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Rape versus counterclaim of Defamation

Jury Instructions-IL > Intentional Torts > Rape versus counterclaim of Defamation

Louise Elinoff v. Antonio Curet, 04 L 13075

Rape versus counterclaim of defamation

This case was litigated in 2007 based upon a claim that the defendant raped the plaintiff raped at her hotel room while she attended an anthropological conference in Chicago. She alleged intentional infliction of emotional suffering and battery. The defendant asserted the defense of consent, and counter-sued for defamation. The jury turned down both claims and neither party recovered.

IPI 1.01 Preliminary Cautionary Instructions

            The law regarding this case is contained in the instructions I will give to you. You must consider the Court’s instructions as a whole, not picking out some instructions and disregarding others.

            It is your duty to resolve this case by determining the facts and following the law given in the instructions. Your verdict must not be based upon speculation, prejudice or sympathy.

            You will decide what facts have been proven. Facts may be proven by evidence or reasonable inferences drawn from the evidence. Evidence consists of the testimony of witnesses and of exhibits admitted by the court. You should consider all the evidence without regard to which party produced it. You may use common sense gained from your experiences in life in evaluating what you see and hear during trial.

            You are the only judges of the credibility of the witnesses. You will decide the weight to be given to the testimony of each of them. In evaluating the credibility of a witness you may consider that witness’ ability and opportunity to observe, memory, manner, interest, bias, qualifications, experience, and any previous inconsistent statement or act by the witness concerning an issue important to the case.

            An opening statement is what an attorney expects the evidence will be. A closing argument is given at the conclusion of the case and is a summary of what an attorney contends the evidence has shown. If any statement or argument of an attorney is not supported by the law or the evidence you should disregard that statement.

IPI 3.01 Rulings and Remarks of the Court

            Now that the evidence has concluded, I will further instruct you as to the law and your duties. I have not meant to indicate any opinion as to the facts of this case by any of my rulings, remarks, or instructions.

3.02 Witness Who Has Been Interviewed by Attorney

            An attorney may, if a witness agrees, interview a witness to learn what testimony will be given. Such an interview, by itself, does not reflect adversely on the truth of the testimony of the witness.

IPI 3.04 Circumstantial Evidence

            A fact or a group of facts, may, based on logic and common sense, lead you to a conclusion as to other facts. This is known as circumstantial evidence. A fact may be proved by circumstantial evidence. For example, if you are in a building and a person enters who is wet and is holding an umbrella, you might conclude that it was raining outside. Circumstantial evidence is entitled to the same consideration as any other type of evidence.

14.01 Willful and Wanton Conduct—Definition

            When I use the expression “willful and wanton conduct” I mean a course of action which shows actual or deliberate intention to harm or which, if not intentional, shows an utter indifference to or conscious disregard for plaintiff’s safety..

IPI 15.01 Proximate Cause

When I use the expression “proximate cause,” I mean any cause which, in natural or probable sequence, produced the injuries or damages complained of.

20.01.01 Issues Made by the Pleadings—Negligence and Willful and Wanton Counts

Each party to this suit claims to be entitled to damages from the other: The plaintiff, under her complaint, and the defendant under his counterclaim.

Louise Elinoff’s Complaint for Battery and Intentional Infliction of Emotional Distress

Under the claim of Battery, the plaintiff, Louise Elinoff, claims that on November 20, 2003 she was injured and sustained damages and that the conduct of the defendant, Antonio Curet, was willful and wanton in one or more of the following respects:

  1. That Antonio Curet had the intent to cause harmful and offensive contact with Louise Elinoff without consent.
  2. That Antonio Curet actually made unauthorized physical contact with Louise Elinoff that was harmful and offensive.

Under the claim of Intentional Infliction of Emotional Distress, the plaintiff, Louise Elinoff, claims that on November 20, 2003 she was injured and sustained damages and that the conduct of the defendant, Antonio Curet, was willful and wanton in one or more of the following respects:

  1. That Antonio Curet knowingly touched Louise Elinoff’s body with his hands and penis without consent.
  2. That Antonio Curet’s conduct was extreme and outrageous.
  3. That Antonio Curet acted in deliberate disregard of a high probability that emotional distress would follow.
  4. That Louise Elinoff experienced severe emotional distress.

The plaintiff, Louise Elinoff, further claims that one or more of the foregoing was a proximate cause of her injuries.

