Thanks for joining this episode of the No. 86 lecture series, where we discuss basic principles and applications of Tort Law along with landmark cases. Today's episode features Greg Dickinson, who is an Assistant Professor of Law at the University of Nebraska, where he teaches Contracts, Business Torts and Unfair Competition, and Remedies. He is also a fellow with the Stanford Law School Program in Law, Science and Technology As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker. PUBLIUS: Professor Dickinson, could you explain how intentionality works in tort law? Is the same level of intent required for all torts? GREG DICKINSON: For every tort or, or just about every tort, there's some level of intentionality that's required, in order for it to count as a tort. And this makes sense given tort law is the law of wrongs where it's governing wrongs done to people. Usually, we think of wrongs as things you do, with at least some level of intentionality. But in tort law, it's on a spectrum, depending on which tort you're talking about, whether you're talking about assault or battery or trespass or negligence. And so different states of mind or different levels of intentionality are required for different torts. And so you could think of it as something like a spectrum. At one extreme end would be something like, you know, I punched him in the nose and I wanted to, that's exactly what I was trying to do. I punched him in the nose on purpose, and that would be true pure in intentionality. But, you could go down, toward the other end of the spectrum and you'd have something like recklessness, another mental state or another level of intentionality where maybe it wasn't your goal, but you knew there was a pretty significant risk that something bad could happen and you decided to do it anyway. You consciously disregarded a pretty obvious and significant risk. That would be recklessness, which is a different level of intent. You could have negligence or carelessness which is, is, maybe the most intuitive. Just you weren't as careful as you should have been. It was wrong, not because you set out to do it, but because you weren't as careful as you should have been and somebody got hurt. And so there's a whole spectrum of different levels of intent. And depending on what tort you're talking about, it's going to be a different level of intent that's required in order for that tort claim to be valid, for it to succeed. PUBLIUS: When considering intent in tort law, how do we determine from whose perspective we should evaluate the situation? GREG DICKINSON: An important question beyond just how much intent you have, whether it needs to be intent, like this is what you were trying to do, that sort of intent, or whether just a, a lower mens rea or a lower mental state, something like, carelessness not being as careful as you should have been about something. Regardless of which kind of level on the spectrum you're talking about from intentionality to just carelessness, you also have another question: from whose perspective? And so a good example of this is the tort of assault. And so the tort of assault is, intentionally, causing or causing apprehension in another person that there's about to be harmful or offensive contact, so intentionally causing in another person apprehension of imminent harmful or offensive contact. That's the kind of textbook definition of it. You've essentially put somebody in apprehension that there's going to be a harmful or offensive contact. But,what if the person that perceives this, that perceives contact to be offensive is, is hypersensitive? Maybe you walk up to somebody and you, you're going to ask them for directions and you kind of tap them on the shoulder a little bit, and then they freak out. They're, they're like, I can't believe you did that. How could you possibly have done that? That's, that's so incredibly offensive. You, you touched me without my permission. You'd say, whoa. You know, hold on a minute there, buddy. I didn't mean any offense. I, I wasn't trying to cause you harm. And so then you have this question. The definition of assault is, causing somebody to be in apprehension of harmful or offensive contact, or I should move it to battery here since we're actually dealing with an actual touch rather than a threatened touch. And so the definition of battery is, causing contact with somebody of a harmful or offensive type. Here you have just a tap on the shoulder that turned out to be extremely offensive. Somebody freaks out about this. And so you have to ask, well, from whose perspective? And so that very often is a key question in tort law alongside, how much do you have to have intended, the actual intention or just carelessness. PUBLIUS: So in cases involving a hypersensitive plaintiff, how does the law handle that situation? GREG DICKINSON: Generally speaking as a broad general matter, the answer in tort law is we look at it from an objective reasonable person. We say, well, would a reasonable person find that contact to be of a harmful or offensive type? Would a, would a reasonable person think that a tap on the shoulder was offensive? And, and we'd say no. You know, most people wouldn't think that a tap on the shoulder to ask directions is offensive. And so from the standpoint of the reasonable person, an objective reasonable person, this wasn't offensive contact. And so no liability here, even though the plaintiff, the person bringing the claim subjectively, internally themselves perceived this to be really offensive. That's not