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University of Illinois School of Law
Hurd, Heidi M.

Torts Outline

a. The Prima Facie Case
i. Four Elements
1. Actus Reus
1. The showing of a voluntary tortuous act
2. Mens Rea
1. Wrongful Intention
3. Damages
1. Showing of harmful consequences
4. Causation
ii. Establishing
1. Plaintiff must claim all four or case is thrown out
2. Plaintiff must prove all, or defendant gets summary judgment
3. If it becomes clear that no reasonable jury could find for plaintiff, judge sustains a directed verdicte
b. Battery as an example
i. Definition – the causing of intentional harm or contact
1. (Assault – the causing of an apprehension of contact)
ii. The PF Case for battery
1. AR: Physical contact which is harmful or offensive
2. MR: intent to inflict a harmful or offensive contact
3. Damages: physically harmful or offensive contact
4. Causational consequences
iii. Vosburg v. Putney
1. Vosburg sued for intentional tort instead of negligence
1. had he sued for N, Putney would have claimed contributory N, which at the time was a basis for dismissing the entire case
2. 8 Consequences of Intentional Tort v. Negligence
1. The defenses vary
2. Intentional torts allow for punitive damages
i. Intentional torts are thought to be egregious enough for there to be punitive damages
3. In intentional tort cases, the court will assume you incurred nominal damages. In negligence, you have to prove compensatory damages
4. Judgments in intentional torts are not discharged in bankruptcy
5. Some harms are only compensable if they are intentional
6. Degree of causation differs.
i. In intentional torts, remote causation is contemplated
7. Statute of limitations is shorter on intentional torts
8. Negligence has a sliding scale of maturity. Intentional torts only require the capacity to have wrongful intent.
3. The MR for battery
1. intend the contact but not the harm
i. the intention has to be unlawful
1. unlawfulness is decided by tort law. If you intend something that under tort law is unlawful, then you have unlawful intent
iv. Transferred intent
1. We create a legal fiction that transfers intent. It doesn’t matter if the person who was harmed was intended to be harmed.
c. What constitutes an intention?
i. 6 States of Mind
1. Ultimate purpose
2. Mediated purpose
1. meaning it is on the road to the ultimate purpose
3. Knowledge
1. a belief to a substantial certainty that the harm was coming
2. the result is a known collateral event
i. Garret v. Davis – Kid pulls chair out from aunt b/c he wants it for himself. He knew aunt would hit the floor though it wasn’t his intent. But he had knowledge it would happen.
4. Substantial and unjustifiable risk
1. Reckless
5. Negligence
1. Should have known
6. Strict Liability
ii. Tort law captures both K and P in intent. P isn’t required – K will suffice.
d. Defenses
i. Consent
1. Two types of defenses
1. Justification
i. All things considered, the right thing was done
2. Excuses
i. Leave room for human frailty, but perhaps the right option wasn’t taken.
2. Two questions to ask in an objective defense
1. Was the contact harmful or offensive to a reasonable person?
2. Was it harmful or offensive to the plaintiff?
i. There is a sense of ownership in tort law. If harm was invited, the plaintiff takes partial responsibility.
3. Consent
1. Objective standard of what is harmful or offensive
i. This places the burden of proof on the defendant (otherwise the plaintiff would be forced to show there was no consent)
2. Three Possible Interpretatio

suit for that contact
a. exception: where the contact sued for has been made illegal as a means of protecting the class of persons from the harm that arises when that contact is consented to, their consent to that illegal contact is ineffective and does not bar suit.
ii. Self-Defense
1. 4 Possible Rules
1. Real, imminent peril
2. Belief (in real, imminent peril) + real, imminent peril
3. Belief (in the real, imminent peril)
4. Reasonable belief (in real, imminent peril)
i. The law requires only a belief in real, imminent peril and that a reasonable person would believe that. This is the rule in criminal and tort law.
2. Use of Force
1. Non-Deadly (i.e. PF battery)
i. To repel physical threats to person or property (but not to dignity, reputation, privacy, or economic interests)
2. Deadly (i.e. force sufficient to inflict death or grievous bodily harm)
i. Proportionality – if you’re threatened with deadly force or grave personal harm.
1. Rights Violations
a. Majority of courts say that you cannot use this even though it may result in a violation of your rights (e.g. an unwanted kiss)
i. This has the underlying moral claim of utilitarianism
b. The Maine Supreme Court has held that if the use of deadly force is the only way to prevent a rights violation, then it is allowed.
i. This has the underlying moral claim of rights theory – everyone has rights and the prerogative to protect those rights