Purposeful Infliction of Bodily Harm

Tentative Draft No. 1 of the Restatement of Intentional Torts includes Section 104 on the Purposeful Infliction of Bodily Harm:

§ 104.     Purposeful Infliction of Bodily Harm

An actor is subject to liability to another for purposeful infliction of bodily harm if:

(a) the actor purposely causes bodily harm to the other, either by the actor’s affirmative conduct or by the actor’s failure to prevent bodily harm when the actor has a duty to prevent such harm … 

Comment b.  … This Section recognizes intentional-tort liability in a small group of cases in which the contact requirement of battery liability is not satisfied but in which the actor’s culpability is especially pronounced.

 

Last month, Kurt Eichenwald, an author at Newsweek and critic of Donald Trump,  experienced an epileptic seizure when someone deliberately tweeted him a flashing yellow and orange starlike image reading, "you deserve a seizure for your posts."  Eichenwald had just finished a contentious interview on Fox News; it is well-known that Eichenwald suffers from epilepsy.   Story here. 

 

Ken Simons, a Reporter on the project, comments:

 

What is especially interesting about this case is:

 

(a) It is doubtful that battery liability would be recognized on these facts, given the difficulty of proving that the defendant’s interaction with the plaintiff satisfies battery’s contact requirement;

 

(b) It is quite possible that liability would be recognized under Sec. 104 of the Restatement Third, Intentional Torts to Persons (Tentative Draft No. 1, April 8, 2015, approved by American Law Institute):