what matters. What matters is the perspective of the, the objective reasonable person. And so in the end, this would be a question for the jury to decide whether you acted as, as a reasonable person, but you, you kind of think about it like this. PUBLIUS: Could you give an example of how this reasonable person standard works in a more common situation? GREG DICKINSON: One of the more common accidents you might have is a car accident. And so you, you would say, well, in this situation, the driver was driving down the street and they, they had, you know, their hands at 10 and two, whatever you're supposed to do, when you're driving down the street. It's been a while since my driving instruction days, but something like that, they were staring straight ahead, watching where they were going, using their turn signals. And then a cyclist, fell over sideways, right into the road and, and they run over their bicycle. and so you'd ask, well, in damaging that bicycle in that accident was the driver of the car, driving the car, as the hypothetical reasonable person would. And so we'd ask, well, what would a reasonable person do when they're driving a car? Driving a car is dangerous. you could definitely hurt somebody doing it if you don't do it carefully. And so what does the reasonable person do? Well we, we look at things like, were they distracted? Were they looking down at their phone? Were they playing with the radio? Were they maybe, looking out the window, not paying attention. We would ask, you know, what does the reasonable person do? And after we've decided what the reasonable person does, we say, well, did the defendant in this particular case live up to that standard? Did they actually live up to the standard of behaving as what we think of as the, the reasonably prudent driver? And if they did, There's been no breach of their duty, to act reasonably. But if, if it turns out that instead of driving with their hands at 10 and two, they had maybe just their knee on the steering wheel while were, trying to seatbelt in their kid, well, we'd say that's maybe not how a reasonable person would drive a car. if you're a reasonably prudent, reasonably careful person, you're going to pull over. If you need to do something like that, you're not gonna do it while you're driving. and so there you would say the reasonable person's standard is violated. Now, that's not an easy question. Because it involves getting in your mind the picture of what a reasonable person does. But that is the precise question, is what would a reasonably prudent person do here? And did you defendant live up to that standard? Did you or did you fail to meet that standard? PUBLIUS: Let's talk more about the definition of battery. Could you explain the key elements of battery as a tort? GREG DICKINSON: Battery, perhaps the most basic tort, is somebody acts, and their intent is to cause contact with another person. And that contact that is intended is of a type that is harmful or offensive. And then they do it, and then it happens. So you have those key elements, an action, an intent to cause contact. And then the contact is of a harmful or offensive type. And so one, one key thing to note here is that you don't need to intend to cause harmful contact. You just need to intend to cause contact that is of a harmful or offensive type, objectively. And so you could be not understanding the world and, and think that, your action was just going to touch somebody a little bit, and you, you end up really hurting them. If you intended to cause that contact you might still be liable for the tort of battery because you intended to cause contact and it it was of a harmful or offensive type, even though maybe you didn't realize it was going to be. And so the, the intent element is focused on the contact. And then the, the separate inquiry is whether that contact was harmful or offensive. So when talking about battery, I usually use something really simple. You, you talk about, like a bar room fight or something. That's what you, you get in mind like the wild West people, people swinging, empty wine bottles or beer bottles or something and, and really having a, having a fist fight in a bar, that's the kind of mental image that you want to think of. Of course, the tort of battery is much broader than that. But it's often helpful to have a stereotypical case in mind. And that's it. That's a bunch of people, intending to cause contacts with each other that are harmful or offensive contacts, and, and following through with them. and so people hitting each other there. There's a famous case that I teach, involving an altercation outside of a nightclub, that sort of thing, people setting out to and, and accomplishing harmful contacts on one another. PUBLIUS: How does assault differ from battery? Can you explain the distinction? GREG DICKINSON: So assault is very similar to battery, but importantly different, where the intent with assault is not to cause a harmful or offensive contact, but intent to cause an apprehension of harmful or offensive contact. And so here, you could think of it, I, if you're categorizing it away in your mental shorthand, this is intentionally, putting someone in fear, intentionally scaring someone, making them think that you're going to cause them harmful or offensive contact. And so, you know, pointing a gun at somebody and saying, I'm gonna shoot you. That would be kind of an extreme example, you know, if you're looking for a textbook example, that would be it. Saying I'm gonna shoot you. That's terrifying. You