Wednesday, May 17, 2017
Restatement of Intentional Torts: Should Offensive Battery Include Unusual Sensitivities of Plaintiffs if Known by Defendants?
The latest version of Section 3 of the Restatement of Intentional Torts provides:
§ 3. Battery: Definition of Offensive Contact
A contact is offensive within the meaning of § 1(c)(ii) if:
(a) the contact is offensive to a reasonable sense of personal dignity; or
(b) the contact is highly offensive to the other’s unusually sensitive sense of personal dignity, and
(i) the actor knows to a substantial certainty that the contact will be highly offensive to the other;
or (ii) the actor contacts the other with the purpose that the contact will be highly offensive.
Liability under Subsection (b) shall not be imposed if the court determines that avoiding the contact would be unduly burdensome or that imposing liability would be against public policy.
Section 3(b) includes liability for contact that is not offensive to a reasonable sense of personal dignity if the defendant knew that such contact would be highly offensive to the particular plaintiff in question. It was adopted two years ago, at the 2015 annual meeting, by a tie vote broken by the Reporters. Subsequently, it was decided to reconsider the issue this year, due to the relatively low number of persons present in 2015 and the closeness of the vote. The issue is whether to allow liability for offensive battery (or assault) if the defendant knowingly or purposefully ignores or exploits, as the case may be, the plaintiff's unusually sensitive condition, when it would not be unduly burdensome or contrary to public policy to avoid doing so. Just as in 2015, motions have been filed to eliminate 3(b) in its entirety or at least eliminate 3(b)(i) regarding substantial certainty. Guy Struve filed these motions which are here: Download R3d Intentional Torts TD2 s.3b Struve motion 1 (2) and here: Download R3d Intentional Torts TD2 s.3b Struve motion 2 (1)
On the other hand, Richard Wright has filed motions that seek to have the ALI support such liability, but without requiring a highly offensive contact or an intent to cause a highly offensive contact. Wright's arguments in support of his motions criticize the Struve motions for their assertions regarding the existing state of the case law and the prior Restatement provisions. Wright's motions are here: Download R3d Intentional Torts TD2 s.3b RWW motions
Very few Torts professors were at the meeting in 2015. If you are an ALI member in the area, please come and participate.