The defendant, Antonio Curet, denies that he did any of the things claimed by the

plaintiff, denies that he was willful and wanton in doing any of the things claimed by the plaintiff, and denies that any claimed act or omission on the defendant’s part was a proximate cause of the plaintiff’s claimed injuries.

Antonio Curet’s Counterclaim for Defamation of Character

Under the Counterclaim for Defamation of Character, the Defendant, Antonio Curet as counter-plaintiff, claims that he suffered damages after November 20, 2003  and that the conduct of the counter-defendant, Louise Elinoff, was wrongful in one or more of the following respects:

  1. That Louise Elinoff made statements to third parties that Antonio Curet raped and sexually assaulted Louise Elinoff, defaming his character.
  1. That Louise Elinoff knew or should have known that the statements were false.

The Counter-Plaintiff, Antonio Curet, further claims that one or more of the foregoing was a proximate cause of his injuries.

The Counter-Defendant, Louise Elinoff, denies that she did any of the things claimed

by the Counter-Plaintiff, Antonio Curet, denies that she acted knowingly in doing any of the things claimed by the counter-plaintiff, and denies that any claimed act or omission on the Louise Elinoff’s part was a proximate cause of the Antonio Curet’s claimed injuries.

IPI 21.01 – BURDEN OF PROOF

When I say that a party has the burden of proof on any proposition, or use the expression “if you find,” or “if you decide,” I mean you must be persuaded, considering all the evidence in the case, that the proposition on which a party has the burden of proof is more probably true than not true.

B21.02.02 Burden of Proof on the Issues—One Plaintiff and One Defendant—Negligence and Willful and Wanton Counts/B21.03 Burden of Proof on the Issues—Affirmative Defenses/B21.04 Burden of Proof—Counterclaim—Negligence Only—One Plaintiff and One Defendant ALL MODIFIED

Louise Elinoff’s Complaint for Battery and Intentional Infliction of Emotional Distress

  1. In order for Louise Elinoff to recover on her complaint for Battery, she has the burden of proving each of the following propositions:

(1)        That Antonio Curet had the intent to cause a harmful contact with Louise Elinoff.

(2)        That Antonio Curet actually made unauthorized physical contact with Louise Elinoff that was harmful.

(3)        That Louise Elinoff was injured.

(4)        That Antonio Curet’s actions proximately caused the injury to Louise Elinoff.

If you find from your consideration of all the evidence that each of these propositions has been proved, then your verdict should be for the plaintiff, Louise Elinoff.

On the other hand, if you find from your consideration of all the evidence that any of these propositions has not been proved, then your verdict should be for the defendant, Antonio Curet.

  1. In order for Louise Elinoff to recover on her complaint for Intentional Infliction of Emotional Distress, she has the burden of proving each of the following propositions:

(1)              That Antonio Curet sexually assaulted the Louise Elinoff;

(2)              That Antonio Curet’s conduct was extreme and outrageous;

(3)              That Antonio Curet acted in deliberate disregard of a high probability that  emotional distress would follow;

(4)              That Louise Elinoff experienced severe emotional distress; and

(5)              That Antonio Curet’s conduct did proximately caused Louise Elinoff’s emotional distress.

     If you find from your consideration of all the evidence that each of these propositions has been proved, then your verdict should be for the plaintiff, Louise Elinoff.

     On the other hand, if you find from your consideration of all the evidence that any of these propositions has not been proved, then your verdict should be for the defendant, Antonio Curet.

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Antonio Curet’s Counterclaim for Defamation of Character

            In order for Antonio Curet to recover on his counterclaim for Defamation, he has the burden of proving each of the following propositions:

(1)        That the statements made by Louise Elinoff that Antonio Curet raped and/or sexually assaulted her are false:

(2)        That Louise Elinoff either knew or should have known that the statements were false;

(3)         That  statements identify and pertain to Antonio Curet; and

The Louise Elinoff published those statements to a third party.

If you find from your consideration of all the evidence that all of these propositions have been proved, then your verdict should be for Antonio Curet on his counterclaim.

On the other hand, if you find from your consideration of all the evidence that any of these propositions has not been proved, then your verdict should be for Louise Elinoff  as to Antonio Curet’s counterclaim.

If you do find for Antonio Curet on his Counter-claim for defamation, then the

court instructs you that a published statement, if proven false, accusing Antonio Curet of rape and/or sexual assault is “defamation per se”. “Defamation per se” is committed when a person makes a false statement about another that imputes the commission of a criminal offense.

