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 Gregory Dolin, who is a Professor of Law at the University of Baltimore, where he teaches Torts, Contracts, Property, Intellectual Property, Federal Courts, and Constitutional Law. 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 Dolin, what are the different categories of torts? Does it matter if a harm was caused intentionally or unintentionally? Gregory Dolin: Torts can be divided into several categories. There are of course, intentional torts where you intend to cause harm. There's negligent torts where you don't intend to cause harm, but accidentally you do. And there's strict liability, which is where you don't intend to cause harm. You don't accidentally do it, but it's just sometimes, even actually you did everything you were supposed to do right, but nevertheless, bad things happened. And the question is to whether or not you should pay for it. Intentional torts are generally in some sense the easiest ones, which is why I start my course with them. And I think the idea of intentionality is important because, I mean, kind of for obvious reasons that you don't want people to go out and intentionally commit bad acts. It seems kind of a moral failing, if people go out and threaten others, people go out and punch others. People go out and invade other people's property. People go out and steal other people's things, right? People go out and purposefully, offend, right? So, you know, say invade, say a private funeral ceremony to say mean things about the deceased. Things like that. And I think kind of this idea that we ought to kind of as a citizen of the free world ought to feel secure in our persons, in our possessions, in our dignity against purposeful invasion of those things by others is very deeply embedded. I think that's kind of what makes us free and to allow people just to go around and injure us on purpose, seems so just very offensive. And so that's why, and tort law doesn't look kindly upon it. Now it's important to understand that when we talk about intentional torts, and we're talking about intent, we're not necessarily talking about intent to commit the injury. So going back to the Vosburg versus Putney case. In Vosburg versus Putney, the boy Putney did not intend to injure his classmate, Vosburg. Did not intend for Vosburg to go through two rounds of surgeries and be laid up in bed for months on end. He merely intended to touch him, but that touch, because the teacher had already called the class to order and students were supposed to be paying attention as opposed to roughhousing as they would be doing during the break, that touch was wrongful, and that touch was committed intentionally. Putney did not have a seizure, where he accidentally touched someone. Putney did not like somehow, you know, he was just trying to move his desk and accidentally tapped Putney. He touched his classmate on purpose. And that touch was not consented to. And that touch given its time and place was wrongful or illegal. And I don't mean illegal in a criminal sense, I mean illegal contrary to our legal standards. And because he did that - and because he did it on purpose - he's then on the hook for all the bad consequences of his bad behavior. So when we talk about intentional torts, we talk about an intent to commit a wrongful act in Vosburg v. Putney an act of touch. In the case we talked about, about North Carolina trespass, you intended to enter this piece of property, right? You didn't intend to commit a wrongful act, right? So you didn't intend to steal somebody's property. You actually thought it was yours, but you intended to enter this piece of land. And because this piece of land is not yours, that act is wrongful and therefore you're liable for the consequences of your act. So you don't need to necessarily intend to be bad, you just need to intend to commit a bad act. PUBLIUS: What about situations where harm is caused but neither the harm nor the act was intended? Such as touching someone by accident. Gregory Dolin: So for example, on, on battery. So imagine you're riding a subway, right? And, all of a sudden there's a jerky stop, right? And you get sort of thrown a little bit and while doing that, you just try to grab onto something, right? Or maybe you're not even trying, but kind of, you're sort of, you're somewhat discombobulated. And as you're falling sort of forwards or backwards, you end up landing your hand on somebody, right? Maybe you end up landing on your hand on somebody's rear end? Where generally you don't go around touching people. You generally don't go around touching people, certainly don't go around touching people unconsented to in that fashion. That's not battery, right? The person who you've touched may be startled, right? But that's an accidental touch, right? You didn't intend to commit that touch, right? And even though the person whom you touched may be startled, the person you've touched may be annoyed,the person you touched maybe even turned around and yelled at you what the hell are you doing? Right? That's not battery, because you had no intention to commit that touch. The only reason you ended up doing it is because the train had this unexpected jerky stop. Contrast it, with somebody who goes around on the subway and actually sexually assaults women by grabbing them, So it does, in some sense, it doesn't matter that, you know, such a person in his own mind actually, thinks, you know, well, “I