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University of Illinois School of Law
Hurd, Heidi M.


University of Illinois College of Law Fall 2015
Section B
Professor Hurd


A. The structure of tort pleadings and the procedural consequences of failing to plead and prove material facts required to support the prima facie case or any defenses, responses, or rejoinders?

Pleadings/Consequences of Failing to Plead/Prove:

If a plaintiff fails to plead any element of the P.F. Case (Voluntary Tortious Act, Culpable Mental State, Causation, Damage), Motion to Dismiss by Defendant. All 4 Elements must be pled and proven.

If plaintiff can’t make out one or more of the elements of the P.F. Case, Motion for Summary Judgment, even before trial.

If at close of trial, judge says no reasonable jury can find in favor of plaintiff (insufficient facts were proved for the elements), judge will Direct a Verdict from the bench.


If plaintiff succeeds in proving by a preponderance of the evidence (51% certain) all elements of the P.F. case, defendant could have an affirmative defense (consent given by plaintiff; self-defense).


Plaintiff may offer rejoinder: Consent was induced by fraud; duress; insanity; etc.

B. The legal consequences of suing for an intentional tort, as opposed to bringing a suit for negligence?

Punitive damages are available for intentional torts, but not for negligence
Nominal damages are presumed in case of intentional tort, but not in the case of negligence

Even if no appreciable dollar value can be assigned to harm, won’t be bar to suit – even if damages are only $1

Intentional tort judgments are not dischargeable in bankruptcy, but negligence judgments are
Some harms are compensable only if they’re intentional
Degree of causation is thought to be a bit different between intentional and negligence suits

“no harm that is intended is too remote” – will tolerate casual remoteness more in intentional torts than in negligence torts

Statute of limitations is shorter for intentional torts than negligent torts

Accidental injuries can take a while to unfold

Defenses will vary

Contributory negligence is defense to suit for negligence, not defense to suit for intentional tort

Think-skulled plaintiff rule – particularly apparent in cases of battery
Youth gets special standard in negligence cases that it doesn’t get in intentional tort cases

CL rule: children up to age 7 conclusively presumed to be incapable of forming tortious intention (i.e., can’t sue them for intentional tort)
Children aged 7-17 were rebuttably presumed capable of forming tortious intention
After age 17, conclusively presumed to be capable of forming tortious intention


(Battery: Vosburg v. Putney)

A. The Elements of the Prima Facie Case for Battery?

(1)Intend (2)Contact with a (3)Person that results in (4)Harm.

B. The Mens Rea Requirement:

Liable for battery if you commit what is contact that law deems harmful or offensive so long as you intend the contact; don’t have to intent harm or victim.

1. What result must the defendant intend in order to have the mens rea of battery?

a. Three possible rules:

-Putney’s Rule: I (H/O Contact w/person)

-I (Contact Person) èH/O

-I (Act) causing èContact èH/O

(1) Are they really different? Isn’t intending a harmful
contact and intending a contact that is harmful the same thing?

Rules 1 and 2 aren’t so different:

Putney intended to kick

Kicking = Harming

Putney intended harm

Intentions don’t necessarily honor the transitivity rule:

If A = B,

And B = C

Then, A = C

Intentions are description-specific

-The intent to contact is not necessarily an intent to harm

-Rule #1 re

nowledge” of result

a. Must the defendant know the identity of the victim?

-We don’t transfer knowledge; we transfer purpose.


I (contact w/ANY person) èH/O


C. The Actus Reus Requirement:

1. What sorts of contacts count as harmful or offensive?

-This is a question of fact, to be decided by the jury.

-Entitled to rule out some acts as non-offensible in the scheme of the world; and contacts that we shouldn’t have to put up with.

2. By what standard is a contact to be judged harmful or offensive?

-Two Tests To Determine:

-Objective (Majority): Would an average person of normal sensibilities who isn’t unduly sensitive to contacts find the contact harmful/offensive?

-Consent becomes Affirmative Defense

-Burden of proof on Defendant

-It’s more difficult for Defendant to prove there was consent(?)

-“It’s easier to prove something that did happen.” – Leaves trails.

-Subjective (Minority): Was it H/O to the plaintiff?

-Redefine Actus Reus of battery as unconsented-to contact

-Lack of consent built into P.F. definition

-Plaintiff must prove contact without consent in P.F. Case

3. Should lack of consent be an element of the prima facie case, or should consent be an affirmative defense?

-Defendant can raise question of consent, so some jurisdictions leave that element out of the P.F. definition of battery. So, we’re back to:

I (Purposely or Knowingly) (Contact w/a person)