IPI 30.01 Measure of Damages [Elinoff]

            If you decide for Louise Elinoff on the question of liability on her complaint for Battery and Intentional Infliction of Emotional Distress, then you must then fix the amount of money which will reasonably and fairly compensate her for any of the following elements of damages proved by the evidence to have resulted from Antonio Curet’s wrongful conduct, taking into consideration the nature, extent and duration of damages.

  1. The value of earnings, salaries, and benefits lost  and the present cash value of the time, earnings, salaries, and benefits reasonably certain to be lost in the future result of the wrongful conduct.
  1. The value of earnings, salaries, and benefits lost and the present cash value of the time, earnings, salaries, and benefits reasonably certain to be lost in the future as a result of the wrongful conduct.
  1. Emotional Distress experienced and reasonably certain to be experienced in the future as a result of the wrongful conduct.
  1. Punitive damages as defined in these instructions.

Whether any of these elements of damages has been proved by the evidence is for you to determine.

35.01 Punitive/Exemplary Damages – Willful and Wanton Conduct

As previously stated, in addition to compensatory damages, the law permits you under certain circumstances to award punitive damages. If you find that a party’s willful and wanton and proximately caused injury or damages to another party, and if you believe that justice and the public good require it, you may award an amount of money which will punish the offending party and discourage him or her and others from similar conduct.

In arriving at your decision as to the amount of punitive damages, you should consider the following three questions. The first question is the most important to determine the amount of punitive damages:

  1. How reprehensible was the offending party’s conduct? On this subject, you should consider the following:
  1. a) The facts and circumstances of the conduct;
  2. b) The financial vulnerability of the injured party;
  3. c) The duration of the misconduct;
  4. d) The frequency of offending party’s misconduct;
  5. e) Whether the harm was physical as opposed to economic; and
  6. f) Whether the offending party tried to conceal the misconduct;
  1. What actual and potential harm did the offending party’s conduct cause to the injured party in this case?
  1. What amount of money is necessary to punish and discourage the offending party and others from future wrongful conduct in light of the offending party’s financial condition?

The amount of punitive damages must be reasonable and in proportion to the actual and

potential harm suffered by the injured party.

IPI 30.01 Measure of Damages [Curet]

            If you decide for Antonio Curet on the question of liability on his counterclaim for Defamation per se, then you must then fix the amount of money which will reasonably and fairly compensate him for any of the following elements of damages proved by the evidence to have resulted from Louise Elinoff’s wrongful conduct, taking into consideration the nature, extent and duration of damages.

  1. The value of earnings, salaries, and benefits lost and the present cash value of time, earnings, salaries, and benefits reasonably certain to be lost in the future result of the wrongful conduct.
  2. “General Damages” are presumed as a matter of law from defamation per se to naturally flow from a defamatory statement. Those damages include impairment of one’s reputation, the loss of standing in the community, the loss of esteem, personal humiliation and anguish. You are to decide an amount of money that will fairly compensate Antonio Curet for these injuries.
  3. Punitive damages as defined in these instructions

If you find that Louise Elinoff is liable to Antonio Curet for the defamatory per se statements to third parties, you may consider whether to award Antonio Curet punitive damage. Because the law presumes that Louise Elinoff acted with “malice” as to any unqualified defamatory statements made to third parties, you may assess punitive damages against Louise Elinoff as punishment and as a deterrent to others if you believe that justice and the public good require it.

“Malice” means that Louise Elinoff published the statements with wanton disregard for Antonio Curet’s rights, with ill will, and with an evil intention to defame and injure Antonio Curet.

Whether any of these elements of damages has been proved by the evidence is for you to determine.

34.02 Damages Arising in the Future—Discount to Present Cash Value

            In computing the damages arising in the future because of the loss of future earnings or benefits, you must determine their present cash value. “Present cash value” means the sum of money needed now, which, when added to what that sum may reasonably be expected to earn in the future, will equal the amount of the earnings and benefits at the time in the future when the earnings or benefits would have been received.

            Damages for pain and suffering are not reduced to present cash value

41.05 Counterclaim

            In this action a counterclaim has been filed. As to the issues raised by the counterclaim and the answer to it, the parties therein named stand in the same relation to one another as do a plaintiff and a defendant. Therefore, the instructions given to you which apply to the plaintiff, Louise Elinoff, and the defendant, Antonio Curet apply with the same effect to the counter-plaintiff, Antonio Curet, and counter-defendant , Louise Elinoff. respectively.