don't intend to cause anybody any harm. I'm just, you know, I'm just playing around. You know, I think it's funny.” It doesn't matter what that person thinks is fine. He goes intentionally touching riders on a subway in a way that they're not supposed to be doing. Whether or not he thinks it's a joke, whether or not he thinks it's like it's no big deal. It doesn't matter, right? The act itself is wrongful, Whether or not he intends to potentially hurt a particular victim or not, or whether or not, for example, if he does go around doing that, a particular victim is somewhat particularly vulnerable because, you know, they have some sort of medical condition or prior experience or whatever else. And so he causes more damage than he thought he would've caused. Doesn't matter. Right. So in some sense you can say, oh, there's the same situation. Both times the hands end up in the same place. But the intent is different. And in one case, basically the intent is just to balance yourself and you just end up accidentally touching someone. And another, your intent is actually to go around grabbing people without their consent. PUBLIUS: So the example with the man intentionally touching women without their consent is an example of battery. What other types of intentional torts are there? Gregory Dolin: There are several intentional torts. I don't teach all of them because you can spend the entire semester doing them. But the top ones that are generally taught are assault and battery, so they're similar. Where, the big difference between assault and battery is assault is essentially a threatened touch, and battery is a touch that actually occurs. Trespass is when you enter into land of, of another, without authorization or consent. Trespass to chattels, which is where you possess the property, the tangible property of another not real property. Intentional infliction of emotional distress, are the ones that I teach. There are of course others such as defamation, libel. There's a number of other ones, but those are, um, defamation and libel, the reason I don't teach 'em is because they're hard to teach, in part because they have, at least in the US they have a lot of, interaction with constitutional law and constitutional protections because of first amendment concerns. So what can and can't you say? And so, how, for example, it applies to public figures versus not public figures. So I leave that for my ConLaw colleagues. But there are kind of the basic ones. So assault and battery. You can think of several situations, I'll give you examples cause you can have one without the other. You can have battery without assault. You can have assault without battery or you can have both. So imagine the following scenario. I come up to you and I punch you in the face. That's probably both assault and battery. Why is it battery? Because I've landed the punch, So I've touched you without consent. It's also likely assault because at some point they can be a very brief point, but you saw my fist moving towards your face. So you had apprehension, so you had fear of imminently being touched. So a single action can be both assault and battery. Here's this hypothetical situation where it's just assault but not battery. I come up to you and I start shaking my fist in your face and say like, you know, I'm about to punch you, Or I dare you to do this and to see what happens. So I haven't landed a punch yet, but you are placed in fear of imminent, unlawful touch. And then you can imagine a battery without assault. Imagine you are sleeping. I come up to you and punch you in the back of the head before you wake up, right? It's battery. But because you didn't perceive you, you had no apprehension because you were sleeping, right? There's no assault. So assault is all about, are you put in apprehension of immediate or physical unlawful touch. Whereas battery is, has that touch actually happened? It's different from a tort of intentional infliction of emotional distress because, for example, I started shaking my fist a gun in your face or whatever else. I haven’t physically hurt you. So it makes perfect sense that your damages are necessarily emotional, right?   You can have an emotional reaction when people start uh, waving a gun in your face. That makes perfect sense. That's not a tort of intentional infliction of emotional distress, that’s merely saying that your damages happen to be emotional. So they're not physical, physical as if I actually do punch her if I actually do shoot the gun. But, from assault, your damages are damages to your sense of safety, sense of security, in that sense, intentional infliction or emotional distress. And so what is often referred to is like your damages, your emotional damages, whether you've been hit or not, right? Because for example, if you actually been hit, maybe now you have emotional concerns, you're afraid to go on the street, you might have PTSD, right? If you had some sort of, serious battery, done to you. But in those situations, the word is your emotional damage to a parasitic on your physical damage, right? If you were beaten, the primary damage is physical damage. And because of that you have PTSD. And so emotional damages are kind of, they attach onto your physical damage. They're parasitic on it. IIED is a standalone tort where they're basically the only damages are emotional and they stem from me not trying to assault you and not trying to] batter you, but me, trying to purposefully