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Torts
University of Illinois School of Law
Meyer, David D.

I. The Law of Torts

a. 12 Policies of Tort Law

1. Liability should be based on fault

2. Liability should be proportional to fault

3. Liability should be used to deter accidents

4. The costs of accidents should be spread broadly

5. The costs of accidents should be shifted to those best able to bear them

6. Those who benefit f/ dangerous activities should bear resulting losses

7. Tort law should foster predictability in human affairs

8. Tort law should facilitate economic growth & the pursuit of progress

9. Tort law should be administratively convenient & efficient, and should avoid intractable inquiries

10. Tort law should promote individual responsibility & discourage waste of resources

11. Courts should accord due deference to co-equal branches of Government

12. Accident victims should be fully compensated

b. Types of Arguments

1. Text Based

i. Using a statute or will

2. Intent

i. Legislative Intent

ii. Decedent Intent (Spoken to Others)

3. Tradition/Custom

i. What is the norm for similarly situated people in the area (ex: fence around auto yard)

4. Precedent

5. Policy (extremely important in tort

i. Economic Benefit Analysis

c. Aesthetics of Tort Law

1. Grid

i. What are the elements and where can they be plotted on a grid compared to other elements on the grid?

2. Energy

i. Tensions in the way different legal principles related with one another;

a. different pushes and pulls

3. Per spectiballis?

4. Dissociative

i. Attorneys talking past one another

II. Overview of Torts (7)

a. Intentional Torts

1. Intent Defined

i. Intent to do what the law forbids in a particular intentional tort is a sufficient predicate for tort liability even though the actor didn’t intent to cause harm

a. Red Hearing #1 on exam

ii. Intent to cause the harm is not required

2. Elements of Intent

i. Desired (purpose); or

ii. Substantially certain to occur (Knowledge)

a. Purpose intent is generally harder to show and prove whereas knowledge intent can more easily be proven.

b. In a given hypothetical, is the harm substantially certain (buzz word)to occur?

b. Damages

1. None are required to be shown for an intentional tort

c. Defenses

1. Contributory negligence is not defense to an intentional wrong

d. Tort of Negligence

1. Negligence suit requires the element of foreseeability in order to hold ∆ to be liable

i. Was the occurrence a first time event or had it happened prior?

a. Ex: First time fainting while driving compared with passing on STD

e. Strict Liability

1. Generally

i. No need to show knowledge of an animal’s or product’s propensity to be harmful to others to be found liable

f. Basic Insurance Principles

1. Not all tort defendants have liability insurance

2. Ordinarily whether the ∆ has liability insurance can’t be mentioned to the Jury in a trial

i. It would be unfair because a lay jury would likely grant larger damages

3. Policies are limited in the amount of coverage they are provided

4. Coverage may extend to person’s other than the purchasers of the policy (Spouse, minor child)

5. Some forms of harm (intentionally inflicted) are excluded from coverage – important point

i. Wise ∏’s lawyer will try to frame an intentional case as a tort of negligence

6. Under many policies the insurance company has a duty to defend any lawsuit

7. Some liability policies are self liquidating which means any amount spent on a case reduces the amount available to the amount that is recovered.

8. Insurance Co. has the power to accept or reject a settlement offer.

i. If Insurance unreasonably refuse a reasonable settlement offer, they can be held liable for damages in excess of policy limits

9. Insurance co must use reasonable care to protect the interests of the insured

III. Basic Intentional Torts (7)

1. ∏s can’t sue the Government for intentional torts

a. The Concept of Intent

2. Generally

i. The concept of intent is crucial in every intentional tort case except emotional distress

ii. Substantially Certain to Occur Test

3. Intent to Injure

i. It doesn’t matter that the ∆ didn’t mean to hurt the ∏ or was merely joking around

ii. The element of intent is merely intending to do the act, which causes a harmful or offensive touching of the person (for battery)

4. Mistake & Intent

i. Mistake is not an excuse for an intentional tort (Shooting dog thinking to be a Wolf)

a. Mistake may be an excuse when:

i. Self Defense or Defense of Others

ii. ∏ induces the ∆ mistake

1. Ex: Dressing dog up as wolf and sending into the woods

5. Intent and Insanity

i. Mental deficiency is irrelevant when determining intent

a. An insane person for his intentional damage is as liable in which a normal person would be liable.

