Torts: Illinois Distinctions

Question 1

(Intentional Torts) Defenses to the Intentional Torts: Self Defense–When Is Defense Available?

Answer 1

In Illinois, a person who is not the original aggressor has not duty to attempt to escape danger before using force.

Question 2

(Intentional Torts) Defenses to the Intentional Torts: Defense of Others–When Is Defense Available?

Answer 2

A person is justified in the use of force when he reasonably believes it is necessary to defend himself or another against imminent use of unlawful force.

Question 3

(Harm to Economic and Dignitary Interests) Defamation: Fault on Defendant’s Part–Private Persons Must Prove Negligence in All Cases

Answer 3

In a defamation action brought by a private person, courts will apply a negligence standard regardless of whether the publication related to a matter of public concern.

Question 4

(Harm to Economic and Dignitary Interests) Invasion of Right to Privacy: Publication of Facts Placing Plaintiff in False Light–First Amendment Limitation

Answer 4

In all “false light” cases (regardless of whether public interest is involved), Illinois requires a showing of actual malice; i.e, knowledge of the falsity of the publication or reckless disregard of its truth. This requirement is based on the nature of the tort rather than the constitutional requirements.

Question 5

(Negligence) The Duty of Care: Particular Standards of Conduct–Professionals

Answer 5

A physician’s duty is to exercise the same degree of knowledge, skill, and care that a reasonably well-qualified physician in the same or similar community would use under similar circumstances.

Question 6

(Negligence) The Duty of Care: Particular Standards of Conduct–Children–Minimum Age for Capacity to Be Negligent

Answer 6

Illinois follows the “tender years” doctrine, which finds that a child under the age of 7 years is presumed not to be responsible for his acts. The presumption remains for a child between the ages of 7 and 14, but this presumption can be overcome by proof of the intelligence and capacity of the child. A child who is age 14 or older, or who engages in an adult activity, is held to an adult standard of care.

Question 7

(Negligence) The Duty of Care: Duty of Possessor to Those on the Premises–Characterization of Privileged Entrants–Firefighters

Answer 7

An owner or occupier of land owes to firefighters who are on the premises engaged in firefighting activity a duty of reasonable care in maintaining the premises according to fire safety code sand other generally applicable safety standards.

Question 8

(Negligence) The Duty of Care: Duty of Possessor to Those on the Premises–Modern Trend Rejects Status Rules

Answer 8

A duty of reasonable care under the circumstances is owed to both licensees and invitees. The common law rule for adult trespassers is unchanged.

Question 9

(Negligence) The Duty of Care: Duty of Possessor to Those on the Premises–Statutory Standards of Care–Effect of Violation or Compliance

Answer 9

In Illinois, the violation of an ordinance or statute designed to protect life or property is only prima facie evidence of negligence.

Question 10

(Negligence) The Duty of Care: Duty Regarding Negligent Infliction of Emotional Distress–Plaintiff Must Be Within “Zone of Danger”

Answer 10

Illinois retains the zone of danger standard for recovery by a bystander for seeing a tortfeasor negligently cause harm to another. Thus, someone related to the victim cannot recover if she is outside the zone of danger.

Question 11

(Negligence) The Duty of Care: Duty Regarding Negligent Infliction of Emotional Distress–Plaintiff Need Not Suffer Physical Symptoms from the Distress

Answer 11

Illinois does NOT require an allegation of physical injury or manifestation of symptoms from the emotional distress to recover for negligent infliction of emotional distress.

Question 12

(Negligence) The Duty of Care: Affirmative Duties to Act–Assumption of Duty by Acting

Answer 12

A club owner may be liable to the estate of a decedent killed in a collision with the vehicle of an obviously intoxicated patron who was kicked out of the club. By ejecting the patron (who was vomiting in the bathroom), assisting him to his car, and directing that he leave the premises, the club breached a common law duty to the decedent motorist by enabling the patron to engage in tortious conduct.

Question 13

(Negligence) Defenses to Negligence: Contributory Negligence–Standard of Care for Contributory Negligence–Violation of Seat Belt Statute by Plaintiff

Answer 13

Failure of a plaintiff to wear a seat belt in violation of the seat belt statute shall not: (1) be considered evidence of negligence; (2) limit the liability of an insurer; or (3) diminish any recovery of damages arising out of the ownership, maintenance, or operation of a motor vehicle.