elicit just an emotional response. PUBLIUS: You mentioned IIED - intentional infliction of emotional distress. What’s an example of what that looks like? What’s required to prove that IIED has occurred? Gregory Dolin: So the classic case I teach, is, also I teach a lot of 19th century cases, in part, and I prefer doing that even though sometimes students object because they think that why, why can't you do something more recent? And I prefer doing older cases in part because saying like, look, we are familiar with that technology. We've done it for so much, we can now in retrospect look back and say, did we get it right or wrong? So the classic case that I teach is, 19th century case where a guy shows up at this woman's house and, I think he's about to play a practical joke. And he says, you know, your husband who I work with, he's gravely injured. He's out there lying in the field. And, the only thing that will help him if you just rush off to him with your two home pillows and just like, help elevate his legs or whatnot. And so the woman freaks out and she does that, which I always think is maybe that makes me a bad person. But I think is a very amusing sight. So in her petticoat and like in two homemade pillows, she's trying to rush out of the house, one under each arm, and of course it's all a practical joke. Her husband is perfectly fine. But she's completely, besides herself. She is, you know, she had to seek professional help. She had to, she of course spent money also on a cab to get there. And so she sues this jokester and his defense is like, oh, come on. It's just a joke. Like kind of no harm, no foul. And I actually spend some time with my students saying, would this case come out the same or would it come out differently today? And I ask the students, like, imagine somebody showing up at your house inside your husband, your wife, your significant other, your parent is gravely injured, what's the first thing you would do? And some students say, wow, I would immediately rush over there. I'm like, really? Will that be the first thing you would do? And eventually like, well, no. Maybe the first thing I would do is I'll pick up my cell phone and call them. And I'm like, exactly right. And you will figure out it's a practical joke. And then you'll tell the reporter, he's a jackass. And that'll be basically the end of the story and I kick him out of the house. You also would generally know, as bad as it might be to have your loved ones injured, that we have a system in place that will help take care of it. They may have health insurance, they may have all sorts of things. Put yourself in the shoes of this woman in the 19th century, healthcare is rudimentary. The welfare system doesn't exist. Women don't work, right? So if anybody's bringing any money home, it's gonna be the husband. So if what is being told her is true, not only is her loved one potentially, you know, gravely injured and or soon to die because the healthcare system's rudimentary, but they have just been consigned to a life of poverty, as described in Dickensian novels, right? So that is a huge emotional toll. So to get back to what's his intentional infliction, emotional distress, is this idea that this jokester shows up. And while he might think it's a practical joke, his whole point, what he's doing is to provoke a deep emotional response. Now, he didn't think he's gonna be that bad, right? He didn't think he's gonna be that terrible. But the whole idea of this practical joke is to worry this woman, right, he's not inflicted any physical damage. So her damages are purely emotional. And they're not parasitic on anything else. And in certain cases, when the elements of IIED are met, and they're actually not easy to meet, that emotional response alone is compensable, without need for a physical damage. PUBLIUS: It sounds like consent plays a large role in how torts cases are handled. Can you tell us more about what constitutes consent? Gregory Dolin: So what makes Torts intentional is usually lack of consent, right? You can absolutely consent to battery, we have entire sports dedicated to battery right? Boxing. The entire sport is just hitting your opponent as hard as you can. We have situations where you consent to enter somebody's property, right? You invite guests over all the time, and they're not trespassers, they're invited guests. We have situations where you can consent to, to somebody trying to scare you, So, for example, go to some sort of attractions in places like Disneyland or whatever, where there could be people jumping out, you know, characters jumping out from like dark corners. You consent to being scared. And generally speaking, consent is a defense, if validly given, consent is generally a defense to any allegation of intentional tort. So, one of the cases I teach is O'Brien v Cunard Steamship. O'Brien is sort of an interesting case. So it's an Irish woman. She's immigrating to America. And at the time when, smallpox is still a thing, and the United States requires smallpox vaccination, or quarantine. So, and the Cunard Steamship company as kind of as a service to their clients, they offer onboard vaccination so they can avoid quarantine. Ms. O'Brien explains to the ship doctor saying, look, I've either been vaccinated before, or I had the disease before, so I don't need it. And then doctor kind of shrugs his shoulders says like, okay, well your choice, either vaccination or quarantine. And then she