IPI.36.01 In Absence of Liability—No Occasion to Consider Damages

             If you decide for a defendant or a counter-defendant on any claim against him or her on the question of liability, then you will have no occasion to consider the question of damages as to that defendant or counter-defendant.

IPI B45.01.A – VERDICT FORM A

B45.02 Instruction on Use of Verdict Forms—Negligence Only—Single Plaintiff and Defendant—Counterclaim

            When you retire to the jury room you will first select a foreperson. He or she will preside during your deliberations.

            Your verdicts must be unanimous.

            Forms of verdicts are supplied with these instructions.

After you have reached your verdicts, fill in and sign the appropriate forms and return them to the court.

You must return two verdicts as to Louise Elinoff’s claims for battery and intentional infliction of emotional distress as against Antonio Curet, and one verdict as to Antonio Curet’s counterclaim of defamation as against Louise Elinoff.

Your verdicts must be signed by each of you. You should not write or mark upon this or any of the other instructions given to you by the court.

As to Louise Elinoff’s complaint for Battery

If you find for Louise Elinoff and against Antonio Curet on Louise Elinoff’s complaint for battery, then you should use Verdict Form A.

If you find for Antonio Curet, and against Louise Elinoff on Louise Elinoff’s complaint for battery, then you should use Verdict Form B.

As to Louise Elinoff’s complaint for Intentional Infliction of Emotional Distress

If you find for Louise Elinoff and against Antonio Curet on Louise Elinoff’s complaint for intentional infliction of emotional distress, then you should use Verdict Form C.

If you find for Antonio Curet, and against Louise Elinoff on Louise Elinoff’s complaint for intentional infliction of emotional distress, then you should use Verdict Form D.

As to Antonio Curet’s counter-complaint for Defamation:

If you find for Antonio Curet and against Louise Elinoff on Antonio Curet’s counter-complaint for defamation, then you should use Verdict From E

If you find for Louise Elinoff and against Antonio Curet on Antonio Curet’s counter-complaint for defamation, then you should use Verdict Form F.

B45.02.D Verdict Form D—Single Plaintiff and Defendant—Counterclaim—No Contributory Negligence Pleaded

VERDICT FORM A

As to Louise Elinoff’s complaint against Antonio Curet for Battery, We, the jury, find for Louise Elinoff and against Antonio Curet. We assess damages in the sum of $___________________________, itemized as follows:

The pain and suffering experienced and reasonably certain to be

experienced in the future                                                                    $_________________

Salaries, earnings, or benefits lost and reasonably certain to be

experienced in the future                                                                    $__________________

The Punitive Damages                                                                        $_________________

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VERDICT FORM B

As to Louise Elinoff’s complaint against Antonio Curet for Battery, We, the jury, find for Antonio Curet and against Louise Elinoff.

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(Foreperson)

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VERDICT FORM C

As to Louise Elinoff’s complaint against Antonio Curet for Intentional Infliction of Emotional Distress, We, the jury, find for Louise Elinoff and against Antonio Curet. We assess damages in the sum of $___________________________, itemized as follows:

The pain and suffering experienced and reasonably certain to be

experienced in the future                                                                    $_________________

Salaries, earnings, or benefits lost and reasonably certain to be

experienced in the future                                                                    $__________________

Emotional Distress experienced and reasonably certain to be

experienced in the future.           $__________________

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VERDICT FORM D

As to Louise Elinoff’s complaint against Antonio Curet for Intentional Infliction of Emotional Distress, We, the jury, find for Antonio Curet and against Louise Elinoff.

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VERDICT FORM E

As to Antonio Curet’s counter-complaint against Louise Elinoff for Defamation, We, the jury, find  for Antonio Curet and against Louise Elinoff. We assess damages in the sum of 

$__________________________________, itemized as follows:

Salaries, earnings, or benefits lost and reasonably certain to be

experienced in the future                                                                    $__________________

The General damages                                                                          $__________________

The Punitive Damages                                                                        $__________________

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VERDICT FORM F

As to Antonio Curet’s counter-complaint against Louise Elinoff for Defamation, We, the jury, find  for Louise Elinoff and against Antonio Curet.

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