Question 14

(Negligence) Defenses to Negligence: Contributory Negligence–Standard of Care for Contributory Negligence–Comparative Negligence

Answer 14

Illinois has adopted partial comparative negligence. A plaintiff is barred if his fault is more than 50%.

Question 15

(Negligence) Defenses to Negligence: Contributory Negligence–Standard of Care for Contributory Negligence–Effect on Other Doctrines

Answer 15

Last clear chance is no longer followed. Assumption of risk is treated as a type of contributory fault. IF the defendant’s willful and wanton misconduct is intentional, damages are not reduced by the plaintiff’s contributory negligence. If the defendant’s willful and wanton misconduct is reckless, damages are reduced.

Question 16

(Products Liability) Liability Based on Strict Tort Liability: Defenses

Answer 16

Illinois does not fully apply it comparative fault rules to strict products liability actions. Hence, contributory negligence is NOT a defense in an strict liability action when it consists merely of a failure to discover the defect or to guard against the possibility of its existence. However, misuse and assumption of risk constitute misconduct that will be compared in apportionment of damages.

Question 17

(General Consideration for All Tort Cases) Vicarious Liability: Automobile Owner for Driver

Answer 17

Illinois has not adopted either the family car or permissive use rules; hence, an automobile owner is not vicariously liable for the tortious conduct of the driver.

Question 18

(General Consideration for All Tort Cases) Vicarious Liability: Parent for Child

Answer 18

An Illinois statute applicable to children between the ages of 11 and 19 allows a plaintiff harmed by the child’s willful or malicious acts to recover up to $20,000 in actual damages against the child’s parents for each occurrence, plus costs and attorney’s fees. The amount goes up to $30,000 per occurrence if the conduct is continual.

Question 19

(General Consideration for All Tort Cases) Vicarious Liability: Tavern Keepers

Answer 19

Illinois’s Dramshop Act imposes liability on licensed sellers for third-party injuries caused by intoxicates persons, and also imposes liability on any adult who pays for a hotel room or other facility knowing that it is going to be used for underage drinking, if an intoxicated minor cause injury to another. Because the Act imposes no-fault liability on the seller, defenses based on negligence cannot be raised in a Dramshop action. Also, because the legislature has preempted the field of alcohol-related liability, there is no social host liability in Illinois.

Question 20

(General Consideration for All Tort Cases) Vicarious Liability: Tavern Keeps – Adults Furnishing Alcohol to Minors

Answer 20

An adult who willfully supplies alcohol or illegal drugs to minor, causing the impairment of the minor, is liable for the death, personal injuries, or property damage suffered by the minor or a third person as a result of the impairment. Liability also extends to the owner or occupier of nonresidential property who willfully permits consumption of alcohol or illegal drugs on the property that causes or contributes to the impairment of the minor.

Question 21

(General Consideration for All Tort Cases) Parties–Multiple Defendant Issues: Joint and Several Liability–Statutory Limitations

Answer 21

Illinois retains joint and several liability for medical expenses. For non-medical expenses, a defendant whose fault is less than 25% of the total fault (excluding fault attributable to the plaintiff’s employer) will be liable only for the amount of damages attributable to that defendant. However, in medical malpractice actions based on negligence, all defendants found liable shall be jointly and severally liable for ALL damages.

Question 22

(General Consideration for All Tort Cases) Parties–Multiple Defendant Issues: Comparative Contribution

Answer 22

In Illinois, a joint tortfeasor’s pro rata share of the total liability is based on his relative degree of fault.

Question 23

(General Consideration for All Tort Cases) Tort Immunities: Intra-Family Tort Immunities

Answer 23

A spouse may sue the other spouse for a tort committed during marriage. Parent-child immunity applies to conduct inherent to the parent-child relationship, such as the exercise of parental authority and supervision or exercise of discretion in provision of care for the child. Negligent operation of an automobile is not conduct inherent to the parent child-relationship.

Question 24

(General Consideration for All Tort Cases) Tort Immunities: Governmental Tort Immunity–State and Local Governments

Answer 24

Damages in tort claims against the state shall not exceed $100,000 for any plaintiff. This limit does not apply to damages awarded in cases involving the operation by a state employee of a state vehicle. Because the statute establishes an extensive list of immunities based on specific government functions, judicial exceptions such as the government/proprietary function distinction do no apply.