basically gets in line, sticks her arm out without saying anything else. She doesn't say, yes, I want a vaccine. She kind of, she has her arm out and she gets stuck with the needle and then she sues the doctor and the steamship company for battery saying, I told him I actually don't want that vaccine and he stuck me anyways. And the court says, number one, consent is an absolute defense. And number two, and I think also it goes something we discussed before, how do we judge people's behavior? How do we judge intent? So not only how do we judge bad behavior, but how also do we judge good behavior? And the court says, consent can also be judged only objectively. We can't know what's going on through Ms. O'Brien's mind at any given time, but we can judge what was the objective manifestations of her behavior. And the court says she was in line where people were getting vaccinated. She stuck her arm out. She didn't say why. Given the context, the doctor could assume that she stuck her arm out, not to shake his hand, not to kind of to wave to the Statue of Liberty, but to get a vaccine. And even though she didn't say it, she didn't mouth the word yes, the physical act was sufficient to indicate consent, even though she maybe privately thought something else. So it goes to, again, the subjective standard. So, but all that having been said, consent has to be valid. So another case that I teach involves actually boxing but it involves an underage boxer, who agrees to box for a price of $5 in the 1940s, which you know is much more money than it is now and gets injured. And he sues and, of course, he sues the boxing promoter and the boxing promoter says like, wait a second, you've consented. You, in fact, you got paid for it. And the Supreme Court of California says, well, yes, kind of on paper the person consented, but he was underage. California has a whole regulatory regime of who can and who cannot box. You have to get a whole license. There's a whole like gaming commission. We did it for a reason because we don't want basically street fights encouraged for like a $5 a pop, so the consent is invalid. And so, and you know, that comes up all the time in today's day and age, right? So for example, you can say, look, somebody consented to a medical procedure would say, oh, they're a minor, right? Or somebody consented to say a sexual act, but we can say, look, they're a minor, or they're incompetent. Or they're a prisoner, right? So you can say, yes, somebody said the word yes, but for various legal reasons that yes, doesn't count, right? And so,we'll discount it. But, so that's how consent works. PUBLIUS: What about situations where you didn’t consent to an act but someone is doing it to try to help you? Gregory Dolin: So when we are gonna talk about negligence, we're gonna talk about a doctor screwing up and doing something incompetently. Doing something worse than a reasonable physician would've done. But imagine a world where a doctor does something perfectly, the best in the world, but something you did not agree to. He actually makes you better here. You're gonna live longer, you're gonna have less pain, and yet you didn't agree to it. That still is battery, which is why, you know, yes, doctors ask for consent forms, which is why, those consent forms are oftentimes long and detailed. Because when you consent, like I said, it's not just are you the right age? Are you in your right mind? But you also need to know what you're consenting to. And so the doctor doesn't tell you there is the risk of X or there is a risk of Y basically doesn't actually explain what exactly is gonna happen and what's gonna be the scope of the procedure. So there is, for example, a case that I teach, where a woman comes to a doctor, this is kind of early 20th century. She comes to a doctor and she says, look, I have a problem with my ear. It's just something that is a problem there. And so he looks and he sees there's some obstruction in the ear. He can't quite fix it. Says, look, you need surgery. Put you under that way I can manipulate better and I can take out whatever is bothering you. And he says like, it's, it's your right ear. And so she goes under, she goes under anesthesia. He finally can, you know, manipulate, like stick all sorts of instruments in there without being afraid that he's gonna hurt her and realizes that actually the left ear is worse off than the right ear. He says, you know what, I'm gonna fix the left ear because that's really what the problem is. I thought, I got consent on the right ear, but really now that I see what's going on, it's really sort of, the left one. And so he does. Unfortunately it doesn't solve the problem, but there's no allegations he did anything wrong. There's no allegations the surgery was done poorly. Just, you know, as we all know, sometimes medical interventions don't actually work, right? We try, but it doesn't happen. So she can't sue him for malpractice because he didn't fall below the standard of care. She sues him for battery. So, like, I let you operate in my right ear. Nobody told you you can touch my left ear. And the court said that she's right because there was no consent for that. Which is why today oftentimes the forms are kind of saying like, look, and maybe we can do these things, but doctors explain to you what else might be done. Once kind of they open you up and see what, what other problems might exist. 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!