6. Transferred Intent

i. An aider and abettor to wrongful activity is liable a third party because intent may be transferred to the aider and abettor through the wrongful acts of the wrong-doers

ii. If a ∆ intends to cause any invasion by a range of actions then the ∆ will be liable for any harm caused to the intended victim or a third party

a. Ex: Attempting to hit A but hit C.

iii. Exceptions

a. TI isn’t applicable to a third party if the ∆’s actions in the incident were tortious to his original target

i. Ex: An officer privileged in apprehending A isn’t liable if he accidently hits B with his nightstick while in the process of apprehending A

b. If both parties are consenting then there can be no transferred intent to a third party

i. Ex: Photographer taken out by football players or if a group of boys are throwing eraser’s at each other and a third party is hit.

b. Assault

1. The intentional creation of apprehension of imminent battery

i. Apprehension

1. The only thing the court is concerned about is the present apparent ability of a threat when viewed by the ∏.

a. Actual ability is irrelevant (ex: Bullet Proof Glass doesn’t matter)

b. Reasonableness of a threat is irrelevant (Midget threatening a body builder)

2. Must be imminent, can’t be a future threat

2. Words alone

i. Words alone can’t constitute assault

c. Battery

1. The intentional infliction of unconsented bodily contact that is harmful or offensive to a person

i. Once a ∆ has been explicitly made aware that a touching is offensive (even if seemingly innocent) the touching will become a battery if continued

1. This is to protect individual’s bodily integrity and viability

ii. Objects

1. Battery is also the touching of objects on a person

a. “Person” encompasses any objects closely identified with your body

2. ∆’s offensive contact with an object (camera) attached to or identified with the ∏’s body is sufficient to constitute a battery.

3. The question is when is an object so closely identified with a person i

perty of the ∏ or others, or which would be otherwise offend a reasonable sense of decency or personal dignity, isn’t reasonable

vi. Retention of Property

1. False Imprisonment may result from ∆’s exercise of control over the ∏’s property if the ∏ elects to remain with the property.

a. Ex: Retaining a customer’s purse to prevent ∏ f/ leaving the store

3. Unlawful Force, Threat of Force, or Assertion of Legal Authority

i. Generally

1. It is not enough for ∏ to feel mentally restrained by the actions of the ∆

a. The evidence must establish a restraint against the ∏’s will

2. A threat of future harm (even if in a few minutes) or staying behind could be characterized as trying to deal with moral pressure or economic coercion but isn’t false imprisonment

ii. Abuse of Power

1. Even if a person who has the power to place one under arrest abuses that power and places someone unlawfully under arrest, they can be liable for false imprisonment

a. False arrest arises when one is taken into custody by a person who claims, but doesn’t have proper legal authority to execute the arrest

2. Exception

a. Merchant’s privilege to detain one reasonably suspected of shop-lifting

4. Defenses

i. Consent

1. Implied

a. A ∏’s subsequent affirmative acts to the initial period of confinement and uncooperation creates implied consent of the false imprisonment

2. Impaired Judgment Capacity

a. When parents, or their agents, acting under the conviction that the judgmental capacity of their adult child is impaired, seek to extricate that child from what they reasonably believe to be a religious or pseudo-religious cult, and the child at some juncture assents to the actions in question, then no false imprisonment

f. Trespass to Land

1. Generally

i. A person who intentionally and without consent or privilege enters on, under, or above the land of another commits a trespass.

1. Ex: taking an unauthorized shortcut across the ∏’s lot, tunneling under it, stringing utility lines above it, or building a structure on it may be trespass

2. Indirect Invasion

i. Actions of throwing objects onto one’s property or pushing another onto one’s property, constitutes trespass by the wrongful actor

1. Ex: A pushes B onto C’s land; A commits trespass because B had no intent to enter

3. Permission

i. One who enters property with the permission of the possessor commits a trespass by failing to leave once the consent has expired

4. Intent

i. It is no defense to liability that the ∆ was mistaken about the ownership of the property,

ii. All that is required is the intent to be present (or transferred intent)

1. Intent to be present on someone else’s land isn’t necessary

g. Trespass to Chattels and Conversion

1. Generally