know, that would put you in, in immediate fear. And so the, the formal elements would be something like acting intending to cause in another person an apprehension of imminent harmful or offensive contact. And there's uh few sticking points here or, or a few things to realize. Assault requires that the perceived or threatened contact be imminent, meaning that it, it has to be like, it's really gonna happen. And so there's a, a famous case involving a telephone operator back in the days when you had to call into a central location and then get your call routed. So somebody was talking with the telephone operator, they got into a disagreement and, and threatened her. Said something like, if, if I weren't such a gentleman there, I'd, I'd come there and ring your neck, you know, something like, and the, the question for the court was, well, is that, is that an assault? On the one hand, you know, that's, that's a lousy thing to say to somebody. But on the other hand, how's this guy gonna do that? He's gotta get in his car, he's gotta drive away. And so he's, there's some physical distance from this, both in, in time, and in space. It's gonna take a while and there's some physical distance and also, remember the beginning of that sentence was if I weren't such a gentleman. And so he, he's actually not literally said, I'm about to come and, and ring your neck, or, or, here I am right now coming to ring your neck. He said, if I weren't such a gentleman. And so those sorts of things can very often undermine what would otherwise seem like a valid assault claim, because it's too remote. It's not like I'm about to do it. It's not imminent, or I've qualified it in some way and said, I'm not actually going to do it, but I, I, almost am inclined to. So when you're thinking through assault, that's often a key element to look for is, is this, perceived threat of physical, harm or offensive contact, is it truly imminent, is it truly about to happen. And so that, that's, the bar examiners love to, to do stuff like that where it's a very obvious threat, but not quite imminent enough. One of my favorite cases, actually, one of the oldest cases in in English law involving this sort of thing is an assault case, that involves, remember, assault is an action intended to cause another person apprehension of harmful or offensive contact. So they're, they feel like, oh no, this is, this is coming my way. I'm about to be contacted harmfully or offensively. And in one of the old cases in this involves a tavern owner was operating a tavern. Somebody shows up at his tavern at night, wants to come in. I don't know if he wants a drink or he wants some place to stay, but the, the place is closed. It's closed for business. He can't get in. He can't get in and get his drink like he wants to. And he starts pounding on the door and threatening, and he, he pulls out a hatchet. And the tavern owner and his wife is, is kind of looking out, out the window, probably yelling at him, saying, Hey, get outta here. We're closed. and he swings the hatchet at her, trying to hit her. He, he's trying to hit her with the hatchet. Can you imagine? You know, you wanna drink so bad, you're gonna hit somebody with a hatchet. But anyway, this is what happens. But she's, thankfully, she's able to dodge it. She gets out of the way. And so the question is, well, well, what is this? Is this an assault? Is it a battery? He was trying to hit her and he, he, ended up not, and so the, the answer would be, well, this is an assault. He swung at her, trying to hit her, but she didn't get hit. But she surely, as the swing was coming her way and she thought to dodge it, she was in apprehension of imminent harmful contact. And so that's an example of an assault, putting someone in an apprehension of imminent harmful or offensive contact. Whereas if he had hit her, you know, thankfully he didn't, but if he had hit her, well that would be a battery. You know, you, you actually succeeded in this. And, it, you don't always want to think of assault as like an attempted battery, cuz that that's not accurate. You can commit an assault without attempting to commit a battery at all. You can just point a gun at somebody never intending to shoot them. But saying, I'm gonna shoot you. That's an assault, even though you never wanted to. But an assault can also look like a battery that you tried, but, but didn't actually succeed. If they saw it coming and, and tried to get outta the way, then that's an assault too. And so very often a situation that involves a battery will also involve an assault because if you, if you punch somebody in the face and they see it coming, well, that's, that's a battery. but it's also an assault because for, for some moment of time they saw it coming and apprehended, the imminent, contact coming their way. And so the two often go together, but it's important to be able to mentally separate them, because, many times they, they aren't together. Thank you for listening to this episode of the No. 86 Lecture series on Tort Law. The spirit of debate of our Founding Fathers animates all of the No. 86 content, encouraging discussion and critical reflection relative to how each subject is widely understood and taught in law schools and among law students. Subscribe to the No. 86 Lecture series on your favorite podcast platform to have each episode delivered the moment it's released. You can also go to no86.fedsoc.org for lectures and videos on Federalism, Contracts, Jurisprudence and more. Thanks for listening. See you in class!