person

· Battery by smoke- think about SUBSTANTIAL DEGREE OF CERTAINTY, they were lacking this because didn’t know second hand smoke would touch any particular non-smoker. Analogy to gun stuff

Garrat v. Dailey

· Young boy pulls out chair for old women, he pulls chair away and she falls

· Here he doesn’t touch her so what makes this a battery?- did def engage in an act that causes harmful or offensive contact with the P

· Here he knows that she is likely to have harmful or offensive contact as a result of this. If I pull the chair out is it likely to hit the ground? Enough here for intent

· Prima Facie Case- Battery Chart Online

· Restatements are not binding on the courts

White v. University of Idaho

· Music professor touches student, they talk about lack of consent. 1. Did you have contact 2. Did they give permission- THIS IS VERY PLAINTIFF friendly

· Should we care if they intended to make harmful or offensive contact (majority approach) we could be looking at public policy

Comparing Intentional Torts and Negligence

· How do they differ? In intentional we ask what the def was thinking (neg we ask reasonableness) also here care less about Plaintiff (right to bodily integrity)

1-21-15- Affirmative Defenses

· 1. Consent- says that’s not true, 2. Def says yes it’s true BUT I shouldn’t have to pay damages because…now the burden is on def. Plaintiff must first bring elements of prima facie case can align with who has the better evidence

Mohr v. Williams

· Ear surgeon case, only examine one ear, she consents to surgery of right ear, after she is under realize that the left is worse, so decided to operate on left, she complains later that she lost hearing

· Conflicting need/ emergency

· She has right to bodily integrity AND it is not sufficient that they had consent for other ear

Kennedy v. Parrot

· Dr. while performing appendectomy discovers cysts, cysts get punctured, here the patient is worse off, BUT court seems to be saying- “Once you agree to this, we assume you agree to anything that is necessary to do the surgery”, Crt. Is giving Drs. A little leeway SAME PLACE and RELATED to underlying issue

· Consent inferred from conduct, O’Brien v. Cunard, she holds up her arm for immunization -> implied

· Hoffnel v. Segal-> consent form supersedes prior convos

Hudson v. Craft

· D promoter solicits the P (18 yr old boy for illegal fight), plaintiff injured sues oth promoter and other boxer

· Promoters argument is that -> if these two agreed to it why should I have to pay for it?

· With the restatement we want to protect the boxers from outside actors (aka the promoters)

· The difference here between the boxers and the rape case it is possible the boxer did not realize how dangero

rotect your property

· IF the def. had posted a big sign shows more intent to deter

· Basically court says actions inhumane, goes against Christinaity, also not economically efficient- animals will wander, you have to show sign because it cues indiv. In.

· Katko v. Briney- thief is entering home and is shout, court says thief can recover, it is just property, do we value life> property, (also in this case they didn’t live in the home, just used it to store stuff)

Kirby v. Foster

· ER withholds $ from EE, ER gives money to EE, and EE says I’m taking the $ you withheld from me, D. then “lays hands on him” court says nope “RECAPTURE” here does not work

· Re-capture- 1. Needs to have a claim of right 2. Wrongful taking 3. Fresh Pursuit

· Here P. believes his claim was valid ALSO FRESH PURSUIT- it has to happen immediately, later on it would be better to involve authorities, spillover


Review Affirmative Defense-

1. Insanity- not a stand alone defense, plays into intent

2. Self Defense- reasonable force to prevent- if mistake, reasonable- still entitled, unreasonable- not entitled, HOT pursuit- pretty close to time period when taken


Ploof v. Putnam

· Boating on lake, storm, docks at D.’s Dock, D. unmoores it, boat destroyed & they are hurt

· Trespass to chattle and trespass to land

· DOCTRINE OF NECESSITY- this applies with special force to the preservation of human life

· Crt, suggests no other options, make sure that their aren’t a plethora of other options, as long as you try to prevent, even if you could have acted diff in the past we AREN’T going to hold you liable

· “Holdout” problem- contracting under duress?

· A stranger DOES NOT have duty to assist you, D. didn’t have to help P moor